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1) Whether it is appropriate to repeal the S.124-A of the Indian Penal Code.

It is submitted that the ideal democratic system has one top notch goal of
abiding its constitution and achieving the objectives of the framers of the
constitution. The framers of the constitution has attempted to remark the
abolition of the provision for the offence of sedition.

At the time of the Indian movement for independence from British rule, the law of sedition was applied against
great nationalists, such as Annie Besant, Bal Gangadhar Tilak and Mahatma Gandhi, as a tool to curb dissent.
Keeping such excesses in mind, the Freedom of Speech and Expression was originally encompassed in Article 13 of
the Draft Constitution. In its original form, this provision guaranteed this right subject to restrictions imposed by
Federal Law to protect aboriginal tribes and backward classes and to preserve public safety and peace. 57

A proposal for an amendment to this provision was moved in the Constituent


Assembly to permit the imposition of limitations on this right on the grounds
of libel, slander, defamation, offences against decency or morality or
sedition or other matters which undermine the security of the State.58
However, in light of the biased nature of judicial pronouncements pertaining
to cases of sedition in India, along with a precipitous rise in the abuse of
sedition law to incarcerate nationalists, the final drafters of the Constitution
felt the need to exclude sedition from the exceptions to the right to freedom
of speech and expression.59
A prominent objection to the inclusion of sedition as an exception to the
freedom of speech and expression was raised by Sardar Hukum Singh, who
noted that in the United States of America, any law that limited a
fundamental right is mandatorily subjected to judicial scrutiny and must be
deemed constitutional. However, by granting a blanket protection to any
sedition law that the Parliament may legislate upon, the courts in India would
be incapacitated from striking down an errant law for violating the right to
the freedom of speech and expression.60
He also criticised the validation of laws on the ground that they were in the
interest of public order or undermined the authority or foundation of the
state as classifications that were too vague.61
There was a clear consensus among the members of the Constituent
Assembly on the oppressive nature of sedition laws. They expressed their
reluctance to include it as a ground for the restriction of the freedom of
speech and expression. The term sedition was thus dropped from the
suggested amendment to Article 13 of the Draft Constitution..

57 Constitutional Assembl y Debates, December 7, 1948, speech by Damodar Swarup Seth 17


available at http://164.100.47.132/LssNew/constituent/vol7p21.pdf (Last visited on June 10,2016)
58 Id.
59 Soli J. Sorabjee, Confusion about Sedition, August 12, 2012, available at
http://www.indianexpress. com/news/confusion-about-sedition/987140 (Last visited on March 10,
2014); See also Soli J Sorabjee, Aseem Trivedis cartoons dont constitute sedition, September

15, 2012, available at http://newindianexpress.com/opinion/article607411.ece (Last visited on


March 10, 2014) (The most vocal opposition to such an inclusion came from the renowned
activist and lawyer Dr. K.M. Munshi. To support his position, Dr. Munshi cited the wide
divergence in the judicial interpretation of the term sedition. Further, he believed that public
opinion with respect to sedition had evolved over the years, and taking cognizance of the
changing nature of public opinion, a line needed to be drawn between constructive criticism of
the Government which was crucial to address the grievances of the people, and an incitement to
violence which would undermine security and disrupt public law and order).
60 Constitutional Assembl y Debates, December 7, 1948, speech by S.H. Singh 16 available at
http://164.100.47.132/LssNew/constituent/vol7p21.pdf (Last visited on March 10, 2014).
61 Id.
Historical or genesis:
The law relating to the offence of sedition was first introduced in colonial
India through Clause 113 of the Draft Indian Penal Code (Draft Penal Code),
proposed by Thomas Babington Macaulay in 18371. The offence of sedition
was incorporated under 124A of the IPC on November 25, 1870, and
continued without modification till February 18, 1898 2. After the initiation of
the law of sedition in 1870, it was allowed to remain in force, unaltered, for a
period of 27 years. Throughout this period, one of the primary objectives of
the British Government was to strengthen this law. By the 18th century, the
crime of seditious libel was viewed as a harsh and unjust law that was used
by the ruling classes to trample any criticism of the Crown. 3 However, given
its utility; it was seen as a convenient tool in the hands of the rulers. Thus,
when a penal code was being drafted for colonial India, where the rulers had
the task of suppressing opposition, it was only obvious that seditious libel
would be imported into the territory of India. Therefore, it ultimately approved
the enactment of two cognate laws: the Dramatic Performances Act XIX of
1876 (DPA) and the Vernacular Press Act (IX) of 1878. These Acts came to be
popularly referred to as preventive measures 4. While the former law was
1 Arvind Ganachari, Evolution of the Law of Sedition in the Context of the Indian Freedom Struggle in
Nationalism And Social Reform In A Colonial Situation 54 (2005).
2 The Indian Penal Code, 1898, 124-A (read as follows:Whosoever, by words, either spoken
or intended to be read or by signs or by visible representations or otherwise excite or
attempts to excite feelings of disaffection to the Government established by Law in British
India, shall be
punishable with transportation of life to three years to which fine may be added.).

3 Roger B. Manning, The Origins of the Doctrine of Sedition, 12(2) Alb ion 99
(Summer 1980).
4 Arvind Ganachari, Evolution of the Law of Sedition in the Context of the Indian
Freedom Struggle in Nationalism And Social Reform In A Colonial Situation 54
(2005).

primarily introduced to keep a check on seditious activities in plays, 5 the


latter was formulated to actively suppress criticism against British policies
and decisions in the wake of the Deccan Agricultural riots of 1875-76.10
Since it came into operation in 1870, the law of sedition has continued to be
used to stifle voices of protest, dissent or criticism of the government.
While the indeterminate invoking of the provision has put it in the media
spotlight, there has been very little academic discussion with respect to the
nature of the law and its possible repeal.
The punishment for seditious offences is known to be especially harsh
compared to other offences in the IPC. It is a cognisable, non-bailable and
non-compoundable offence that can be tried by a court of sessions. 6
However, its application is limited to the extent that the information had to
necessarily be a representation of facts as the truth. 7 Thus, truth was a valid
defence to the act.8
It may attract a prison term of up to seven years if one is found guilty of
committing seditious acts.9 It is very difficult for a person accused of sedition
to get bail.10 The highly subjective nature of the offence makes it necessary
that courts determine on a case-to-case basis if any threat is caused to the
stability of the State or its democratic order. Leaving such a determination to
legislative or executive feat only enables a repressive government to
undermine the free speech guarantee.11
5 Constitutional Assembl y Debates, December 7, 1948, speech by Damodar Swarup Seth
17 available at http://164.100.47.132/LssNew/constituent/vol7p21.pdf (Last visited on June
15, 2016).(The institution of the Dramatic Performances Act of 1876 was prompted by the
allegedly seditious nature of the two plays Cha Ka Darpan in Marathi and Malharraoche
Natak in Bengali. It was in acknowledgement of the provocative nature of these plays that
Mr Hobhouse, while introducing the Act, observed that drama has been found to be one of
the strongest stimulants that can be applied to the passions of men. And in times of
excitement no surer mode has been found of directing public feeling against an individual, a
class or a government than to bring them on stage in an odious light).

6 The Code of Criminal Procedure, 1973, Schedule I.


7 Philip Hamburger, The Development of the Law of Seditious Libel and the Control
of the Press, 37 Stan. L. Rev. 669 (1985).
8 Id.
9 The Indian Penal Code, 1898, 124-A.
10 See PSA Pillai, Criminal Law 1131 (K.I. Vibhute eds., 2009).
11 Eric Barendt, Freedom of Speech 170 (2006).

In this paper, we attempt to make a case for scrapping the provision for
sedition in the IPC and any other laws making seditious acts an offence. In
Part II, we examine the judicial application of the law of sedition in India since
the colonial era to highlight their vagueness and the non-uniform way in
which it has been applied. In Part III, we discuss the findings of the court in
Kedar Nath v. State of Bihar 12 (Kedar Nath), which upheld the constitutional
validity of 124A, and demonstrate that the law has evolved considerably
since then. In Part IV, we analyse two specific aspects of the offence of
sedition: the nature of the government established by law and the effect of
the shift to a democratic form of government post independence. In Part V,
we undertake an analysis of all sedition cases that have come before the high
courts and the Supreme Court of India between 2000 and 2015. We will draw
from the English experience with the crime of sedition, explaining why it
should find no place in a modern democracy. Finally, in Part VI, we provide
some concluding remarks to our discussion.
D. DEVELOPMENTS I N THE L AW POSTINDEPENDENCE
After India attained independence in 1947, the offence of sedition continued
to remain in operation under 124A of the IPC.62 Even though sedition was
expressly excluded by the Constituent Assembly as a ground for the
limitation of the right to freedom of speech and expression, this right was still
being curbed under the guise of this provision of the IPC. On three significant
occasions, the constitutionality of this provision was challenged in the courts.
These cases shaped the subsequent discourse in the law of sedition.
Following the decision in Niharendu Majumdar, 124A was struck down as
unconstitutional in Romesh Thappar v. State of Madras,63 Ram Nandan v.
State,64 and Tara Singh v. State65 (Tara Singh). In Tara Singh, the East
Punjab High Court relied on the principle that a restriction on a fundamental
right shall fail in toto if the language restricting such a right is wide enough to
cover instances falling both within and outside the limits of constitutionally
permissible legislative action affecting such a right.66 During the debates
surrounding the first amendment to the Constitution, the then Prime Minister
Jawaharlal Nehru was subjected to severe criticism by members of the
opposition for the rampant curbs that were being placed on the freedom of
speech and expression under his regime.67 This criticism, accompanied by
the rulings of the courts in the aforementioned judgments holding 124A to
be unconstitutional, compelled Nehru to suggest an amendment to the
Constitution.68 Thus, through the first amendment to the Constitution, the
additional grounds of public order and relations with friendly states were
added to the Article 19(2) list of permissible restrictions on the freedom of
speech and expression guaranteed under Article 19(1)(a).69 Further, the
word reasonable was added before restrictions to limit the possibility of
misuse by the government. 70 In the parliamentary debates, Nehru stated
that the intent behind the amendment was not the validation of laws like
12 Kedar Nath v. State of Bihar, AIR 1962 SC 955.

sedition. He described 124A as objectionable and obnoxious71 and opined


that it did not deserve a place in the
scheme of the IPC.
62 The Indian Penal Code, 1860, 124A. (Sedition. Whoever by words,
either spoken or written, or by signs, or by visible representation, or
otherwise, brings or attempts to bring into hatred or contempt, or excites or
attempts 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. Explanation 1 The
expression disaffection includes disloyalty and all feelings of
enmity. Explanation 2 Comments expressing disapprobation of the
measures 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. Explanation 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).
63 Romesh Thappar v. State of Madras, AIR 1950 SC 124.
64 Ram Nandan v. State, AIR 1959 All 101.
65 Tara Singh v. State, AIR 1951 SC 441.
66 Id.
67 Narrain, supra note 42.
68 Id.
69 Id.
70 Id.
71 Id.

