CHAPTER-7

CONCLUSION AND SUGGESTIONS

(7.1) CONCLUSION:
The Sedition Act seeks to limit and control freedom of expression far beyond
what is permissible under International Law. The Sedition Act must be given a narrow
interpretation having regard to the particular Rights at issue, namely freedom of speech
and expression and liberty of the persons, and the purpose of the restriction. The purpose
of restricting speech under the Sedition Act is protection of National Security. However
according to International Human Right Law, as freedom of expression is fundamental to
a functioning democracy, it can be restricted only with regard to serious threats to
National Security. The exercise of the Right to freedom of expression cannot be punished
on the basis that a statement might possibly jeopardize National Security.
Although on its face the Sedition Act is a Law of general application the
Government has been applying the Law in an arbitrary manner, in bad faith and for an
improper purpose to prevent political opposition. It cannot be said that the Sedition Act is
prescribed by Law or that persons charged with Sedition are being deprived of their
liberty of the person in accordance with Law. The effect of restriction- the stifling of all
political speech- is disproportionate to the aim of protection of the National Security.

The power of words can never be underestimated. Indeed words and language
may be the only thing that separates man from beast. It is the importance of words in the
continuing development of Civilization and Humanity and for the spread of ideas and
knowledge that causes more states around the world to protect words. This is done
through various means, the most important of which is the guarantee of the Right to free
speech. However words can be double edged sword. They can be used to determine the
authority of the very state that protects them. They can used to incite violence and
disorder against the state and citizens. In order to protect itself and its citizens the state
makes Sedition an offence. Sedition is a crime against society nearly allied to that of
treason, and it frequently precedes treason by a short interval. The objects of Sedition are
to induce discontent and stir up opposition to Government the very tendency is to incite
the people into insurrection and rebellion."

352
 This definition clearly lays down the main ingredient of Sedition as the incitement
of violence amongst the people, encouraging them to wage war against the state or its
manifestation, the Government. However, before independence the Law of Sedition as
interpreted for India excluding this vital trait. This meant that a broad range of speeches
and commentaries that criticized the Government of the day came under the preview of
Sedition, thus severely restricting free speech. A long line of judicial decision in India
held that incitement to violence was not an ingredient of the offence of Sedition, despite
the fact that incitement to violence had long been part of the offence of Sedition under the
common Law. All of this changed in 1942 when the federal court of India held that
incitement to violence and disorder or an intention to incite violence was an essential
element of the offence of Sedition. The decision was later overruled, but it formed the
basis of the narrowing down the scope of Section 124-A by the Supreme Court in Kedar
Nath v. State of Bihar.

The Indian parliament should immediately repeal the colonial- era Sedition Law,
which local authorities are using to silence peaceful political dissent, Human Rights
watch said today. The Indian Government should drop Sedition cases against prominent
Activists such as Dr. Bianyak Sen, Arundhati Roy, and others Human Rights Watch said.
"Using Sedition Laws to silence peaceful criticism is the hallmark of an oppressive
Government," said Meenakshi Ganguly, South Asia director at Human Rights Watch.
"The Supreme Court has long recognized that the Sedition Law cannot be used for this
purpose, and India's parliament should amend or repeal the Law to reflect this."

The International Covenant on Civil and Political Rights, which India ratified in
1979, prohibits restrictions on freedom of expression on National Security grounds unless
they are provided by Law, strictly construed, and necessary and proportionate to address
a legitimate threat. Such Laws cannot put the Right itself in jeopardy.

"Peacefully speaking out against Human Rights violations in at the heart of free speech,
not Sedition," Ganguly said. "The repeated misuse of the Sedition Law should be brought
to a stop."

353
 The Law of Sedition in other countries is by and large wider in scope than the
Law of Sedition in India as embodied in S.124A. In India the scope of the offence is
restricted to Seditious words and representatives, whereas in country like India includes
Seditious Acts as well. Only certain types of words are constructed as Seditious in India.
The category of Seditious words is wider in England. For instance, inciting communal
tensions coupled with an incitement to violence amounts to the offence of Sedition in
England whereas in India it is given the status of a lower offence. There may be a need to
adopt the English Law and practice in this regard given the danger posed to the ideas of
secularism enshrined in the Constitution by various religious fundamentalist groups of
late.

In the United States, the Law of Sedition grew in response to particular challenges
posed to the State. In addition to words and Seditious libel, membership to organization
that incites violence or the overthrown of the state also raises the presumption of
Sedition. However the Active participation in Seditious Activities has been held to be an
ingredient of the offence by the American Supreme Court.

