Sedition is considered to be an offence against the state and through Section 124A[i] of the IPC it punishes any act that subverts the government established by law. The rationale for the criminalisation of such acts is generally that it fosters “an environment and psychological climate conducive to criminal activity” even though it may not incite a specific offence.[ii] Furthermore, the core elements of sedition are bringing or attempting to bring contempt, hatred or disaffection towards the government.[iii]
If we refer to the essential ingredients for the law of sedition, then they can be divided into four parts, namely- (i) words, signs, visible representations or otherwise; (ii) brings or attempts to bring into hatred or contempt; (iii) excite disaffection; (iv) government established by law.[iv]The objects of sedition are generally to induce discontent and insurrection, and stir up opposition to the Government, and bring the administration of justice into contempt; and the very tendency of sedition is to incite the people to insurrection and rebellion.[v]
Disaffection means a feeling contrary to affection, in other words, dislike or hatred.[vi] If a person uses either spoken or written words calculated to create in the minds of the persons to whom they are addressed a disposition not to obey the lawful authority of the Government, or to subvert or resist that authority, if and when occasion should arise, and if he does so with the intention of creating such a disposition in his hearers or readers, he/she will be guilty of the offence of attempting to excite disaffection within the meaning of the section, though no disturbance is brought about by his words or any feeling of disaffection, in fact, produced by them.
In the Landmark judgement of Kedar Nath it was held that “It is sufficient for the purposes of the section that the words used are calculated to excite feelings of ill-will against the Government and to hold it up to the hatred and contempt of the people, and that they were used with the intention to create such feeling.”[vii] It means hatred, enmity, dislike, hostility, contempt and every form of ill-will to the Government. if a man excites or attempts to excite feelings of disaffection, great or small, he is guilty under the section.
The court had further observed in the said case that the right guaranteed under Art 19(1) (a) is subject to such reasonable restriction as would come within the purview of clause (2), to Art 19 which comprises (a) security of the State, (b) friendly relations with foreign states, (c) public order, (d) decency or morality, etc.
In the case of Queen Empress v. Bal Gangadhar Tilak,[viii] the Court interpreted §124A mainly as exciting ‘feelings of disaffection’ towards the government, which covered within its ambit sentiments such as hatred, enmity, dislike, hostility, contempt, and all forms of ill-will. It expanded the scope of the offence by holding that it was not the gravity of the action or the intensity of disaffection, but the presence of feelings that was paramount and mere attempt to excite such feelings was sufficient to constitute an offence.
It is true that it is not sedition to criticise administrative machinery or the officers of Govt. but where the speaker exceeds the limits of fair criticism and his object in attacking the existing Govt. is to create disaffection the speech amounts to sedition. shows a deliberate design to excite feelings of disaffection towards the Government established by law in British India, or to bring that Government into hatred and contempt. The nature and tone of the article.
To come within the protection of the section a writing must not only consist of making comments on government actions with the intent of eliciting only disapprobation of the measures, as opposed to disaffection with the government, but the disapprobation must also be ‘compatible' with a willingness to obey the lawful authority of the government and to defend the lawful authority of the government against unlawful attempts to subvert it. And it is a disposition to support that lawful authority against unlawful attempts not only to ‘resist’ it—that is, to oppose it, but also to ‘subvert’ it—that is, to weaken and undermine it by any unlawful means whatever.[ix]
Further, the word "disaffection" in the section is used in a special sense as meaning political alienation or discontent or disloyalty to the Government or existing authority.[x] They also held that the meaning of word "disaffection" in the main portion of the section was not varied by the explanation. Moreover, the word "disaffection" does not merely mean the absence or negation of love or good will but a positive feeling of aversion, which is akin to ill will, a definite insubordination of authority or seeking to alienate the people and weaken the bond of allegiance, a feeling which tends to bring the Government into hatred and discontent, by imputing base and corrupt motives to it.[xi] In Queen Empress v. Amba Prasad,[xii] Edge, C.J., made copious quotations from various judgments of the Calcutta and the Bombay High Courts. The learned Chief Justice observed that a man may be guilty of the offence defined in §124A of attempting to excite feelings of disaffection against the Government established by law.[xiii]
Sedition means sedition or incitement to mutiny or disaffection from the Sovereign.[xiv] "Sedition is a crime against society, nearly allied to that of treason, and it frequently precedes treason by a short interval."[xv] The Sedition Law in India has its roots in the English Law. The English law considered two important constituents of sedition (1) the oral or written publication of words with (2) an agreement to further a seditious intention.[xvi] Section 124A IPC states that for the commission of offence of sedition is with the object to “excite or attempts to excite disaffection towards the government established by law.”[xvii] is said to have committed sedition.
As per the colonial definition of Sedition, it is caused by discontent or dissatisfaction, to create public disturbance, or to lead to civil war[xviii] to bring into hatred or contempt the Monarch or the Government, the laws or constitutions of the realm, and generally all endeavours to promote public disorder. It has become obsolete, redundant and abridged from colonial English law and does not suit the democratic setup of the Indian in the present day/
The context of sedition law and the its constituents are derived from colonial rule and different from the context of a democratic political setup in India.[xix] The objective of the sedition provisions in India was promulgated by the British Raj to help control its Indian subjects. The essence of democracy is criticism of Govt.[xx] The public opinion has changed considerably since and now that India has a democratic Government and therefore a line must be drawn between criticism of the Govt. which should be welcome. [xxi] Law of sedition thought necessary during a period of foreign rule has become inappropriate by the very nature of the change which has come about.[xxii]
[i] Pen. Code, § 124-A (India).
[ii] Modechai Kremnitzer & Khalid Ghanayim, Incitement, Not Sedition in Freedom of Speech and Incitement against Democracy 147, 197 (2000).
[iii] Tanya Agathocleous, Reading for the Political Plot: A Genealogy of Disaffection, 61 Theories of the Nineteenth Century 569, 572 (2019).
[iv] Pen. Code, § 124-A (India).
[v] Nazir Khan & Ors. v. State of Delhi, (2003) 8 SCC 461.
[vi] Queen-Empress v. Jogendra Chunder Bose, ILR (1892) 19 Cal 35; Queen Empress v. Bal Gangadhar Tilak, 1897 SCC OnLine Bom 3.
[vii] Kedar Nath Singh v. State of Bihar, AIR 1962 SC 955.
[viii] Queen Empress v. Bal Gangadhar Tilak, 1897 SCC OnLine Bom 3.
[ix] Queen-Empress v. Amba Prasad, 1897 SCC OnLine All 82.
[x] Paramanand v. Emperor, AIR 1941 All 156.
[xii] Queen-Empress v. Amba Prasad, 1897 SCC OnLine All 82.
[xiv] Codification of the Criminal Law- Treason Sedition and Allied Offences, Law Commission UK
[xv] R. v. Sullivan, (1868) 11 Cox C.C. 51 (US).
[xvi] Smith and Hogan, Criminal Law (3rd ed., 1973).
[xvii] Pen. Code, § 124-A (India).
[xviii] Nazir Khan & Ors. v. State of Delhi, (2003) 8 SCC 461.
[xix] Meher Manga, Sedition Law: A threat to Indian Democracy?, Observer Research Foundation.
[xx] W. Hasbach, The Essence of Democracy, 9 Am Polit Sci Rev. 50, 53 (1915).
[xxi] R.K. Mishra, Freedom of Speech and the Law of Sedition in India, 8 JILI 117, 123 (1966).
[xxii] Constituent Assembly of India Debates (Proceedings)- Volume VII, Parliament of India Lok Sabha.