The Court in Kedar Naths case stated that the section related to sedition was
a reasonable restriction both on grounds of public order and security of the
state. Further, the addition of the phrase in the interest of public order in
Article 19(2) through the first constitutional amendment with retrospective
application was seen as an attempt to validate the interpretation given by
Fazl Ali, J. in Brij Bhushan v. State of Delhi83 (Brij Bhushan) whereby public
order was allied to security of thestate.84 Consequently, the amendment
was seen as a validation of the law of sedition. Since then, however, a clear
distinction has been drawn by courts between the terms public order and
security of the state.86 The difference, essentially, is one of degree. While
the terms have not been precisely defined, public order is synonymous with
public safety and tranquillity and has only local significance. Security of the

state, on the other hand, would involve a national upheaval such as


revolution, civil strife or war.87 Thus, an argument that a law justified in the
interest of public order would also consequently be justified in the interests
of the security of the state would not stand. Further, it would also be
difficult to argue that the law could be saved on the grounds of being in the
interests of public order.
For the purpose of above mentioned permissible restriction, the breach of
public peace may be categorised as: offences against law and order, public
order and security of the state. According to the judgment of the Supreme
Court in Ram Manohar v. State of Bihar88 (Ram Manohar Lohia) these may
be viewed as three concentric circles, with law and order forming the
outermost circle, public order the next circle and security of the state the
innermost circle. These form a hierarchy of disturbances of peace, with
security of the state possessing the highest standard of proof. Thus, if a
restriction is to be justified on the grounds of security of the state, it would
have to be subjected to a higher standard than that applied in cases of
public order. As has already been stated, sedition is an offence against the
State and punishes an act intended to subvert the government established
by law. It is difficult to imagine how the mere disturbance of public order
could attract a charge for an offence against the state, given that the term
in the interests of public order is used in an extremely localised context.89
These could include punishing loud and raucous noise caused by noiseamplifying instruments in public places or preventing utterances likely to
cause a riot. It is submitted that the appellants have failed to prove that
under which of the three circle the charged offence of sedition belongs. Thus
it is for the appellant to bring the circle or circles alongwith the such
corresponding standard of proof for the purpose of conviction.

A. MAINTENANCE OF PUBLIC ORDER AS A LIMIT ON FREE SPEECH

81 Narrain, supra note 42.

82 While it was widely accepted by various scholars and authorities that sedition
was essentially an offence against public tranquillity and was represented by any
form of public disorder, the Judicial Committee had stated that the intention or
tendency to incite disorder was not an essential element of the crime of sedition as
defined in the IPC.
83 Brij Bhushan v. State of Delhi, AIR 1950 SC 129 : (1950) 51 Cri LJ 1525.
84 Kedar Nath Singh v. State of Bihar, AIR 1962 SC 955, 29.
85 Id., 33 (The Court cited the decision in Debi Soren v. State, AIR 1954 Pat 254 to
support this
contention).
86 V.N. Shukla, Constitution Of India 135 (M.P. Singh, 2008).
87 Id.
88 Ram Manohar v. State of Bihar, AIR 1966 SC 740 : (1966) 1 SCR 709.
89 Id.
90 Balwant Singh v. State of Punjab, (1995) 3 SCC 214 : AIR 1995 SC 1785.
B. POST-INDEPENDENCE CHANGE IN NATURE OF GOVERNMENT
It must be noted that the Court was still driven by the notion of sedition as a
crime that affected the very basis of the State. It had thus been included
under the section related to Offences against the State in the IPC. 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.96affecting the foundations of the
state. This change in the form of government has made a law of the nature of
sedition obsolete and unnecessary. Lastly, it has also been emphasised that
the courts must take into consideration the growing awareness and maturity
of its citizenry while determining which speech would be sufficient to incite
them to attempt to overthrow the government through the use of
violence.101 Words and acts that would endanger society differ from time to
time depending on how stable that society is. Thus, meetings and
processions that would have been considered seditious 150 years ago would
not qualify as sedition today.102 This is because times have changed and
society is stronger than before.103 This consideration becomes crucial in
determining the threshold of incitement required to justify a restriction on
speech. Thus, the audience must be kept in mind in making such a
determination. In S. Rangarajan v. P. Jagjivan Ram104 (Rangarajan), the
Court held that the effect of the words must be judged from the standards of
reasonable, strong-minded, firm and courageous men, and not those of weak
and vacillating minds, nor of those who scent danger in every hostile point of
view.105 It gives an indication of what sort of acts might be considered
seditious, when it observes that the film in question did not threaten to

overthrow the government by unlawful or unconstitutional means, secession


or attempts to impair the integrity of the country.
97 Cass R. Sunstein, Free Speech Now, U. Chi. L. Rev. 260 (1992).
98 Id.
99 It must be remembered, however, that a call to alter the form of
Government is not punishable
under this section.
100 See Tara Singh Gopi Chand v. State, 1951 Cri LJ 449 (per Eric Weston,
C.J.).
101 Seervai, Constitutional Law of India 718 (2010).
102 Id.
103 Bowman v. Secular Society Ltd, 1917 AC 406 .
104 S. Rangarajan v. P. Jagjivan Ram, (1989) 2 SCC 574.
105 Id., 20.
104 S. Rangarajan v. P. Jagjivan Ram, (1989) 2 SCC 574.
1. Clear Acquittal Cases

In one such case, P.J. Manuel v. State of Kerala,106 the accused affixed posters on a
board at the Kozhikode public library and research centre, exhorting people to
boycott the general election to the Legislative Assembly of the state.107 The poster
proclaimed, No vote for the masters who have become swollen exploiting the
people, irrespective of difference in parties. Consequently, criminal proceedings
were initiated against him under 124A of the IPC for the offence of sedition. The
Kerala High Court observed that it needs to be examined whether the publication or
preaching of protest, or even questioning the foundation or form of government
should be imputed as causing disaffection towards the government in a modern
democracy. The content of the offence of sedition must be determined with
reference to the letter and spirit of the Constitution and not to the standards applied
during colonial rule. In support of its view, it cited authority to demonstrate that
even the shouting of slogans for the establishment of a classless society in line with
the tenets of socialism would not be punishable as sedition.108 Further, it noted
that 196 of the Code of Criminal Procedure, 1973, (CrPC) mandates that the
government must expressly authorise any complaint filed for an offence against the
State (under Part VI of the IPC) before the Court can take cognisance of such an
offence. It thus held that the impugned act did not constitute the act of sedition and
quashed the criminal proceedings against the petitioner. Courts have also
consistently found that criminal conspiracies and acts of terrorism did not constitute
seditious acts. In Mohd. Yaqub v. State of W.B.,117 the accused had admitted to
being a spy for the Pakistani intelligence agency ISI. He would receive instructions
from the agency to carry out antinational activities. He was thus charged for
sedition under 124A of the IPC. Citing the elements of sedition that were laid down
in Kedar Nath, the Calcutta High Court found that the prosecution had failed to
establish that the acts were seditious and that they had the effect of inciting people

to violence. Thus, the accused were found not guilty as the strict evidentiary
requirements were not met.

106 P.J. Manuel v. State of Kerala, ILR (2013) 1 Ker 793.


107 Id.
108 Alavi v. State of Kerala, 1982 KLT 205; Balw ant Singh v. State of Punjab, (1995)
3 SCC 214 : AIR 1995 SC 1785.
117 Mohd. Yaqub v. State of W.B., (2004) 4 CHN 406

A recent Convention organized by Peoples Union of Civil Liberties (PUCL) and participated in
by other Human Rights organizations heard accounts of widespread and systematic misuse of the
sedition law across India. All forms of democratic struggles - from farmers agitations to citizens
protesting against state policies - have been criminalized and prosecuted under sedition laws.
Consequently, thousands of ordinary citizens have not only suffered violation of fundamental
freedoms and liberties but also forced to undergo major personal, emotional and financial
hardships due to imprisonment and in the process of seeking legal remedies. The Convention,
therefore, resolved to launch a nation-wide signature campaign to collect at least a million
signatures to present it to Parliament demanding the immediate repeal of Sedition Law, i.e., Sec.
124 (A) IPC. Colonial era sedition law contained in section 124 A of the Indian Penal Code,
makes creating hatred or contempt for or disaffection towards the government established by
Law in India, an act of sedition punishable with imprisonment for life, whether such disaffection,
hatred or contempt is created by words spoken or written or by signs or visible representation.
This section forms part of chapter VI of the Indian penal Code that deals with offences against
the State, a passage that deals with serious offences including waging war against the State.
Section 124 A was introduced by the British Government in 1870 when the colonial government
felt that such a draconian law was needed to suppress the freedom struggle. Some of the most
famous sedition trails of 19th and early 20th centuries were those of Indian nationalist leaders
including Tilak, Gandhi and Maulana Azad. All the repressive laws used by the British against
the freedom struggle have been retained in Independent India, despite constitutional provisions
mandating scrutiny.Jawaharlal Nehrus views were totally against this provision when he said in
1951, Take again Section 124 (A) of the Indian Penal Code. Now so far as I am concerned that
particular Section is highly objectionable and obnoxious and it should have no place both for
practical and historical reasons, in any body of laws that one might pass. The sooner we get rid
of it the better.In fact, it is the constitutional right of every citizen to expose the misdeeds of the
government he/she disapproves of and create disaffection and disloyalty among the people and
work for throwing it out of power through democratic means of course without resorting to
violence. Hence, the law is incompatible with democracy in which anybody who is dissatisfied
with the government has the right to create disaffection against it and seek its removal at the next
election. In fact, it is the legitimate right of every citizen to expose the misdeeds of the
government it disapproves of, create disaffection and disloyalty among the people and work for
throwing it out of power. Disloyalty to a government is different from disloyalty to the State. Of

late this provision is being used by the State to suppress the peaceful peoples movements and
Human Rights activists. Using sedition law to silence peaceful criticism is the hallmark of an
oppressive government. The Indian parliament should immediately repeal this Colonial Era
Sedition Law.
http://www.pucl.org/Topics/Law/2011/sedition.html, last visited on 16, July 2016.

Autonomy Is As Autonomy Does- Law of Sedition in India, Hetal Chavda, LL.M.


Business laws, Imperial Journal of Interdisciplinary Research (IJIR), Vol-2, Issue-5,
2016, ISSN: 2454-1362
The dictionary meaning of sedition is conduct or speech inciting people to rebel
against the state. Its legal meaning is inciting violence towards insurrection of
established order and lawful authority, including subversion of the Constitution.
Hardik Patel
In 2015 The Gujarat government booked a Patel leader under sedition for sending
messages containing offensive language against the Prime Minister, the State Chief
Minister and Amit Shah, the President of BJP. These cases are indicative of a high
level of intolerance being displayed by governments towards the basic freedom
enjoyed by citizens. Democracy has no meaning without these freedoms and
sedition as interpreted and applied by the police is a negation of it.