The development of the Law of Sedition in America is a good illustration of how

historical circumstances affect the developments of offences against the State. The Smith
Act, an Act that deals with Sedition came into existence primarily to combat the
communist 'threat' to the United States. As the threat to Communism receded, such Acts
restricting the freedom of speech and expression lost the reason for their existence and
were repealed. This thesis is borne out in other countries. S. 124A of the Indian Penal
Code was not part of the original code and was introduced only later. It was enacted
primarily to reign in the press and vernacular newspapers that were adding fuel to the fire
of Nationalism in the country. After independence, there was a dramatic change in the
interpretation of the Section.

In recent times, most states have come face to face with the very real threat of
global terrorism. They have done this by Enacting Laws to combat terrorism. In India his
has taken form of the Prevention of Terrorism Act and in the United States it has taken
the form of the USA PATRIOT Act. In both countries several doubts have been raised

354
about restrictions imposed on the freedom of speech by these Acts. History may well
illustrate that such restrictions are necessary in the changing circumstances.

Chapter first is the Introductory Part which gives an outlook on law of Sedition.
By Sedition we mean “whoever by words, either spoken or written, or by signs, or by
visible representations or otherwise brings or attempt to bring into hatred or contempt, or
excite or attempt to excite disaffection towards the Government established by law in
India shall be punished with imprisonment for life. To which fine may be added, or with
imprisonment which may extend to three years to which fine may be added or with fine.
The word Sedition does not turn up anywhere in the Indian constitution and is an offence
against the state as enumerated in the Indian Penal Code in which Article 19 of the Indian
constitution hold great relevance. The contemporary discernment of Sedition in India
encompasses all these practices. Where by word, deed or writing that are reckoned to
disturb the tranquillity of the State and lead ignorant person to debase the Government.

Sedition is considered a subversive act and the overt acts that may be
prosecutable under Sedition law vary from one legal code to another. Sedition is the
string up of rebellion against the Government of power. Sedition is encouraging one
fellow citizen to rebel against their state. Sedition is an offence which is against the state
as enumerated in the Indian Penal Code. The expression ‘Disaffection’ includes
disloyalty and all feelings of enmity. To constitute an offence of Sedition is incitement to
violence; mere abusive words are not enough and that ‘public disorder or the reasonable
anticipation or likelihood of public disorder is the gist of the offence. In this chapter what
is the origin of this law in other words when it came into existence. Through the
historical background of Sedition law it is explained. What is the status of Sedition in
present and in past before and after independence is also took into consideration.
Meaning of the words which used in the definition of Sedition is also explained like
disaffection, Government established by law, role of intention etc. what amounts to be
considered disaffection in Sedition. Disaffection means a feeling contrary to affection, in
other words dislike or hatred. If a person either 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 the authority if

355
and when occasion should arise and if he does so with the intention of creating such a
disposition in his hearers or readers he will be guilty of the offence of attempting to
excite disaffection within the meaning of this section though no disturbance is brought
about his words or any feelings of disaffection. It is sufficient for the purpose of this
section that the words used are calculated to excite feelings of ill-will against the
Government. Before independence the British Indian administration under changing
political exigencies, sought to repress any hostile criticism of its rule by ever widening
the legal scope of the term ‘Sedition’ and one the other hand the nationalist questioned
the very basis of it. Was it Sedition of the people against the colonial Government
(Rajdroh) or the Government against the Indian people (Deshdroh).

Constitutional validity of section 124-A which is related to sedition, is come into

existence when the constitution of India came into existence. There are two divergent
views in this regard. The protagonist of one view hold that section 124-A of the Indian
penal code is ultra vires of the constitution insofar as it seeks to punish merely bad
feelings against the government. It is unreasonable restriction on freedom of speech and
expression guaranteed under article 19(1) (a) and is not saved under article 19(2) of the
constitution by the expression ‘in the interest of public order’. The contradiction which
rose upon before the framer of the constitution was that whether the word sedition is too
used in article 19(2) and if it was to be used in what sense it was to be used. One hand
they must have before their mind the very widely accepted view supported by numerous
authorities that sedition was an offence against the public tranquillity and was connected
in some way or other with public disorder and on the other hand there was the
pronouncement of the judicial committee that ‘sedition as defined in the Indian penal
code did not necessarily imply any intention or tendency to incite disorder. In these
circumstances it is not surprising that they decide not to use the word ‘sedition’ in clause
(2) but used the more general words which cover sedition and everything else which
make sedition such as serious offence. That sedition does undermine the security of the
state usually through the medium of public disorder is also a matter which undermines
the security of the state.

