In Vinod Dua’s case (2021), theSupreme Court of India hasreaffi�rmed the law of sedition

laid down in Kedar Nath Singh(1962) and directed governmentsto adhere to it. This reaffi�rmationseems to be a little problematic.The Kedar Nath judgment upheldthe constitutional validity of sedi-tion as defi�ned in Section 124A ofthe Indian Penal Code. And theCourt read down the provision byholding that only writings orspeeches which incite people toviolence against the Governmentwill come within the mischief ofsedition. So, as per this judgment,unless speeches or writings tendto cause violence or disorder,there is no sedition.

Issue of ‘disaff�ection’Section 124A of the IPC, whichcontains the law of sedition, cate-gorises four sources of seditiousacts. They are, spoken words,written words, signs or visible re-presentations. The gist of the of-fence is: bringing or attempting tobring the government into con-tempt or hatred, or exciting or at-tempting to excite disaff�ection to-wards the government. There arethree explanations attached to thissection. The fi�rst explanation saysthat ‘disaff�ection’ includes dis-loyalty and all feelings of enmity.The second and third explanationssay that one can comment on themeasures of the government orother actions of the governmentwithout bringing or attempting tobring it into contempt or hatred orexciting or attempting to excitedisaff�ection towards the govern-ment. These explanations do notconvey anything diff�erent from

what the defi�ning section says. Here is an illustration. If a per-

son writes that the Government isvery good but the vaccine policy isbad, perhaps he may not attractthe charge of sedition as per theexplanations. But he should inva-riably state that the government isvery good. If he only says that thepolicies and actions of the govern-ment are consistently bad anddoes not say that the governmentis very good, he is liable to becharged with sedition. The recentexamples of sedition cases amplyprove this point.

The Supreme Court’s assertionin Kedar Nath that there is seditiononly when writing or speech canlead to violence or disorder hasconsistently been ignored by go-vernments all these years, and citi-zens of all ages have been chargedwith sedition for merely criticisingthe authorities. The Lakshadweepcase is the latest example.

The problem actually lies in thefact that the law of sedition wasnot struck down by the SupremeCourt in 1962 as unconstitutional.There was every justifi�cation fordoing that because sedition, as de-fi�ned in Section 124A of the IPC,clearly violates Article 19(1)(a) ofthe Constitution which confers theFundamental Right of freedom ofspeech and expression, the mostvaluable right of free citizens of afree country.

Not a reasonable restrictionFurther, this section does not getprotection under Article 19(2) onthe ground of reasonable restric-tion. It may be mentioned in thiscontext that sedition as a reasona-ble restriction, though included inthe draft Article 19 was deletedwhen that Article was fi�nallyadopted by the Constituent As-sembly. It clearly shows that theConstitution makers did not con-sider sedition as a reasonable res-triction. However, the SupremeCourt was not swayed by the deci-sion of the Constituent Assembly.

It took advantage of the words ‘inthe interest ... of public order’used in Article 19(2) and held thatthe off�ence of sedition arises whenseditious utterances can lead todisorder or violence. This act ofreading down Section 124Abrought it clearly under Article 19(2) and saved the law of sedition.Otherwise, sedition would havehad to be struck down as unconsti-tutional. Thus, it continues to re-main on the statute book and citi-zens continue to go to jail notbecause their writings led to anydisorder but because they madecritical comments against theauthorities.

A few ironiesA great irony here is that the law ofsedition, which should have goneout of the Statute Book when theConstitution of India came intoforce, was softened through inter-pretation and made constitution-ally valid by the Supreme Court.This law was enacted by the Brit-ish colonial government in 1870with the sole object of suppressingall voices of Indians critical of thegovernment. James Stephen, theauthor of the Bill, had clarifi�edthen that not only critical com-ments but even a seditious disposi-tion of a person will attract this pe-nal law. It was the policeman whowould decide whether a person’sdisposition was seditious.

The history of this most draco-nian law during colonial rulewould reveal that the basic propo-sitions laid down by Stephen havebeen followed by courts in all cas-es on sedition before Indepen-dence. In the Bangobasi case in1891, Bal Gangadhar Tilak’s case in

1897 and 1908 and Mahatma Gand-hi’s case in 1922, the High Courts,and ultimately the judicial com-mittee of the Privy Council, consis-tently held that incitement to vio-lence or rebellion is not anecessary part of sedition underSection 124A of the IPC and a merecomment which the authoritiesthink has the potential to causedisaff�ection towards the govern-ment is seditious and the personcan be arrested and put on trial.Justice Arthur Strachey, while stat-ing the law of sedition before thejury in Tilak’s case, had made it ab-solutely clear that even attemptsto cause disaff�ection would attractthe provision, meaning therebythat rebellion, disorder or vio-lence are not an ingredient of sedi-tion. This statement of law by Jus-tice Strachey was approved by thePrivy Council.

The Supreme Court, while deal-ing with Kedar Nath, faced a trickysituation. On the one hand, therewas the overwhelming judicialopinion saying that in order to at-tract sedition, a critical commentwhich causes disaff�ection towardsthe government or bring the go-vernment into hatred or con-tempt, is all that is necessary. Ifthis opinion were followed by theSupreme Court, sedition in the IPCwould have become unconstitu-tional. But the top court, for someunexplained reason, did not wantto hold it unconstitutional. So, itadopted the reasoning given bythe Federal Court in NiharenduDutta Majumdar vs Emperor in1942 in which it was held that thegist of the off�ence of sedition is pu-blic disorder or a reasonable ap-prehension of public disorder. Infact the Privy Council’s statementof law of sedition had clearly heldthat public disorder was not an in-gredient of sedition. The SupremeCourt itself admits that the FederalCourt did not have the advantageof seeing the Privy Council’s state-ment of law, otherwise it wouldhave affi�rmed the Privy Council’s

view. Here we cannot miss the irony

that the Supreme Court’s attemptto read down Section 124A, to sof-ten it and make its application con-ditional on public disorder, hasmade this colonial law constitu-tionally valid which otherwise it isnot. On the other hand, if the jud-icial opinion on sedition given dur-ing the colonial period had beenaccepted, it would have been heldunconstitutional and free India’scitizens would not have beenthrown into jails for criticising thegovernments.

Impacting rightsIn the ultimate analysis, the judg-ment in Kedar Nath which readdown Section 124A and held thatwithout incitement to violence orrebellion there is no sedition, hasnot closed the door on misuse ofthis law. It says that ‘only when thewords written or spoken etc.which have the pernicious tenden-cy or intention of creating publicdisorder’ the law steps in. So if apoliceman thinks that a cartoonhas the pernicious tendency tocreate public disorder, he will ar-rest that cartoonist. It is the perso-nal opinion of the policeman thatcounts. The Kedar Nath judgmentmakes it possible for the law enfor-cement machinery to easily takeaway the fundamental right ofcitizens.

In a democracy, people havethe inalienable right to change thegovernment they do not like. Peo-ple will display disaff�ection to-wards a government which hasfailed them. The law of seditionwhich penalises them for hating agovernment which does not servethem cannot exist because it vio-lates Article 19(1)(a) and is not pro-tected by Article 19(2). Therefore,an urgent review of the Kedar Nathjudgement by a larger Bench hasbecome necessary.

P.D.T. Achary is former Secretary General,Lok Sabha

The law of sedition is unconstitutionalAn urgent review of the Kedar Nath judgment is necessary as ‘sedition’ violates the basic right of speech and expression

P.D.T. Achary

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