Kanhaiya Kumar

In February 2016, JNU, Jawaharlal Nehru university student union president


Kanhaiya Kumar was arrested on charges of sedition under section 124-A of Indian
Penal Code. However this arrest has raised a political turmoil in the country with
academicians and activists marching and protesting against this move by the
government. While those associated with JNU, past and present feel that the
government is stifling and ruthlessly suppressing dissent, there is another part of
the population that believes JNU for long has been supporting antiIndia activities
and the students involved must be punished for this act. Protests by both sides are
continuing. Kanhaiya Kumar is the president of JNUSU. On 2 March 2016 the videos
purporting to show this activity were found to be fake and he was released after
three weeks in jail.
Yet, it is not the first time that the sedition law has been used in independent India.
And it will not be the last time. It is neither rare nor frequent. But it happens often
enough when it serves a political purpose. Governments invoke the law and the
opposition cries foul. The irony of double standards is striking. The same political
parties when in government cite the national interest and when in opposition wax
eloquent about rights or freedom. In the present mess, there are no winners. There

are only losers. The government runs the risk of losing support of young people,
who are an important political constituency, and the wrath of students might spill
over on to the streets. Moreover, it distracts the government from its priority tasks.
That can help in progress of society in India. Past judgments of the honorable courts
have always became the tale between section 124A and article 19(1) where one
deals with freedom of speech and one controls the autonomy words against state is
not a matter of freedom. Anything in against of national interest is subject to
sedition. After all autonomy is as autonomy does.

A case against the sedition law Kaleeswaram Raj http://www.niyamasabha.org/focus/Focus-Mar-2016.pdf


Henry Ward Beecher (1813-87), the American preacher and social reformer, said: It takes a
hundred years to make a law; and then after it has done its work, it takes another hundred years
to get rid of it. The Jawaharlal Nehru University episode evocatively makes out a formidable
case for junking Section 124A (sedition) of the Indian Penal Code (IPC) once and for all. The
textual or literal tone of the provision is per se undemocratic, for it penalizes dissent with an
obfuscating vocabulary. The provision criminalizes words bringing, or attempting to bring,
hatred or contempt or disaffection towards the government. By prescribing a
disproportionate optimum punishment of life imprisonment even for the words spoken, it designs
a nefarious power structure that is inherently illiberal and dangerously oppressive. Section 124A
finds its legal legitimacy in the Constitution Bench decision in Kedar Nath Singh vs State of
Bihar (AIR 1962 SC 955). The judgment, which is apparently ambivalent and intrinsically
wrong, needs to be reviewed by a larger bench insofar as it validates the provision. The
reasoning in the judgment does not stand the test of constitutional experience of the country or
the subsequent developments in the concept of freedom across the world. The binary of
individual liberty and state security is no longer a contested concept, for a synthesis of these
opposing ideas has been vividly demonstrated by many modern democracies. Parliament is
unlikely to repeal the provision, for those in power often have needed it and even benefited from
it. An introspective gesture from the apex court alone seems to be the way ahead for those who
believe in the cause of liberty of thought and imagination. It is high time Section 124A was held
void, for it is legally unnecessary, constitutionally invalid and democratically untenable. There
are at least four prominent reasons for invalidating Section 124A by recalling the ratio in Kedar
Nath, which is an epitome of an obsolete precedent insofar as it retains Section 124A.
KEDAR NATH IS AMBIVALENT
The validation of Section 124A in Kedar Nath is neither categorical nor assertive. In paragraph
25 of the judgment, the court said: .... (I)f it is held .... that the gist of the offence of sedition is
incitement to violence, in other words bringing the law into line with the law of sedition in
England was the intention of the legislators when they introduced Section 124A into the IPC in
1870, ... (then) the law will be within the permissible limits laid down in clause (2) of Article 19
of the Constitution. If on the other hand, we give a literal meaning to the Section ... it will be true
to say that the Section is not only within but also very much beyond the limits laid down in

clause 2 (of Article 19). In paragraph 26, the court has resorted to a dialectical logic and
validated the provisions: It is well settled that if certain provisions of law construed in one way
would make them consistent with the Constitution, and another interpretation would render them
unconstitutional, the court would lien in favour of the former construction. Thus, Kedar Nath
laid down the law: If activities do not create disorder or have the pernicious tendency to create
public disorder, there is no offence. If otherwise, it is a punishable offence. Therefore, according
to Kedar Nath, the provision is reasonable in terms of Article 19(2) of the Constitution. Thus, the
question of constitutionality is decided by the bench in contextual and contingent terms. Even
while accepting the possibility of interpreting the provision as unconstitutional, Kedar Nath has
validated it by construing the law, which is otherwise vague, at least to the extent to which it
needed a construction. This hermeneutical error in Kedar Nath contains inherent dangers. The
penal provisions, unlike the other statutes, are primarily interpreted and invoked by the
executive. As such, there is an enormous element of subjectivity in invoking Section 124A.
Although theoretically, the Kedar Nath judgment advocates an objective test, the question
whether the words spoken by the accused has a tendency to create disorder is again a matter of
subjective decision by the executive, which runs the police-the jury on the street. Kedar Nath
himself was an activist of the Forward Communist Party. The charge against him specifically
refers to his speech. In a folkloric rhetoric, he, inter alia, said: The Forward Communist Party
does not believe in the doctrine of vote itself. The party had always believed in revolution and
does so even at present. We believe in that revolution, which will come and in the flames of
which the capitalists, zamindars and the Congress leaders of India, who have made it their
profession to loot the country, will be reduced to ashes and on their ashes will be established a
government of the poor and the downtrodden people of India. The Kedar Nath judgment also
considered the speeches by a Bolshevik Party leader from Uttar Pradesh and one Ishaq Ilmi, the
chairman of the reception committee of the All India Muslim Convention in Aligarh. Thus,
literally it was the speech that invited sedition charges in many of the appeals considered by the
Supreme Court in Kedar Nath. Having found that mere words, unless accompanied by an
intention to scuttle law and order, cannot lead to sedition, the court should have gone further
into the realm of legal realism. The country had to pay a heavy price in terms of liberty for
retaining Section 124A in the IPC. The inhospitable history of the provision shows that it was
used to stifle democratic dissent. Many journalists, writers and activists have been booked for
dissent. The voices of thousands of Koodankulam anti-nuclear plant activists, who led peaceful
agitations, were muffled with sedition charges. It is time to rethink the unbearable reluctance
in Kedar Nath to do away with the provision. If Section 124A punishes only the pernicious
activities against the state, it is no longer necessary in the IPC. There are other provisions in the
IPC that take care of such offences more effectively. In Kedar Nath, the Supreme Court has not
examined the sufficiency of other provisions even after noting the inherent dangers of the
sedition part. Apart from Section 124A, the court, in Kedar Nath, dealt with Section 505 of the
IPC relating to statements conducing to public mischief. The court, however, did not analyse
the more visible forms of offences to topple the regime. Sections 121, 12lA and 122 deal with the
offence of waging war against Government of India or in any way facilitating such a war.
Going by judicial interpretation, the word war has a wide and varied meaning. Section 121
says that insurrection against the government is punishable with death or life imprisonment.

Section 126 makes depredation on territories of power at peace with the Government of India a
punishable offence. Chapter VII of the IPC, by way of Sections 131 to 140, deals with offences
relating to the Army, the Navy and the Air Force. More importantly, any violence or call for
overturning the law and order situation or to disrupt public tranquility is otherwise punishable
under the provisions of the Code, outside the scope of Section 124A. Thus, the law and order
requirement of Section 124A is met by other parts of the IPC, which is its very basic object. As
such, the retention of Section 124A is rendered unnecessary by the Code itself. Since it is capable
of being put to unconstitutional use (not misuse) as noted by the apex court, its retention defies
constitutional logic and empirical thinking. The lack of a comprehensive analysis of the
provisions in the IPC has rendered the Kedar Nath ratio dangerously incomplete.
FOUNDATION SHATTERED
The foundational reason adopted by the Supreme Court for validating the provision was the
retention of the sedition law in England at that time. The court said: This species of offence
against the state was not an invention of the British government in India but has been known in
England for centuries. Every state, whatever its form of government, has to be armed with the
power to punish those who, by their conduct, jeopardise the safety and stability of the state ...
(Paragraph 15). After extracting the British equivalent of sedition law, the court said that the
law has not changed during the course of the centuries ... . Now that law is changed. It was
abolished in Britain as it was found untenable in the light of the Human Rights Act, 1998. The
emphasis on free speech by the European Convention on Human Rights (ECHR) accelerated the
process of expulsion of sedition laws from many democracies. New Zealand followed suit after
noting that in the United States, Canada and Australia, the law is practically in disuse. Nigeria
also abolished its sedition law. The judgment of the Federal Court of Appeal in Nigeria struck
down the part of Criminal Code of Eastern Nigeria, saying: (T)he law of sedition which has
derogated from the freedom of speech guaranteed under this Constitution is inconsistent with the
1979 Constitution more so when this cannot lead to a public disorder as envisaged under Section
41(a) of the 1979 Constitution ... [State vs Arthur Nwankwo, (1985) 6 NCLR 228]. Therefore,
it is clear that the Kedar Nath ratio, in as much as it justifies itself on the basis of the erstwhile
British legislation, is no longer a good law in the legal or political sense. But since the law has
not been scrapped, the Supreme Court had to exonerate the accused in Bilal Ahmed Kaloo (1997)
7 SCC 431 and Balwant Singh (1995) 3 SCC 214 where the charges were inter alia under
Section 124A. It happened likewise in many unreported cases as well. As explained by Salvador
J. Antonett Stutts, an attorney in Puerto Rico, often obsolete precedents are not revaluated
because of habit, as the habitual adherence to precedent could lead to incorrect results.
The citizens long journey to the Supreme Court to free himself of the charges is a sad
commentary on the Indian sedition law.
TRAPPING THE INNOCENT
Kedar Nath identifies two possible interpretations of Section 124A, thereby indicating that the
provision is vague. Vagueness of a penal statute (as distinct from its potential for misuse) is not
sufficient enough to invalidate the provision. The Supreme Court recently accepted this principle
in Shreya Singhal vs Union of India (2015) [5 SCC 1], while dealing with the validity of Section