356
 When the constitution came into existence in 26 January 1950. In it there is an
article which is related to freedom of speech and expression came under article 19(1) (a)
of the constitution. According to which sub section (2) enacts, nothing in sub clause (a)
of the clause (1) shall affect the operation of any existing law in so far as it relates to, or
prevent the state from making any law relating to libel, slander, defamation, contempt of
court or any matter which offends against decency or morality or which undermines the
security of, or tends to overthrow the state. The quarry which is related to section 124-A
of the Indian penal code is that how far section 124-A is affected by article 19(1) (a) of
the constitution by which every citizen of India has been given the right of freedom of
speech and expression. But this right is qualified by article 19(2) of the constitution. If
anybody speaks against the sovereignty of India, such exercise comes under penal law
offences against state. The right to free speech enshrined in the constitution cannot be
used against the country. Freedom of speech and expression is the basic right forms the
bedrock of any state that claims to be democratic. A person has a right to say or write
anything critical about the government, or its measures as long it does not incite violence
or intended to disturb public peace and create disorder. In other words citizens have the
right to criticize the government and that such criticism does not amount to sedition as
long as there is no call to violence.

The law of sedition as contained in section 124-A of the Indian penal code was
also embodied in some other statutes. However the general statement of law was similar
in all the provisions and could be gathered from section 124-A of the Indian penal code.
The legislative history of this section of the Indian penal code dealing with sedition is of
interest. The very sedition act 124-A of the Indian penal code which used by the British
in India, and imposed on every Indian given the wider scope of the section on sedition
such as that “whoever , by words either spoken or written, or by sign, or by visible
representation or otherwise, brings or attempts to bring into hatred or contempt, or excite
or attempt to excite disaffection towards the government established by law in India by
spoken or written words, or by signs or by visible representation, or otherwise, shall be
punished with imprisonment extending up to three years which fine may be added or with
fine. There are three explanation attached to this section. The first gives an inclusive
definition of the expression ‘disaffection’ states that this word includes disloyalty and all

357
feeling of enmity. The second explanation excludes something from the purview of this
section. It says that comments expressing disapprobation of the measure of the
government with a view to obtain their alteration by lawful means, without exciting or
attempting to excite hatred, contempt or disaffection, do not constitute an offence.
According to the third explanation which also takes away a few things from the body of
this section, comments expressing disapprobation of the administrative or other action of
the government , which do not excite or attempt to excite hatred, contempt or disaffection
are not considered punishable under this section as offence.

(1) Explanation: The expression ‘disaffection’ includes disloyalty and all feelings of
enmity.

(2) Explanation : Comments expressing disapprobation of the measure of the

government with a view to obtain their alteration by lawful means, without
exciting or attempting to excite hatred, contempt or disaffection, do not constitute
an offence under this section.

(3) Comments expressing disapprobation of the administrative or other action of the

government without exciting or attempting to excite hatred, contempt or
disaffection, do not constitute an offence under this section.

The word “sedition” does not occur in section 124-A of the Indian penal code or in the
Defence of India Rule. It is found as a marginal note to section 124-A and is not an
operative part of the section 124-A, and is not an operative part of the section but merely
provides the names by which the crime defined in the section will be known. According
to Indian penal code sedition requires two essentials things.

(1) Bringing or attempting to bring into hatred or contempt or exciting or attempting

to exciting disaffection towards, the government of India.

(2) Such act or attempt may be done (i) by words, either spoken or written, or (ii) by
signs, (iii) by visible representation.

358
People of union civil liberties, The Indian penal code amendment bill 2012, The
amendment bill 2011, The National Security Act, 1980, are some act which laid down
some rule regulation regarding to the sedition.