66A of the Information Technology Act, which the court struck down. The open-ended and
vague terminology in the penal provisions could be even deceptive, for it might trap the
innocent. As held in United States vs Reese [92 U.S. 214J, the Constitution does not permit a
legislature to set a net large enough to catch all possible offenders and leave it to the court to step
in and say who could rightfully be detained and who should be set at liberty. The court in
Shreya Singhal also refers to Grayned vs Rocliford [408 U.S. 104 (1972)J to say that vague
laws may trap the innocent by not providing fair warning. It noted the warning by Justice
Brandeis that public discussion is a political duty. Vagueness in itself is a ground to
invalidate a statute. However, its linkage with the potential for misuse of the provision is an
added reason to do away with it. The modernity and modernism in Shreya Singhal reflect an
updated constitutionalism. Kedar Nath also needs thorough modernisation surgery, which
precisely means annulling Section 124A.
DEBATES OVERLOOKED
The fundamental error in KedarNath, however, seems to be that it followed the minority view of
Fazal Ali (J) in Brij Bhushan (1950), which attributed a strange reasoning for not incorporating
sedition as an exception to freedom of speech, as part of Article 19(2). Fazal Ali (J) said: The
framers of the Constitution must have therefore found themselves face to face with the dilemma
as to whether the word sedition should be used in Article 19(2) and if it was to be used, in what
sense it was to be used. On the one hand, they must have had before their mind the very widely
accepted view supported by numerous authorities that sedition was essentially an offence against
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.
FazalAli (J) seems to have not correctly appreciated the spirit of the objections raised by K.M.
Munshi, T.T. Krishnamachari and Seth Govind Das in the Constituent Assembly. Sedition was
initially incorporated under Article 13 of the draft Constitution, which is the equivalent of the
present Article 19. Munshi lamented: Our notorious Section 124A of (the) Penal Code was
sometimes construed so widely that I remember in a case a criticism of a District Magistrate was
urged to be covered by Section 124A. But the public opinion has changed considerably since and
now that we have a democratic government (Constituent Assembly Debates, 1948; Book No.2;
Vol. No. VII; page 731; Lok Sabha Secretariat; 6th Reprint, 2014). Krishnamachari felt even the
word sedition needed to be resented. He spoke unflinchingly against the draft Constitution,
which contained the word sedition under Article 13, as an exception to freedom of speech and
expression. He said: Students of constitutional law would recollect that there was a provision in
the American Statute Book towards the end of the 18th century providing for a particular law to
deal with sedition which was intended only for a period of years and became more or less
defunct in 1802 (Ibid, page 773). Fazal Alis apprehension that sedition per se would undermine
the security of the state does not appear to be reasonable when examined in the light of the
opinion expressed in the Constituent Assembly, which were well received and accepted by the
makers of the Constitution. In Kedar Nath, unfortunately, the bench relied on the dissent on the
basis of assumptions and presumptions by Fazal Ali (J) rather than by invoking any interpretative
technique. The reference to the amendment to Clause (2) of Article 19, occurring in paragraph 22

of the judgment, does not erase this basic infirmity. Had there been an assimilation of the spirit
of liberty in the Constituent Assembly debates, the analysis in Kedar Nath might have turned
more organic, vibrant and libertarian, which in turn would have led to a different conclusion
about the validity of the provision. Viewed in this light, after 145 years of its horrendous
existence, Section 124A calls for its own annihilation by the worlds most powerful Supreme
Court.
http://decipherias.com/currentaffairs/sedition-vs-free- speech/;%20last
%20visited%20on%2026%20July,%202016 Tilak & Gandhi
Section 124A was not part of the IPC when it was enacted in 1860. It was introduced
through an amendment in 1870.
The monograph traces the contemporary understanding of the sedition law to the
interpretation placed on it by Justice James Strachey, who was asked by the British
government to preside over the sedition case against Bal Gangadhar Tilak, who was
convicted of sedition in 1897 but released in 1898. Tilaks counsel argued that the
so-called seditious articles written by Tilak were consistent with his loyalty to the
state. Strachey held that the term feelings of disaffection as used in Section 124A
meant hatred, enmity, dislike, hostility, contempt and every form of ill will
to the government. The Judicial Committee of the Privy Council upheld his
interpretation.
In 1898, Section 124A was amended to reflect Stracheys interpretation. The terms
hatred and contempt were included along with disaffection. Disaffection was
also stated to include disloyalty and all feelings of enmity.
Tilak was again tried for sedition in 1908. Despite a spirited defence from
Mohammad Ali Jinnah, his counsel then, the amended Section 124A helped the
British judges to sentence Tilak to six years rigorous imprisonment with
transportation.
Mahatma Gandhi, when he was charged under the Section in 1922, famously told
Judge Strangman, who heard his case: Section 124A under which I am happily
charged is perhaps the prince among the political sections of the IPC designed to
suppress the liberty of the citizen. Affection cannot be manufactured or regulated
by the law.
Constituent Assembly & section 124 A
It is almost an accident that Section 124A survived after Indias Constitution came
into force in 1950. The provision must have died a natural death in view of Article
13 of the Constitution, which states that all laws in force in the territory of India
immediately before the commencement of the Constitution, insofar as they are
inconsistent with the provisions of Part III, dealing with Fundamental Rights, shall, to
the extent of such inconsistency, be void.
Those who defend Section124A today must learn from history. The Draft
Constitution had included sedition as one of the grounds on which the

fundamental right to speech could be restricted. But owing to the efforts of K.M.
Munshi, the word sedition was deleted from the exceptions to the right to freedom
of speech and expression under Article 19(2) when it was finalised.
Bizarre cases imposed in the name of Sedition:
Some of the cases of sedition are bizarre. In 2010, a lecturer, Noor Muhammed
Bhat, in Gandhi Memorial College, Srinagar, was arrested because he added
questions on the unrest in Kashmir Valley in an examination. He was granted
interim bail by the Jammu and Kashmir High Court in 2011.
The Times of Indias resident editor at Ahmedabad, Bharat Desai, faced charges,
along with a senior reporter and a photographer, in 2008 for questioning the
competence of police officers and alleging links between them and the mafia. The
case was dismissed by the court for lack of evidence.
In the case against Sudhir Dhawale, a reputed Dalit social activist and editor of
Vidrohi, published from Gondia, Maharashtra, the police alleged that a State
Committee member of the banned Communist Party of India (Maoist) had stated in
an interrogation that he had given his computer to Dhawale. Dhawale was arrested
in 2011. A sessions court acquitted him in 2014.
NCRB data
The list of cases of misuse of Section 124A given here is not exhaustive. The
National Crime Records Bureau (NCRB) records that in 2014, 176 cases of offences
against the state were reported. Of these, 47 were reported under section 124A IPC.
Conclusion:
The NCRB may well provide data regarding the number of persons convicted and
sentenced for sedition. The number will, no doubt, be minuscule, thus confirming
that the trial and the appellate courts hardly find the evidence convincing enough to
sustain the charges. This proves that Section 124A is often a handy tool in the
hands of the government to inflict procedural punishment against its critics, just in
order to harass, threaten and intimidate.
http://www.uniassignment.com/essay-samples/law/the-pre-text-of-origin-lawconstitutional-administrative-essay.php
bibliograpgy:

Table of Authority
Cases
Bengal Immunity Co. Ltd. v. State of Bihar, A.I.R. 1955 S.C. 661 17

Bennett Coleman v. Union of India, A.I.R. 1973 S.C. 106, 138 3


Bowman v. Secular Society Ltd., [1917] AC 406, 466 16
D.C. Saxena (Dr.) v. Honble The Chief Justice of India, (1996) 5 S.C.C. 216 29 3
Dhirendra Nath Sen v. Emperor, A.I.R. 1938 Cal 721, 723 17
Dr. Ram Manohar Lohia v. Superintendent Central Prison, Fategarh, A.I.R. 1955 All 193 8
Emperor v. Sadashiv Narayan Bhalerao, A.I.R. 1947 P.C. 82 16
Hunt et al. 29 C&P 91 4
In Re Cottingha'n, (1919, Colo.) 182 Pac. 2 10
Joy Chandra Sarkar v. R, 12 Cr.L.J. 348 17
Kedarnath v. State of Bihar, A.I.R. 1962 S.C. 955 4
King Emperor v. Sadashiv, 1947 (74) I.A. 89 4
LIC v. Manubhai D. Shah (Prof.), A.I.R. 1993 S.C. 171 23 3
Namboodiripad E.M. Sankaran v. Ma,biar T. Narayanan, A.I.R. 1970 S.C. 2015 3
Nazir Khan v. State of Delhi, A.I.R. 2003 S.C. 4427 16
Niharendu v. King Emperor, (1954) F.C.R. 38 4
O'Connell et al. v. The Queen, (1844) 11 Cl.&Fin. 155 4
P. Hemalatha v. Government of Andhra Pradesh, A.I.R. 1976 A.P. 375 17
Parmanand v. Emperor, A.I.R. 1941 All 156, 157 16
Queen Emperor v. Bal Gangadhar Tilak, (1897) I.L.R. 22 (Bom.) 112 6
Queen Emperor v. Jogendra Chandra Bose, (1892) I.L.R. (Cal.) 35 6
R. v. Sulliva, (1868) 11 Cox CC 54 17
Ram Bahadur Rai v. State of Bihar, A.I.R. 1975 S.C. 223 3
Ram Chandra v. Emperor, A.I.R. 1930 Lah. 371, 374 17
Ram Nandan v. State, A.I.R. 1959 All 101 7
Rangarajan S. v. Jagjivan Ram P., (1989) 2 S.C.C. 574 3
Re S.S. Batliwala, A.I.R. 1938 Mad 758 (763) 17

RMD Chamarbaugwalla v. Union of India, A.I.R. 1957 S.C. 628 17


Romesh Thappar v. State of Madras, 1950 S.C.R. 594, 602 3
Sakal Papers (P) Ltd. v. Union of India, A.I.R. 1962 S.C. 305 (315) 4
Trial of Redhead Yorke, 25 St. Tr. 1003 4
Statutes
Pen. Code, 124A (1860) 4
Other Authorities
2 HalsBurys Laws of England, 479 812 (4th ed 2007) 10
7 Lok Sabha Secretariat, Constituent Assembly Debates, 731 (2008). 7
Law Commission of India, 42nd Law Commission Report, 149 (1971). 18
Manoj Mitta, Jawaharlal Nehru Wanted Sedition Law Out as Early as 1951, The Times of India (Mumbai) Sept. 11, 2012 at 9 7
Conventions & Treatises
International Covenant on Civil and Political Rights (ICCPR), (1966) Art. 1 12
International Covenant on Economic, Social and Cultural Rights,(1966) Art. 1 12
United Nations General Assembly, Universal Declaration of Human Rights, Dec. 10, 1948 12
Constitutional Provisions
Constitution of Afghanistan (2004) Article 4 11
Constitution of Algeria as amended in 1996 (1989) Article 6 11
Constitution of Bangladesh (2004) Article 7 11
Constitution of Belarus as amended in 1996 (1994) Article 3 11
Constitution of Brazil (1983) Article 1 11
Constitution of France (1958) Article 3 11
Constitution of Libya (1969) Article 1 11
Constitution of Mexico (1917) Article 39 11
Constitution of the Peoples Republic of China as amended through March 2004 (1982) Preamble, Articles 1 and 2 11
Constitution of the Republic of Indonesia (1945) Article 1 11

Constitution of Venezuela (1999) Article 5 11


Indian Const., art. 19 1 cl. a 3
Indian Const., art. 19 2 4
The Constitution of the Republic of Mali (1991) Preamble and Article 25 11
The Constitution of the Russian Federation (1993) Article 3; The 1945 11
Books
2 James Stephen, History of the Criminal Law, 299 (1883) 4
3 Edward Coke, The Selected Writings and Speeches of Sir Edward Coke, 254 (Steve Spheppard eds. 2003) (1600). 5
Aravind Ganachari, Combating Terror of Law in Colonial India: The Law of Sedition and the Nationalist Response, in Engaging
Terror: A Critical and Interdisciplinary Approach 98, 99, (M. Vandalos, G.K. Lotts et al eds. 2009) 6
Bodin, Six books of Republic, 35 (Tooley trans. 1980) (1576). 11
Durga Das Basu, Shorter Constitution of India, 278 (Justice A.R. Lakshmanan et al. eds. 14th ed. 2011). 3
John Hoffman, Sovereignty 97 (1998) 12
John Locke, Second Treatise of Civil Government, 65 (Thomas Hollis ed. Hackett Publishing Company 1980) (1764). 13
Kurt Mills, Human Rights in the Emerging Global Order A New Sovereignty, 39 (1998) 12
M.D.A. Freeman, Lloyds Introduction to Jurisprudence, 247 (8th ed 2010) 11
Manning, The Mind of Jeremy Bentham, 53 (1968). 11
Marlin Randal, Propaganda and The Ethics of Persuasion, 228 (2002) 3
McIlwain, Growth of Political Thoughts in the West, 268 (1968) 11
R. Dhavan., Only the Good News: On the Law of the Press in India, 287 (1987). 6
Ratanlal & Dhirajlal, The Indian Penal Code, 660 (V.R. Manohar ed. 2010) (1896) 5
S.K. Sarvaria, RA Nelsons Indian Penal Code, 1101 (10th ed 2008) 16
W. Ullman, Principles of Government and Politics in the Middle Ages, 72, 139, 150 (1961) 11
W.R. Donogh, A Treatise on the Law of Sedition and Cognate Offences in British India, 1 (1911). 6
Articles
Bernad L. Shientag, From Seditious Libel to Freedom of Press, 11 Brook. L. Rev. 125, 129 (1941) 9

Cathy Packer and Johanna Cleary, Rediscovering The Public Interest: An Analysis Of The Common Law Governing PostEmployment Non-Compete Contracts For Media Employees, 24 Cardozo Arts & Ent. L.J. 1073, 1114-1115, 1117 (2007) 15
Cindy G. Buys, Burying Our Constitution In The Sand? Evaluating The Ostrich Response To The Use Of International And Foreign
Law In U.S. Constitutional Interpretation,1 BYU J. Pub. L. 1, 18 (2007) 15
Helen Stacy, Relational Sovereignty, 99 Am. Soc'y Int'l L. Proc. 396, 2034 (2005). 13
Hurst Hannum, The Status Of The Universal Declaration Of Human Rights In National And International Law, 25 Ga. J. Int'l & Comp.
L. 287, 348 (1995/1996) 12
Jean d'Aspremont, Legitimacy Of Governments In The Age Of Democracy, 38 N.Y.U. J. Int'l L. & Pol. 877, 884 (2006) 15
Johan D. van der Vyver, Sovereignty And Human Rights In Constitutional And International Law, 5 Emory Int'l L. Rev. 321, 328
(1991) 14
Joy M. Purcell, A Right To Leave, But Nowhere To Go: Reconciling An Emigrant's Right To Leave With The Sovereign's Right To
Exclude, 39 U. Miami Inter-Am. L. Rev. 177, 182 (2007). 12
Lorie M. Graham, Reparations, Self-Determination, And The Seventh Generation, 21 Harv. Hum. Rts. J. 47, 62 (2008) 12
Michael J. Kelly, Pulling At the Threads of Westphalia: "Involuntary Sovereignty Waiver" - Revolutionary International Legal Theory
or Return to Rule by The Great Powers?, 10 UCLA J. Int'l L. & Foreign Aff. 361, 390 (2005) 12
Michel Rosenfeld, The Rule Of Law And The Legitimacy Of Constitutional Democracy, 4 S. Cal. L. Rev. 1307, 1332 (2001) 15
Roger B. Manning, The Origin of the Doctrine of Sedition, 12 Quatr. J. Con. Brth. Std. 99 (1980) 5
Ronald A. Brand, External Sovereignty And International Law, 18 Fordham Int'l L.J. 1685, 1687 (1995) 15
Srinivas Aravamudan, Sovereignty: Between Embodiment And Detranscendentalization, 41 Tex. Int'l L.J. 427, 430 (2006) 12
W. Michael Reisman, Sovereignty And Human Rights In Contemporary International Law, 84 Am. J. Int'l L. 866, 867 (1990) 12
William E. Conklin, The Origins of the Laws of Sedition, 15 Crim. L. Q. 277, 284 (1972). 4
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India Today, Throw Out Sedition from the Penal Code, (Dec 28, 2010) available at http://indiatoday.intoday.in/story/throw-outsedition-from-the-penal-code/1/124784.html 6
Jean Jacques Rousseau, The Social Contract, (1762) Book 1, Chapter 6 at http://www.constitution.org/jjr/socon_01.htm 14
NLSIU & ALF, Sedition Laws and The Death of Free Speech in India, 9 (2011) 6
PA Media Lawyer, Criminal Libel and Sedition Offences Abolished, Press Gazette Journalism Today (Jan. 13, 2010)
http://www.pressgazette.co.uk/node/44884 10

Introduction
It is indispensable for the operation of the democratic system [1] and for self-development and setting up a homogeneous egalitarian
society. [2] Democracy is extolled because of the freedom of speech and expression present in it. This freedom comes with the
freedom to critique, to critique government policies, government laws and administration. As Thomas I. Emerson say that
"Opposition serves a vital social function in offsetting or ameliorating (the) normal process of bureaucratic decay", [3] it shows the
requirement of criticism in a democracy. If freedom is the depiction of democracy, informed electorate is its element of survival. The
former U.S. Senate from Pennsylvania, Arlen Specter has once said that the essence of the democracy is an informed
electorate. [4] A well-informed voter is the foundation of democratic structure. [5] The State cannot prevent open discussion and
open expression however hateful to its policies, [6] or criticism of the incapacity of the Government. [7] Merely exciting disaffection
or bad feelings towards the Government is, therefore, no ground for restricting the freedom of speech and expression, under Art.
19(2). [8] If belief is necessary for the continuity of the democracy, criticism is must for the avoiding such democracy not to be turn
cripple. An old axiom is not to follow blindly. We all live in a democratic country, and we all have right to speech and right to choose.
If we have selected the government, then we should also have the right to comment on that government. This is the essence of
democracy. If the people, the electors would not be having the right to criticise their own representatives then there will be no
difference left, whatsoever, between a democracy and a monarchy. Ideally, there should be no law for the curtailment of freedom of
speech and expression, but for the sole reason that there cannot be any such thing as absolute or uncontrolled liberty wholly free
from restraint for that would lead to anarchy or disorder, [9] we have restrictions over freedoms. But these restrictions shall be
reasonable. In our constitution, we have been granted right to freedom of speech and expression under article 19(1)(a) [10] , and we
also have reasonable restriction under article 19(2). [11] Section 124A [12] is a substantive provision, which is a reflection of the
reasonable restrictions enumerated in the Constitution. But, the restrictive clauses in Cls. (2) (6) are exhaustive, [13] and are to be
strictly constructed. [14] Though in the case of Kedarnath v. State of Bihar, [15] the Supreme Court has saved Sec. 124A of the
I.P.C. from unconstitutionality by giving it a narrow construction following the view of the Federal Court in Niharendu v. King
Emperor [16] and rejecting the interpretation given to it by the Privy Council in King Emperor v. Sadashiv. [17] But the question
remains the same. If we live in a free-democratic country, then why should we have such anti-democratic laws on the first place?
The cases of Dr Binayak Sen and Aseem Trivedi have once again initiated the debate over this draconian law.

Sedition and India


The Indian Penal Code, which is a comprehensive code, intended to cover all substantive aspects of criminal law and which is the main criminal code of the
country was prepared by the first law commission, which was headed by Lord Macaulay. The section corresponding to section 124A, the law that defines sedition
in the IPC, was originally section 113 of Macaulays Draft Penal Code of 1837-39, but the section was omitted from the IPC as it was enacted in 1860. [31] James
Fitzjames Stephens, the architect of the Indian Evidence Act, 1872, has been quoted as saying that this omission was the result of a mistake. [32] Another
explanation for this omission is that the British government wished to adopt more wide ranging strategies against the press including a deposit-forfeiture system
and general powers of preventive action. [33] In 1898, Section 124A was incorporated in the Code, and for the first time, India came across to the word Sedition.
The word sedition does not occur in section 124A or in the defence of India Rule. [34] It is only found in the marginal note to Section 124A n dos not an operative
part of the section but merely provides the name by which the crime defined in the section will be known. [35] The British Parliament debates reveal that it was
inserted to deal with freedom fighters. [36]
The first case on Section 124A was Queen Emperor v. Jogendra Chandra Bose. [37] Bose, the editor of the newspaper, Bangobasi, wrote an article criticising the
Age of Consent Bill for posing a threat to religion and for its coercive relationship with Indians. [38] His article also commented on the negative economic impact of
British colonialism. [39] Bose was prosecuted and accused of exceeding the limits of legitimate criticism, and inciting religious feelings. [40] However, the
proceedings against Bose were dropped after he tended an apology. [41]
But the most famous case of sedition was the Bal Gangadhar Tilaks Case. [42] The fundamental moral question that Tilak raised was whether his trials constituted
sedition of the people against the British Indian government (Rajdroha) or of the Government against the Indian people (Deshdroha). [43] The question raised by
Tilak was of up most importance then as well as today also. As per the interpretation given by the Courts across the nation, a statement against the government
can also be held crime under Sedition laws. But the question is that it is the nation to whom the people pay their gratitude, and the government is merely the
chosen representatives of the people, by the people. Any statement against the country, against the motherland can be termed as traitorous, but a statement
against the government will only amount to criticism. We have selected the government; hence we have the full right to question their judgements, to analyse their

policies and to cherish them as well as criticise them. As it was stated earlier that criticism of the government is an essential part of democracy, and if it would be
clogged then that would amount to death of democracy.

Sedition and Constituent Assembly


The irony of the sedition law used against nationalists like Gandhi and Tilak continuing in the
statute books of independent India was not lost on those drafting the Constitution. [44] In 1951,
the first Prime Minister of India, Jawaharlal Nehru had said that "[N]ow so far as I am concerned
that particular section [Sec. 124A] is highly objectionable and obnoxious and it should have no
place both for practical and historical reasons, if you like, in any body of laws that we might
pass; The sooner we get rid of it the better". [45] The freedom fighters had witnessed the ill
effect of this law, and probably that is why a leader like Jawaharlal Nehru stood against its
incorporation in Indian Penal System.
While in their Draft Constitution, the Constitutional Framers included sedition as a basis on
which laws could be framed limiting the fundamental right to speech (Article 13), in the final
draft of the Constitution sedition was eliminated from the exceptions to the right to freedom of
speech and expression (Article 19 (2)). [46] This amendment was forwarded by K.M. Munshi.
As K.M. Munshi said that "I was pointing out that the word sedition has been a word of varying
import and has created considerable doubt in the minds of not only the members of this House
but of Courts of Law all over the world; Its definition has been very simple and given so far back
in 1868; It says "sedition embraces all those practices whether by word or deed or writing which
are calculated to disturb the tranquillity of the State and lead ignorant persons to subvert the
Government"; But in practice it has had a curious fortune". [47] He also went to the extent of
saying that "the public opinion has changed considerably since and now that we have a
democratic Government a line must be drawn between criticism of Government which should be
welcome and incitement which would undermine the security or order on which civilized life is
based, or which is calculated to overthrow the State". [48] Thus the framers of our Constitution
were clearly aware of the tainted history of sedition laws and did not want the right to free
speech of independent Indians restricted by these draconian provisions. [49] By removing
sedition from the terms included in Article 19(2) the Constitution makers signalled their wish to
move away from the colonial order where legitimate dissent was denied to Indians. [50]

Interpretation of the Judiciary; Ram Nandan v. Kedar Nath


The two most important judgements in this regard will be Ram Nandan v. State [51] and Kedar Nath v. State of Bihar. [52] Both the
cases were decided during the same period, but the interpretation of the law was different in both the cases. On a critical
examination, both judgements could be termed as sound, but on a practical approach, it is very difficult to ascertain.
The constitutionality of the provision was challenged in both the cases. On one hand, in Ram Nandan, the Allahabad High Court
held the provision unconstitutional on the grounds of its contrariness to Article 19(2). The court relied upon the decision of Romesh
Thappar v. State of Madras; [53] court took into account the interpretation of the word public order made by the learned bench in
the aforesaid case. The court looks into the history of the law, and its draconian use. They felt that in a free and civilised society,
there is no place for such laws. Relying upon Dr. Ram Manohar Lohia v. Superintendent Central Prison, Fategarh [54] and held that
right grated under article 19(1) is absolute in nature.