The recent spate in instances of invoking sedition laws against human rights
activists, journalists and public intellectuals in the country have raised important
questions on the undemocratic nature of these laws, which were introduced by the British
colonial government. While sedition laws are part of a larger framework of colonial laws
that are now used liberally by both the central and state government to curb free speech,
the specificity of these laws lie in the language of ‘disaffection’ and severity of the
punishment associated with them. Sedition laws were used to curb dissent voice of
citizen. Target of these laws included renowned nationalists like Mahatma Gandhi, Bal
Ganga Dhar Tilak and Annie Besant. It is ironic that these laws have survived the demise
of colonial rule and continue to haunt media personnel, human rights activists, political
dissenters and public intellectuals across the country. In present scenario the law of
sedition is misused by the central as well as by state government authority in the name of
National security of National integrity. There is much such type of laws made by the
legislation on behalf of sedition. The main objects behind these laws were to protect the
National Security and its integrity. Prevention of National Honour Act 1971 one of them
according to which every person who is a citizen of India should pay respect to National
Honour like flag, National Anthem, and slogan and sign which is related to nation. If a
person disrespect the Nation than he is penalized according to this act. Another law
which is related to sedition is prevention of seditious meetings act 1911. According to
which the act empowers state government to notify an area shall be declared either in
whole or in part. Notification once issued shall be valid for six months however the time
may be extended in case the government deems fit. According to this act it is compulsory
that no seditious public meeting shall be held in proclaimed areas without giving a prior
notice under section 4 of this act. The act shall not apply in cases where the meeting who
shall give report of proceedings.

Another law is article 19(1) (a) of the constitution of India according to which a
person is restrict by dong such act which is against the integrity and sovereignty of the

359
India. This ground was also added subsequently by the constitution 16th amendment act
1963. The main object behind this is to prohibit anyone from making the statements that
challenge the integrity and sovereignty of India. Reasonable restriction can be imposed
on the freedom of speech and expression in the interest of the security of the state.
Another law is named Public Union Civil Liberties Act which is a Human Right
Organization. The main objective behind the organization is to collect information on
violation of Human Right and to provide legal aid to nationalist who were accused of
sedition against the colonial authorities.

Judicial pronouncement is subdivided in two parts. One is related to decide cases in pre
independence in India related to sedition. Another is related to decide cases after
independence in India related to sedition. In law of sedition we have been examining
freedom of speech and various legal restrictions upon this fundamental right. Sedition is
one of such restriction. The rationale for sedition is based on the principle that
dissemination of seditious material undermines the loyalty of citizens that disloyal citizen
jeopardize the government at law, and that a weakened government at law threatens the
very fabric of the state as well as public order and safety. Thus the various judicial
justification for the law of sedition conglomerate around invocations of the necessarily
for preserving the government, without questioning whether the government in fact is
something worth protecting. Certainly many believed that in the context of British India it
was not. According to Gandhi, “I hold it as a virtue to be disaffected towards a
government which in its totality has done harm to India than any previous system.

The import of the present law of sedition cannot be abstracted from its historical
context in colonial rule. The rule of sedition is the unfortunate legacy of the British
government in India, pre independence it was a mechanism employed by the courts to
quash anti- governmental sentiment, by stemming the propagation of ideas that might
cause the listeners to feel “disaffection” for the government of British India. It is for this
reason that Mohandas Gandhi called 124-A the prince amongst mechanism used to
silence political opposition.

The last chapter is related to comparative study of the law of sedition in other
countries. Comparative study of the law is subdivided into three parts one is related to

360
comparative study of freedom and speech and expression and discretion in other
countries. Second is related to comparative study of flag discretion in other countries.
The last is related to comparative study of insult law in other countries. The evolution of
the law of sedition in India and the conflicting opinions surrounding it has been
examined. However it cannot be assumed that section 124-A of the Indian penal code
embodies the common law as it stands in other countries or even elsewhere. What
constitute sedition differs not only in time but also in terms of place in each case
depending on particular circumstances that influence their development. In comparative
study of freedom and expression it is mentioned that free expression is an essential part
of the democracy. In it freedom of social and economic also included. Media plays a vital
role in freedom of expression. It is the mirror image or parameter of various free
information or views. The critical role endows the media a hidden power or media is
called as fourth pillar of democracy. In all democratic countries freedom of press is
honoured and they get some special powers to express people’s view or to criticizing the
wrong doing, bureaucracy or government in power or in society. This line between right
and wrong is so thin that it becomes difficult to judge suppressing this freedom of press
also can harm democracy or society. Freedom of expression is a basic right recognized in
most legal frameworks, whether domestic, regional or international.

(7.2) SUGGESTIONS:

It is the fundamental right of every citizen to have his own political theories and
ideas and to propagate them and work for their establishment so long as he does not seek
to do so by force and violence or contravene and provision of law. Thus, when a pledge
of a Society and the establishment of the socialist State for which others are already
working under the lead of the working classes, it was held that it was open to the
members of the Society to achieve these objectives by all peaceful means, ceaselessly
fighting public opinion that might be against them and opposing those desired the
continuance of the existing order of society and the present Government; that it would
also be legitimate to presume that they desire desired a change in the existing
Government so that they could carry out their Program and policy; that the mere use of
words ‘fights’ and ‘war’ in their pledge did not necessarily mean that the Society planned

361
to achieve its objective by force and violence. The provisions of section 124A are very
wide and strictly speaking they would cover everything amounting to defamation of the
Government if one excludes from the meaning of that term and criticism in good faith of
any particular measures or acts of administration. The language of 124A, if read literally,
even with the explanations attached to it, would suffice to make a surprising number of
persons in the country guilty of sedition. Meetings and processions are now held lawful,
through 150 years back they would have been held to be seditious, and this is not because
the law is weaker now or has changed, but because, the times have changed, society is
stronger than before. Since the decision of their Lordships of Privy Council in Emperor
v. Sadashiv Narayan Bhalerao, India has attained Independence, and article 19(1)(a) of
the Constitution of India guarantees to all citizens the right to freedom of speech and
expression, subject only to reasonable restrictions as laid down in clause (2) of that
article. It is well settled that in interpreting an enactment, the court should have regard
not merely to the literal meaning of the words used, but also take into consideration the
antecedent history of the legislation, its purpose and the mischief it seeks to suppress. It
is also well settled that if a provision of law comes within the constitutional powers of the
legislature by adopting one view of the matter and limit its application accordingly, in
preference to the view, would make it unconstitutional.

The truth of otherwise of the aspersions cast upon the Government is immaterial
and it has no jurisdiction for seditious utterance. If certain alleged facts are used is a peg
on which to hang seditious comments, the truth of the facts does not excuse the seditious
commentary. On the other hand, fair criticism of the Government is no offence, and it is
quite possible to express dissatisfaction without exciting disaffection. It has been said
that in the present day an attempt to remove from power the ministers on office or any
agitation for the repeal of an Act of Parliament cannot be seditious if no unlawful means
are employed. It was laid down in R. v. Sullivan that a journalist may canvass and
censure the acts of the Government and their policy and indeed it is his duty.

The irony of the law is in the very fact that it allows for criticism of the
Government but doesn’t allow truth as its defence. When it is the duty of the people to
comment fairly upon the Government, how truth could be neglected as a defence of the

362
crime. The nature of this crime is vested in the concept of sovereignty and the authority
of it. It is not the Government which is sovereign, it is the country which is sovereign,
and it is the people which are sovereign. Now when the Government is no more the
sovereign, they don’t have the right to possess the protection against sedition.

Another important aspect of the crime was pointed out by Allahabad High Court
in Ram Nandan v. State that we can’t make presumption that public order will get
disturbed due the speech. The court very categorically pointed out the fact that the
response of the people towards the words can’t be ascertain. Hence, by the time, public
order is not disturbed, we can’t hold someone libel for sedition in presumption of
disturbance of public order. Cases of Dr Binayak Sen and Aseem Trivedi are perfect
examples of the abuse of the interpretation of the law. In both the cases, no public
disorder took place, but only on the grounds of presumption of disturbance of public
order and on the argument of pre-emptive measure.

The changes in circumstances now want change in law. The reason for which this
law was made is no more in existence, and hence this law shall go. Other countries have
started repealing this law. Astonishingly, the defects of the law were found at an early
stage only. Law Commission of India, in its 42nd Report had mentioned about the defects
of sec. 124A. Very categorically they pointed out that the exclusion of Mens Rea is
making the provision unsound in front of article 19(2) of the Constitution. The section
has been found to be defective because "the pernicious tendency or intention" underlying
the seditious utterance has not been expressly related to the interests of integrity or
security of India or of Public Order. If, the recommendations of the Law Commission of
India would have been accepted and if the interpretation of the judiciary would have been
more practical in this regard, then this chaos would not have taken place.

In the modern era of freedom of speech, when even international forums are also
advocating for freedom of speech, such laws have no place. We need to think over the
very existence and need of the law. If countries like England can scrap the law, where the
law was in effect from past 400 years, and where the parliament is treated as sovereign,
then why can’t we do the same? The need of the hour is to rule out such draconian laws,
and to give freedom to the people, so that democracy could survive.