Though, practically, the judgement of sound nature; It is true that in a democratic environment we dont need laws like sedition.
Sedition is a law which supress freedom of speech and expression, and it is the shield for those who are dreaded by the power of
free speech. The democratic society is been found the founding stone of freedom. Freedom of speech is the essence of it. Hence
there is no area of doubt left for the execution of the law.
Despite of the philosophy involved in the interpretation of the law, Supreme Court overruled the judgement of Ram Nandan in Kedar
Nath. In this case, Supreme Court analysed the earlier decisions of the Privy Council and of the Federal Court. But in doing so, the
Supreme Court forgot the circumstance and state of affairs prevailing in the past and in the present. Earlier, India was not free. We
were not having freedom of speech. We were ruled by a foreign state, on the power of force and compulsion. That administration
was not having the faith of the masses. The lack of support and the growing sagacity of rebel in the country had constrained the
Britishers to rule on the basis of power. Their prime motive was to protect their empire from getting out thrown. For that, they could
have gone to any extent. Sedition laws were a part of that extent. The courts were the puppets of them, and hence their
interpretation was in such a manner which relishes the rulers, not the people. Even if, it is argued that Federal Court took into
existence after the independence, and it was not pressurised by the britishers, despite of the fact, it also judge the law on the line of
Privy Council only, means that the interpretation of the earlier court was unbiased and correct, cant be taken. Even though the
Federal Court was unpressurised, but the fact that during their regime we were not having a Constitution in effect, questions their
judgement too. Judges have to put their judgement on the basis of the existing law. If that has to be taken into account then the
Federal Court was right in Niharendu v. King Emperor. [55] But, when we have a constitution into effect, then the laws shall be
interpreted accordingly, which was done by Allahabad High Court. But the irony is that the Apex Court failed to judge in the same
lines.

Do We Need Sedition Laws


When we look behind in the past, we see that earlier, freedom of speech and expression was not given the amount of weightage as
it is given nowadays. Earlier, the concept that was ruling across the world was of that the "Kind can do no wrong". Coke's idea of a
libel may be stated generally to have been "written blame, true or false, of any man public or private, the blame of public men being
a more serious matter than the blame of a private man". [56] With the view that the King and his Counsellors were the masters, that
they were superior and not to be subject to censure, there naturally developed the conception of seditious libel as anything written
that expressed dissatisfaction with the existing government and censure upon those by whom its authority was exercised. [57] It was
a reflection of the old idea that "the King can do no wrong". [58] For a subject to suggest otherwise was a serious criminal offense.
The essence of the offence of treason lies in the violation of the allegiance owed to the Sovereign. [59]

Importance of Sovereignty in Sedition


Sedition law was made in a time when freedom of speech was not given due weightage. It was an easy step from the dogma, the
king can do no wrong, to the corollary, the king's councillor, the king's chancellor, the court can do no wrong. [60] The courts are
fallible, though some of us seem fearful of admitting it. [61] It was due to this simple reason we find laws like treason and sedition.
The whole idea of these laws was protection of the Crown from rebel as well as criticism.
After the dawn of democracy, people started recognizing the importance of the right of speech and expression. As Justice Minister
Clair Ward has said that "[F]reedom of speech is now seen as the touchstone of democracy, and the ability of individuals to criticise
the state is crucial to maintaining freedom". [62] Once, the spring of democracy started, ideally such laws should not be in effect any
more. Earlier, the Crown and the Church was not selected by the people, they use to inhere the supremacy. This non-involvement of
people created a fear among the royals. This was the fear of getting overthrown. This fear was the cause of such draconian laws. It
is reflected from the discussions of the British Parliament; when they wanted to incorporate sedition in the IPC, the debate happened
on the same grounds, and the reason that was put forward was of the threat of revolution present in the country after the revolt of
1857.

But now the scenario is changed. Now the governments are selected by the people, for the people. Governments are not like earlier
monarchs, now they contest for the power, and it is the people who choose them. The days of inheritance have bygone. Now, it is
the rule of the people.

Transformation in the Concept of Who is Sovereign


Earlier, the concept was that the king is sovereign. The modern doctrine of sovereignty derived essentially from two lines of
development which heralded the end of the medieval period. [63] On the one hand there was the rise of the new national states
anxious to assert their total independence in a new age of economic expansion and to reject all feudal notions of overlordship or
papal interference; on the other, a departure from the medieval idea of law as being fundamentally custom, legislation as merely a
form of declaring the existence of new customs. [64] On the contrary each national territory was now recognized as constituting both
a self-sufficient unit and an independent legal entity, so that the notion naturally followed that, within each such nation state, there
must be located some supreme power, the decisive feature of which was its virtually unlimited capacity to make new law. [65] This
doctrine was more than a reassertion of the earlier theory that rex est imperator in regno suo. [66] For it emphasised in a way that
the earlier theorists would have been unacceptable the idea of unfettered legislative capacity. [67] The new approach was secular
and positivist, and though lip-service continued to be paid to a notional subjection to override natural law, [68] the supporters of legal
sovereignty tended increasingly to whittle down him one of the creators of the welfare state. [69]
The change in the political arena of the world has compelled the law makers to rethink on the past laws. Sedition laws were part of
the legal system during the period when king was the sovereign. Current the people are sovereign. The phrase "sovereignty in the
people" captures the true identity of the sovereign in whom the rights of sovereignty are vested. While traditionally the state was
treated as the sovereign, or the government acting on its behalf, domestic and international law supports the shift of sovereignty to
the people. From the most liberal democracies to the most autocratic of states, most constitutions proclaim that the people are
sovereign. [70] Sovereignty in the people also likely forms part of customary international law. The Universal Declaration of Human
Rights (UDHR) states in Article 21(3) that: "The will of the people shall be the basis of the authority of government." [71] As a
declaration, the UDHR is non-binding; however, many academics and practitioners believe that its provisions are customary
international law. [72] To the extent this assertion is true; all governments then must abide by sovereignty in the people regardless of
whether their domestic law or constitutions expressly adopt the concept. Sovereignty in the people also receives support as a
principle of customary international law to the extent sovereignty is treated as synonymous with self-determination, [73] which is an
accepted principle of customary international law. [74] At its most basic, self-determination is the right to govern
oneself; [75] sovereignty in the people then would grant "the people" the right to govern themselves. More broadly, the International
Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights define selfdetermination as the right of peoples to "freely determine their political status and freely pursue their economic, social and cultural
development." [76]
If the people are sovereign, then the benefits of sovereignty belong to them. The people then can choose how to exercise that
sovereignty. In practice, they transfer their rights as sovereign to representatives that serve as the government. [77] The government
then conducts the states domestic and international affairs as the peoples representatives and receives the benefits of sovereignty
as such. [78] Governments, however, are not inherently deserving of the rights and protections of sovereignty; rather, they receive
them only if the people choose to grant them. Governments then must act based on the will and common good of their
constituencies. Any government that controls the state against the wishes of the people does not receive sovereign authority. It may
have the power to enforce its will against the people, but the illegitimate government is not entitled to sovereign rights.
The Jurisprudence behind the Belief of Sovereignty of the People
The theoretical underpinnings of this understanding of "sovereignty in the people" derive from centuries-old thinkers such as John
Locke and Jean-Jacques Rousseau. Locke theorized about sovereignty in the people or popular sovereignty in his Second Treatise
of Civil Government (1690). He starts by describing the formation of a political community to counter the violence that can occur
when individuals pursue their interests without regard for others and without a superior body to protect them. [79] To protect against
such chaos, individuals consent to a social contract in which they agree to follow the laws of a government that will act based on the
common good of the community. [80] Each individual agrees to turn over his/her natural rights as an individual to a government to
better protect his/her interests. The majority of the political community determines the common good the government protects. [81]

Locke expected the government, now holding sovereign authority, to regulate relationships between individuals and protect their
property rights that of life, liberty and property. [82] He describes these as natural rights that transcend claims of sovereignty. The
government is not permitted to deprive individuals of any of these rights; [83] if it does, the people have a right to revolt against the
government or to secede from the territory under its control. [84] Through the social contract, the people give the government the
authority to act for their common good; if the government uses its authority to violate natural rights, the authority is revoked. [85]
Rousseau developed the concept of sovereignty in the people along similar lines. [86] Like Locke, Rousseau believed that
individuals reach a social contract for their self-preservation. [87] They place their natural rights in government hands to protect their
interests and the common good; these rights are returned to the people if the government violates the social contract. [88] Rousseau
believed that individuals must relinquish some of their natural liberty, which is determined by their individual strength to pursue their
own interests, when forming a political community. However, he considered the rights the individuals receive in return, including to
justice, to be greater than those surrendered. [89] These greater rights are determined by the will of the people as a collective and
are intended to be shared equally. [90] When the government uses its strength to override the will of the people, then according to
Rousseau, the government becomes the master, not the sovereign. [91]
Under Rousseaus theory, the people vest their sovereign authority in a legislature that is chosen by the people. [92] As the peoples
representative, the legislature has the absolute authority of the traditional concept of sovereignty. [93] Rousseau did not foresee any
potential conflict of interest between the people and the legislature:
The sovereign legislature thus was identified by Rousseau with the general will of the people. As such, the legislature could never
enact a law which it could not break, and since the subordinates of state authority are also constituent parts of the volont gnrale
[general will], those subjects and the general will can never have conflicting interests. [94]
Both theorists saw the social contract as a mechanism for organizing the domestic affairs of the political community. It is an
agreement between individuals to establish a government that must abide by the will of the majority and act on the basis of the
common good of that community. [95] Individuals relinquish their rights to the government for their protection and the government
receives sovereign authority. Individuals, however, always retain the power to revoke the social contract when the government
violates those rights. As with traditional rules of international relations in which states must consent to limit their sovereignty,
domestic relations depend on the consent of the sovereign individual to limit his or her sovereignty. The works of Locke and
Rousseau greatly influenced the French and American revolutions and are credited with establishing the basis for democracy and
human rights. [96] These two philosophers and the movements that followed them began to shift the title of sovereign to the
people. [97]

Time for Change: Repeal Sedition Law


Relying on Locke and Rousseaus concept of a social contract and supported by constitutional and international legal guarantees of
sovereignty in the people, governments do not have the power to act independently of their people. They serve as the
representatives of the people, not the state, which is merely a territorial unit in which a political community lives. As representatives
of the people, the government is tasked with protecting the political community from domestic and international threats to their
security and the common good. [98]
Since, now it is the people who are sovereign, there is no need of laws like sedition. Sedition prevents the government from criticism
due to the sole reason that they are Sovereign. Since, they are no more sovereign, they are not entitled for this protection. This is the
reason why sedition laws are getting repealed across the world. New Zealand, England, Australia are the countries who have
repealed the law of sedition. The vagueness involved in the definition of the crime has also acted significantly in its dissolution. Apart
from it, the stiffness, which got created due to the uprising of freedom of speech and expression, also played an important role in
creating a dilemma on the legitimate use of the law. The whole idea of freedom of speech and sovereignty of the people left no
scope of execution for the law. When the reason for which the law was made is itself no more in existence, there is no other purpose
left for carrying such law any further. This is the point which human right activists and the advocates of free speech are raising
across the globe. Countries like New Zealand, England and Australia has acknowledged the change and worked accordingly.