363
First says that Freedom of speech and expression means the right to express one’s own
convictions and opinions freely by words of mouth, Writing, Printing, Pictures or any
other mode. It thus includes the expression of one’s ideas through any communicable
medium or visible representation, such as gesture, signs and the like. The value of any
freedom is determined by the extent to which the citizens are able to enjoy such freedom.
Ours is a constitutional democracy and it is axiomatic that citizens have the right to know
about the affairs of the government which having been elected by them, seeks to
formulate same policies of governance aimed at their welfare. However like any other
freedom this freedom also has limitations. It is settled proposition that the right to
freedom of speech and expression enshrined under Article 19(1) (a) of the constitution of
India (for short the constitution) encompasses the right to impart and receive information.
The right to information has stated to be one of the important facets of proper
governance. With the passage of time, this concept has not only developed in the field of
law, but also has attained new dimensions in its application. This court while highlighting
the need for the society and its entitlement to know has observed that public interest is
better served by effective application of the right to information. This freedom has
accepted in one form or the other in various parts of the world.

Yes the laws available are sufficient to satisfy the freedom of speech and
expression on context to right to life and personal liberty. But it was argued that the
Article 19(1) and Article 21 of the Indian constitution should be read together because
Article 19(1) dealt with substantive rights and Article 21 dealt with procedural rights. It
was also said that reference in Article 21 to ‘Procedure established by law’ meant ‘due
process of law’. The majority took the view that Article 19 and 21 deal with difference
aspects of liberty. Article 21 is guaranteed against deprivation (total loss) of personal
liberty while Article 19 affords protection against unreasonable restriction (which is only
partial control) on the right of movement. Freedom guaranteed by Article 19 can be
enjoyed by a citizen only when he is a freeman and not if his personal liberty is deprived
under a valid law. The Supreme Court interpreted the law as state made law and rejected
the plea that by the term law in Article 21 meant not the state law but the Principle of

364
natural justice.406However the judgement held that the Act was liable to be challenged as
violating the provisions of Article 19. He gave a wide comprehensive meaning to the
words ‘Personal liberty’ as consisting of freedom of movement and locomotion.
Therefore any law which deprive a person of his personal liberty must satisfy the
requirement of Article 19 and 21 both. But this restrictive interpretation of the expression
‘Personal liberty’ in Gopalan’s case has not been followed by the Supreme Court in its
later decisions. In Kharak Singh case, 407 it was held that ‘Personal liberty’ was not only
limited to bodily restraint or confinement to prison only, but was used as a compendious
term including within itself all the varieties of rights which go to make up the Personal
liberty of a man other than those dealt within Article 19(1). In other words while Article
19(1) deals with particular species or attributes of that freedom, ‘Personal liberty’ in
Article 21 takes in and comprises the residue. After this In Maneka Gandhi v. Union of
India408 the Supreme Court has widened the scope of the words ‘Personal liberty’
considerably. According justice Bhagwati “ The expression ‘personal liberty’ in Article
21 is of widest amplitude and it covers a variety of rights which go to constitute the
personal liberty of man and some of them raised to the status of distinct fundamental
rights and given additional protection under Article 19 of the constitution of India.

Second says that Freedom is something very dicey for on the one hand it is
liberating force for individuals and something that is of cardinal value but on the other
hand it is rationalizing force to censure the freedom and allow for manipulation by the
agents of government into supporting the violation of freedom for the sake of freedom of
others. There are various laws which are exploited to stifle the freedom of speech and
expression for the vested interest of some certain section of the society.

Religion has always evoked some form of tension and will continue to do so in
the future as well. There are many sake holders when it comes to religion. So, on the
other hand there are sentiments of people belonging to a Particular religion which is
ready to be hurt at any time. One can understand the anxiety of the Indian Government to

406
A.K Gopalan v. Union of India. A.I.R 1978 SC 597.
407
Kharak singh v. State of U.P A.I.R 1963 SC 1295.
408
A.I.R 1978 SC 597.

365
Maintain Peace and Harmony in a Multi-Religious, Multi-Cultural and Multi-Lingual
Nation. Still it is beyond an iota of doubt that government over reacted to such concerns
by making such draconian laws which at best reflect the lack of imagination of the law
makers and at worse the repressive Nature of the Government to control its citizens. It
can be easily Pertaining to religion. Section 153 was amended in 1972 and was replaced
with section 153A and section 153B. It is so extensive that today as the increasing court
cases establish,” the right to freedom of speech and expression” has almost been
nullified. Section 153A and section 153B Penalise” any acts promoting enmity between
different groups on ground of religion, race, place of birth, residence, language, etc”. And
committing acts “Prejudicial to Maintenance of Harmony”409 Section 295, 295A and 298
which exclusively deals with “Communal Harmony”. The Main Problems with these
sections are that in order to be accused intention and result of the respective act is
Necessary. It is virtually impossible to concretely identify the intention or “Morality” and
“Public order”. It is impossible to identify something that is so subjective in Nature it
could at best be speculate.

“Affection cannot be manufactured by law” if one has no affection for a person

one should be free to give the fullest expression to his disaffection, so long as he does not
contemplate, promote or incite to violence. However in order to prevent the fissiparous
forces from disintegrating the nation it was thought necessary to make sedition laws.

Now the sedition laws boils down to the simple statement that spreading sedition
and disaffection is crime which is very simplistic in nature in order to deal with so grave
and serious issue as sedition. The scope of the law is so wide that it is a often exploited
by the government agency to curb such activities which are critical of the present
government policies and ideologies. Again even in this case terms like insult, offence and
hate are used which are deeply subjective issues. These terms give government a handle
to curb freedom of speech and expression. In fact Jawaharlal Nehru once said about this
law “Now as far as I am concerned that particular section is highly objectionable and

409
Section 153A of the Indian penal code

366
obnoxious and it should have no place in any body of laws that we might pass. The
sooner we get rid of it the better”.

Third says that while fundamental their right to freedom of expression is not
absolute under international Law. The issue then is how and under what circumstances,
freedom of expression can be restricted in accordance with international law. As
specified by the UN Human right council, the following types of expression should never
be subject to restrictions: discussion of government policies and political debate;
reporting on human rights, government activities and corruption; engaging in election
campaigns, peaceful demonstrations or political activities, including for peace or
democracy; and expression of opinion and dissent, religion or belief, including by person
belonging to minorities or vulnerable groups,410

As per Article 19(3) of the ICCPR restriction on freedom of expression are

permissible if they are provided by law and necessary: to protect the respect of the rights
or reputations of others; or for protection of national security, public order, public health,
or morals.411 Under Article 20 the ICCPR requires states parties to prohibit hate speech
that constitute an incitement to discrimination, hostility, or violence. The Indian
constitution however delineates other groups for curtailing freedom of expression beyond
that which is provided in the ICCPR and it is arguable that these additional under
international law.412 Article 19(3) outlines a cumulative three part test that must be met
before free expression can be legitimately restricted. Restriction must (a) be provided by
law; (b) pursue a legitimate aim; and (c) conform to the strict test of necessarily and
proportionally. According to the HRC a restriction that is provided by law must be clear
and accessible to everyone.413 Restrictions must also be the least intrusive measures
available and must not be overbroad. General comment 34 further elaborates that the
principle of proportionality has to be respected not only in the law that frames the

410
UN Human Rights Council, Freedom of Opinion and Expression resolution (12 October 2009)
411
ICCPR Supra note 469, Article 19(3).
412
Grounds such as “in the interest of the sovereignty and integrity of India”. “Friendly relations with
foreign states”. “Contempt of court”, “defamation” and “incitement to an office.”
413
UN Special Rapporteur on the promotion and protection of the right to freedom of opinion and
expression, report of the special Rapporteur on the protection of the right to freedom of opinion and
expression, Frank La Rue (May 16, 2011).

367
restriction but also by the administrative and judicial authorities in applying the law.” The
test set out in Article 19(3) id discusses in general comment 34. Article 19(3) “may never
be invoked as a justification for the muzzling of any advocacy of multiparty democracy,
democratic tenets and Human Rights. Any attack on a person, including arbitrary arrest,
torture threats to life and killings, because of the exercise of the person’s freedom of
opinion and expression, can never be compatible with Article 19.” The HRC makes clear
that restriction on free expression must be legitimate in the particular circumstances in
which they apply.

Fourth says that America is leader country as far as protection of freedom of speech and
expression is concerned. It provides very wide interpretation of freedom of speech to its
citizens. Freedom of speech of the press, of association, of assembly and petition, this set
of guarantees, protected by the first amendment, comprises what we refer to as freedom
of expression. However initially there was no provision for protecting freedom of speech
in American constitution, but very soon realizing the importance of freedom of speech it
amended its constitution and pave way for protection of speech it amended its
constitution and pave way for protection of speech and expression. The first amendment
of the American constitution specially provides that-

“Congress shall make no law respecting an establishment of religion, or

prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press;
or the right of the people peaceably to assemble, and to petition the government for a
redress of grievances”.