Recommendations and Conclusions

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. [99] 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 programme and policy; that the mere use of words fights and war in their pledge did not necessarily
mean that the Society planned to achieve its objective by force and violence. [100] 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. [101] 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. [102] 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 having changed, society is stronger than
before. [103] Since the decision of their Lordships of Privy Council in Emperor v. Sadashiv Narayan Bhalerao, [104] 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. [105] 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. [106] 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. [107]
The truth of otherwise of the aspersions cast upon the government is immaterial and it has no jurisdiction for seditious
utterance. [108] 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. [109] On the other hand, fair criticism of the government is no offence, and it is quite possible to
express dissatisfaction without exciting disaffection. [110] 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. [111] It was laid down in R. v. Sullivan, [112] 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 doesnt 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 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 dont 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 [113] that we cant 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 cant be ascertain. Hence, by the time, public order is not disturbed, we cant 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. [114] 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. [115] 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 cant 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.

http://www.outlookindia.com/magazine/story/a-stick-called-124a/281402
Why sedition rings hollow in India 2012
The law Section 124(A) of the Indian Penal Code, 1870; non-bailable offence
The definition Whoever by words, either spoken or written, or by signs, or by visible representation, or
otherwise, brings or attempts to bring into hatred or contempt, or excites or attempts to excite disaffection towards
the government established by law in India
The accusers Other than the State, even individuals are free to file charges
The punishment 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 misuse While the Supreme Court has specifically laid down that the provisions of section 124(A) are only
made out where there is a tendency to public disorder by use of violence or incitement to violence, the clause has
been grossly misused. While convictions are rare, the long and tortuous legal process is seen as a deterrent to others.
The victims The law is being used to punish fierce critics of the government, including political
dissenters, human rights activists and journalists
Global status

UK abolished sedition laws in 2010

New Zealand repealed it in 2008


***

rakash Ram, a farmer from a village near Haldwani in Uttarakhand, had never heard of Mao Tse Tung.

Ironically enough, his first lesson on Chairman Mao and his ideology came not from some gun-toting guerrilla but
the Uttarakhand police. Accusing him of being a Maoist, they arrested him oncharges of sedition on August 30,
2004. It has taken eight years for the 28-year-old to be finally cleared of the taint, by the Rudrapur sessions court
this month. I spent two of the best years of my life behind bars (he was granted bail in 2006) and six more years in
my legal battle for justice, he says. I may be free now but this arrest has spoilt my reputation and will make it
difficult for me to get work. Who will pay for this? Will someone be held responsible?
The dark days of Emergency, rung in 37 years ago this week, may have become a distant memory for some, but for
many others, an Emergency-like situation is a recurring reality. Just as in 1975 and the year after, when the State
suppressed dissent and abolished civil rights, the democratic republic of India continues to target disaffected voices
and accuse of sedition anyone it sees as a threat.
Lost years Prakash Ram, a farmer from Haldwani, accused of being a Maoist. (Photograph by Tribhuvan Tiwari)

Rajinder Sachar, a retired chief justice of the Delhi High Court, thinks the situation today is actually worse. In
1975, he says, the Emergency was more of a political game played by one political party but now everyone is
restricted from speaking. One law after the other is passed, stopping one from speaking openly. A situation is being
created where anybody can be declared anti-national. We are actually going through an undeclared Emergency.
One of the latest victims of Section 124(A), a law that deals with sedition and which is a handy tool for the
government to target trenchant critics, is Seema Azad and her husband Vishwa Vijay. A journalist couple from
Allahabad, they had written fearlessly about corruption and illegal mining in Uttar Pradesh. Charged with sedition,
the two were sentenced to life imprisonment and a fine of Rs 70,000 by a sessions court in Allahabad on June 8.

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Seema and Vijay were arrested in February 2010 at the Allahabad railway station on their return from New Delhi.
They were accused of being members of the banned CPI (Maoist) group simply because the police deemed the
literature recovered from them to be anti-national. Their advocate Ravi Kiran Jain argues that this verdict ignores
the observations the two-judge bench of the Supreme Court made in 2011 while hearing the bail plea of Dr Binayak
Sen, who too was charged with sedition. If someone has the autobiography of Gandhi at his home, will he be called
a Gandhian, the apex court had famously asked the prosecution lawyer. Even in this case, says Jain, Seema and
her husband were simply in possession of some literature on Maoism. This does not make them Maoists. The
advocate now plans to file an appeal on behalf of the duo in the Allahabad High Court.
Mission aborted Salems Piyush Sethia

Other than Dr Sen and the Allahabad couple, there were at least six other high-profile cases involving sedition in
2010. They include Arundhati Roy, who was booked under Section 124(A) for making a speech supporting azadi in
Kashmir, and Salem-based environmental activist Piyush Sethia, who was accused of sedition for disrupting a
Republic Day ceremony in Salem in 2010 by attempting to distribute a controversial anti-mining leaflet. In fact,
things took on a farcical turn when Srinagar-based lecturer Noor Mohammed Bhatt was slapped with the sedition
charge in December the same year for including a question in an English paper asking if stone-pelters were the real
heroes and asking students to translate from Urdu to English a passage that read, Kashmiri blood is being spilled
like water, Kashmiri children are being killed by police and Kashmiri women are being showered with bullets.
There is no official record of the total number of cases involving sedition, but the sudden spurt in such cases has
generated much concern. Civil rights groups have launched a nationwide campaign to have the law repealed. Says
veteran journalist Kuldip Nayar, who was in jail during the Emergency, The sedition law is a weapon in the hand of
the State which evokes doubts, suspicion and hatred in the mind of the people against whom the charges are made.
Such an undemocratic and anti-people law must be repealed immediately. In fact, it should have been done many
years back. Most of these cases (see Memories of Another Day) have targeted people who have fearlessly spoken
up for the rights of the marginalised, especially the Dalits and tribals.
It was for this reason that Sudhir Dhawale, a Dalit rights activist from Mumbai, was picked up by the Maharashtra
police from Wardha in January last year for being a Naxal supporter. Still lodged in a Nagpur jail, many speculate
the real reason he was picked up was his writings and activities that helped mobilise Dalits for their rights. Like him,
Gananath Patra, the 73-year-old convenor of Chasi Muliya Adivasi Sangh in Narayanpatna in Orissa, too was
charged with sedition and put behind bars in January 2010. He was released on bail earlier this month due to poor
health but on the condition that he must not engage in any activism. He had earlier helped tribals in and around
Narayanpatna take back around 10,000 acres of land that had been forcefully acquired from them.
Of course, it is activism in areas under the grip of left-wing extremism that the government is extremely sensitive
about. Sethia, the Salem-based activist, found himself in the crosshairs precisely for this. Carrying pamphlets
criticising Operation Green Hunt, he was set to spread his message cycling all the way to Sivaganga, the
constituency Union home minister P. Chidambaram represents. However, the Tamil Nadu police arrested him in
Salem itself, even before he could distribute the pamphlets at the R-Day ceremony there. Out on bail since February
2010, the sedition charges still hold. The real cause for his arrest though, Sethia believes, is his fight against illegal
mining in the region. He was the main litigant in a case in the Madras High Court that resulted in the closure of a
local mining unit that belonged to Vedanta. Funnily enough, there has not been a single hearing in Sethias case so
far. Either they should drop the charges, or they should go ahead with the case and finish it off. It is a sort of leash
on my activities, says Sethia, whose questioning gaze encompasses areas like the Forests Rights Act and water
pollution and privatisation.

The nuclear flashpoint Koodankulam agitators are viewed with suspicion


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uclear energy is another area that the government, including at the state level, has begun to get touchy about.

The slightest whiff of opposition is promptly dismissed as anti-national. Little wonder then that as many as 3,500
protesters were charged with sedition in the aftermath of the Koodankulam protests in Tamil Nadu, where locals
were agitating against the construction of a nuclear power plant. Says V. Suresh, an advocate at the Madras High
Court and someone who has spent time with the locals, While laws are meant to protect the people, in this case, the
sedition law has been clearly misused by the government to further its interests.
Anand Swaroop Verma, Delhi-based editor of monthly journalSamkaleen Teesri Duniya, expresses concern at
a different level. This crackdown by the State, he says, has been met with only rare instances of media criticism and
scrutiny. He attributes this to a media cooption strategy which ensures reporting of sedition cases is largely
favourable towards the government. Six years back, the PM, in a conference on internal security with CMs, had
urged them to coopt the media and get them to play a more positive role in the fight against terrorism, he adds. The
media, of course, often colludes wilfully.
Even when filed on flimsy grounds, the legal hassles and harassment the sedition charge involves serve as a
deterrent to others, forced as they are to think twice before taking on the might of the State. Ask E. Rati Rao, vice
president of the Peoples Union for Civil Liberties in Karnataka. While she was booked under sedition for asking
uncomfortable questions on encounter deaths in the Malanadu area in October 2007, the case against her was
dismissed in September 2010 after the police failed to file a chargesheet. All they wanted to do was just terrorise
me, and by doing so, terrorise others, she says. This sedition law and democracy do not go together. It is leading
the State towards fascism.
For a Congress-led government that draws its inspiration and legacy from Jawaharlal Nehru, it would do well to act
on what the countrys first prime minister had to say on the sedition clause in a parliamentary debate in 1951 on the
First Amendment to the Constitution. Now so far I am concerned that particular section (124-A) is highly
objectionable and obnoxious and it should have no place both for practical and historical reasons...the sooner we get
rid of it the better.
***
Memories Of Another Day
How a repressive 19th-century law is being indiscriminately unleashed on citizens fighting for the rights of their
fellow citizens

Jogendra Chandra Bose The first case, in 1891, when the editor of Bangobasi was

charged for criticising the British govts move to raise the age on consensual sex from
10 to 12, and for commenting on the negative economic impact of British colonialism
Mahatma Gandhi Charged, along with Shankerlal Banker, the proprietor of Young

India, for three articles in the weekly. Convicted in 1922.