The above amendment to the American constitution is the part of the United States bill of
rights. As per the bill of rights United states congress has been prohibited from United
States congress has been prohibited from making laws, infringe the freedom of speech,
infringe the freedom of the press, limit the right to peaceably assemble, etc. The sum total
of the components of the law of the first Amendment provides a great deal of protection
to freedom of speech and expression. Although as per the provision the first Amendment
only explicitly applies to the congress, the supreme court of America has interpreted the
first Amendment guarantee of freedom of speech very expansively, and the constitutional

368
protection afforded to freedom of speech is perhaps the strongest protection afforded to
any individual right under the constitution.

United States freedom of speech receives a very high degree of constitutional

protection. It is not untrue to say that the constitutional protection afforded to freedom of
speech is perhaps the strongest protection afforded to any individual right under the
American constitution and the value of freedom of speech generally prevails over other
democratic values such as equality, human dignity and privacy. American judiciary too
has played very important role in broadening the scope of freedom of speech.

Schenck v. United States was the one of the first important case where Supreme
Court was first requested to strike down a law violating the free speech clause. It was a
case related to sedition act 1918 which criminalized “disloyal”, “scurrilous” or “abusive”
language against the government supreme court held that in this case “the question in
every case is whether the words used are used in such circumstances and are of such a
nature as to create a clear and present danger that they will bring about the substantive
evils that congress has a right to prevent”. Thus in this case court evolved a new doctrine
of “clear and present danger”. The clear and present danger test of Schenck case was
extended in Debs v. United States again by Justice Oliver Wendell Holmes. The case
involved a speech made by Eugene v. Debs, a political activist, Debs had not spoken any
words that posed a “clear and present danger” to the conscription system, but a speech in
which he denounced militarism was nonetheless found to be sufficient grounds for his
conviction. Justice Holmes suggested that the speech had a “natural tendency” to occlude
the draft. The test of clear and present danger” test did not require the government to
“wait until the putsch is about to be executed the plans have been laid and the signal is
awaited”. Thereby broadly defining the words “clear and present danger”.

Thus the Supreme Court effectively shaped the First Amendment in such a
manner as to permit a multitude of restriction on speech. Example such restriction is
providing authority to state to punish words that “by their nature, involve danger to the
public peace and to the security of the state.” Moreover lawmakers were given the
freedom to decide which speech would constitute a danger.

369
Finally, it would be interesting to see what the Law Commission has had to say about S.
124A and the offence of Sedition. The 41stLaw Commission Report made the following
as to the possible changes that could be brought about in the Law of Sedition in India:

(1) In view of the controversy that has surrounded the role of intention in S.124A an
amendment should be made that makes the casual link between the words and the
Security and safety of the State. The Mens Rea should be expressed as "intending
or knowing it (the words or representatives in question) to endanger the integrity
or Security of India or of any State or to cause public disorder".

(2) The Law Commission was also in favour of the English rule where a verbal attack
on the Constitution, Legislature and the administration of justice as brought under
the purview of this Section. A new Section was also proposed to make desecration
of the National Flag and anthem and the Constitution an offence.

(3) The punishment Section that provides for either imprisonment for life or for
imprisonment up to 3 years and nothing in between was thought to be odd by the
Law Commission. It recommended a maximum punishment of up to 7 years with
the option of imposing a fine.

Now on the basis of the present study followings may be submitting as suggestions on
topic;

(1) When a sedition case to filed “The words, signs or representations must bring the
Government (central or state) into hatred or contempt, must cause or attempt to
cause or attempt to cause disaffection, enmity or disloyalty to the Government
and the words/signs/representations must also be an incitement to violence or
must be intended to tend to create public disorder or a reasonable apprehension of
public.”

(2) Entrusting a senior –ranking officer of at least ACP level and not a station officer
with such cases would be an additional safeguard to misuse of law of sedition.

370
(3) There should be a “district law officer and later a public prosecutor” to give their
written opinion before a case is registered related to sedition against a person. A
district law officer may also be equipped to give opinion on this matter.

(4) Words, signs or representations against politicians or public servants by

themselves do not fall in this category of sedition unless the words/signs/
representations show them as representative of the Government.

(5) Comments expressing disapproval or criticism of the Government with a view to

obtaining a change of Government by “Lawful means” are not Seditious under
section 124-A of the Indian penal code.

(6) Obscenity or vulgarity by itself should not be taken into account as a factor or
consideration for deciding whether a case falls within the purview of section 124-
A of the Indian Penal Code.

**********

371