Balgangadhar Tilak The British govt alleges his speeches instigated the murder of

two British officers. Convicted in 1897, 1905, 1916.


Manoj Shinde Editor, Surat Saamna, charged in Aug 06 for using abusive words
against Narendra Modi in an editorial alleging administrative failure in tackling the Surat
flood situation

Kahturam Sunani Journalist, OTV, Charged in May 2007 in Sinapali, Orissa, for filing

a report that Pahariya tribals were consuming soft dolomite stones in Nuapada district
due to acute hunger.
Binayak Sen Doctor & Human Rights Activist. Charged in May 2007 in Raipur for

allegedly helping courier messages to Maoist leaders. Sen had criticised the
Chhattisgarh govts support to the vigilante group Salwa Judum.
E. Rati Rao Resident Editor, Varthapatra, charged in Oct 2007 2010 in Mysore,

Karnataka, for an article alleging encounter deaths in Karnataka.


Prashant Rahi, Journalist, charged in Dec 2007 for allegedly possessing Naxal

literature
Bharat Desai Resident Editor, Times of India, AhmedabadGautam

Mehta Photographer, Gujarat Samachar Charged in Jun 2008 for articles and
photographs alleging links between the Ahmedabad Police Commissioner and the
underworld
Kirori Singh Bainsla Gujjar community leader Charged in Jun 2008 in Bayana,

Rajasthan, for leading an agitation demanding ST status for Gujjars


Lenin Kumar Editor, Nishan, Charged in Dec 2008 in Bhubaneshwar for publishing a

booklet on the Kandhamal riots entitled Dharmanare Kandhamalre Raktonadhi


(Kandhamals rivers of blood)
Laxman Choudhury Journalist, Sambadh, Charged in Sep 2009 in Gajapati district,

Orissa, for allegedly possessing Maoist literature. Choudhury had been writing about the
involvement of local police in illegal drug trafficking.
V. Gopalaswamy (Vaiko) Politician, MDMK, Charged in Dec 2009 in Chennai for

allegedly
making remarks against Indias sovereignty at a book launch function
Piyush Sethia Environmentalist and Organic Farmer, charged in Jan 2010 in Salem,

Tamil Nadu, for trying to distribute pamphlets during protest against Chhattisgarh govts
support to Salwa Judum
Niranjan Mahapatra, Avinash Kulkarni, Bharat Pawar, others Trade union

leaders and social activists Gujarat police allege links with CPI (Maoist).
Arundhati Roy, S.A.R. Geelani, Varavara Rao, Shuddhabrata Sengupta,

others Private complaint in Nov 2010 in Delhi alleging their speeches on Kashmir in a
seminar are anti-India
Noor Mohammed Bhatt Lecturer, Gandhi Memorial College, Srinagar, in Dec 2010

for
setting a question paper for English literature students on whether stone pelters were
the real heroes.
Sudhir Dhawale Dalit rights activist and freelance journalist, Wardha. Maharashtra
police allege links with CPI (Maoist) in 2011.

Also show procedural defect of s.196 Crpc. Although it is on side of appellant but no one in college would be able to make a rebuttal
and hence it would be the best point to argue on procedural defect and thus arguing on respondent side becomes healthy.

Respondent
Free Speech and the Law on Sedition

http://cis-india.org/internet-governance/blog/freespeech-and-the-law-on-sedition
Siddharth Narrain explains how the law in India has addressed sedition.
Sedition is an offence that criminalizes speech that is construed to be disloyal to or threatening
to the state. The main legal provision in India is section 124A of the Indian Penal Code that
criminalizes speech that brings or attempts to bring into hatred or contempt, or attempts or
attempts to excite disaffection towards the government. The law makes a distinction between
disapprobation (lawful criticism of the government) and disaffection (expressing disloyalty or
enmity which is proscribed).
The British introduced this law in 1898, as a part of their efforts to curb criticism of colonial rule,
and to stamp out any dissent. Many famous nationalists including Bal Gangadhar Tilak and
Mahatma Gandhi have been tried and imprisoned for sedition. After a spirited debate, the Indian
Constitutional Assembly decided not to include sedition as a specific exception to Article 19(1)
(a). However section 124A IPC remained on the statute book. After the First Amendment to the
Constitution and the introduction of the words in the interests of public order to the exceptions
to Article 19(1)(a), it became extremely difficult to challenge the constitutionality of section 124A.
In 1962, the Supreme Court upheld the constitutionality of the law in the Kedarnath Singh case,
but narrowed the scope of the law to acts involving intention or tendency to create disorder, or
disturbance of law and order, or incitement to violence. Thus the Supreme Court provided an
additional safeguard to the law: not only was constructive criticism or disapprobation allowed,
but if the speech concerned did not have an intention or tendency to cause violence or a
disturbance of law and order, it was permissible.
However, even though the law allows for peaceful dissent and constructive criticism, over the
years various governments have used section 124A to curb dissent. The trial and conviction of
the medical doctor and human rights activist Binayak Sen, led to a renewed call for the
scrapping of this law. In the Aseem Trivedi case, where a cartoonist was arrested for his work
around the theme of corruption, the Bombay High Court has laid down guidelines to be followed
by the government in arrests under section 124A. The court reaffirmed the law laid down in
Kedarnath Singh, and held that for a prosecution under section 124A, a legal opinion in writing
must be obtained from the law officer of the district(it did not specify who this was) followed by a
legal opinion in writing within two weeks from the state public prosecutor. This adds to the
existing procedural safeguard under section 196 of the Code of Criminal Procedure (CrPC) that
says that courts cannot take cognizance of offences punishable under section 124A IPC unless
the Central or State government has given sanction or permission to proceed.

The serious nature of section 124A is seen in the light of the punishment associated with it.
Section 124A is a cognizable (arrests can be made without a warrant), non-bailable and noncompoundable offence. Punishment for the offence can extend up to life imprisonment.
Because of the seriousness of the offence, courts are often reluctant to grant bail. Sedition law
is seen as an anachronism in many countries including the United Kingdom, and it has been
repealed in most Western democracies.

IMPORTANT CASE LAW


Kedarnath Singh v. State of Bihar, AIR 1962 SC 955
Supreme Court, 5 Judges,
Medium: Offline
Brief Facts: Kedarnath Singh, a member of the Forward Communist Party, was prosecuted for
sedition related to a speech that he made criticising the government for its capitalist policies.
Singh challenged the constitutionality of the sedition law. The Supreme Court bunched Singhs
case with other similar incidents where persons were prosecuted under the sedition law.
Held: The law is constitutional and covered written or spoken words that had the implicit idea of
subverting the government by violent means. However, this section would not cover words that
were used as disapprobation of measures of the government that were meant to improve or
alter the policies of the government through lawful means. Citizens can criticize the government
as long as they are not inciting people to violence against the government with an intention to
create public disorder. The court drew upon the Federal Courts decision in Niharendru Dutt
Majumdar where the court held that offence of sedition is the incitement to violence or the
tendency or the effect of bringing a government established by law into hatred or contempt or
creating disaffection in the sense of disloyalty to the state. While the Supreme Court upheld the
validity of section 124A, it limited its application to acts involving intention or tendency to create
disorder, or a disturbance of law and order, or incitement to violence.

Balwant Singh and Anr v. State of Punjab: AIR 1985 SC


1785
Brief Facts: The accused had raised the slogan Khalistan Zindabad outside a cinema hall just
after the assassination of Prime Minister Indira Gandhi.
Held: The slogans raised by the accused had no impact on the public. Two individuals casually
raising slogans could not be said to be exciting disaffection towards the government. Section
124A would not apply to the facts and circumstances of this case.

Sanskar Marathe v. State of Maharashtra & Ors,


Criminal Public Interest Litigation No. 3 of 2015,
Bombay High Court, 2 judges : Case law in which I

can state that the law is under the procedural


defect and thus under the defected law no one
can be punished
Medium: Online and Offline
Brief Facts: The case arose out of the arrest of Aseem Trivedi, a political cartoonist who was
involved with the India Against Corruption movement. Trivedi was arrested in 2012 in Mumbai
for sedition and insulting the National Emblems Act. The court considered the question of how it
could intervene to prevent the misuse of section 124A. Held: The cartoons were in the nature of
political satire, and there was no allegation of incitement to violence, or tendency or intention to
create public disorder. The Court issued guidelines to all police personnel in the form of
preconditions for prosecutions under section 124A: Words, signs, or representations must bring
the government into hatred or contempt, or must cause, or attempt to cause disaffection, enmity
or disloyalty to the government. The words, signs or representation must also be an incitement
to violence or must be intended or tend to create public disorder or a reasonable apprehension
of public disorder. Words, signs or representations, just by virtue of being against politicians or
public officials cannot be said to be against the government. They must show the public official
as representative of the government. Disapproval or criticism of the government to bring about a
change in government through lawful means does not amount to sedition. Obscenity or vulgarity
by itself is not a factor to be taken into account while deciding if a word, sign or representation
violates section 124A. In order to prosecute under section 124A, the government has to obtain a
legal opinion in writing from the law officer of the district (the judgment does not specify who this
is) and in the next two weeks, a legal opinion in writing from the public prosecutor of the state.
************************************************************************************

. http://archive.tehelka.com/story_main49.asp?
filename=Op300411Not21st.asp
.Not a 21st century law
Abuse aside, sedition is an invalid law by international standards
Margaret
New Delhi

Stride

MUCH HAS been said about the abuse of the law of sedition. The granting of bail by the Supreme Court to
human rights activist Binayak Sen has further stoked the debate. Patent misuse, abuse and misapplication
aside, sedition is bad law; it infringes upon the Constitutional right of every citizen to freedom of expression.

Related
Nation
outraged
The
Doctor,
The
Final Statement of Binayak Sen

by
State,

Binayak
And

Sen
Sinister

verdict Freedom of expression is not


Case absolute; other laws can limit it,

but in order for these to be


legitimate
they
must
be
reasonable restrictions, which
protect other important interests such as State security and public order. In light of the developments in
international law, there is a need to re-examine the law now, nearly 50 years after the Constitution Bench of the
Supreme Court in 1962 held Section 124A (the sedition section of the Indian Penal Code) constitutional. The
offence of sedition cannot meet those international standards that are required for any law, which limits
freedom of expression. An analysis of the reasoning employed by the Supreme Court in 1962 will show why it
is not applicable today.
In 1962, in the case of Kedar Nath Singh vs the State of Bihar, the Supreme Court decided on the scope of
Section 124A and narrowed its ambit; holding only those matters that had the intention or tendency to incite
public disorder or violence would be made penal by the section. The court rejected the interpretations of early
cases and that of the Privy Council in 1944, which brought far more acts within the section and made it easy for
the colonial government to class any criticism of the State seditious. The Supreme Court endorsed stricter
interpretation given to the section by the Federal Court in 1942.

On flimsy ground Rights activist Binayak Sen being taken away to jail after he was charged with sedition
Photo: Shailendra Pandey

That brings us to the question: What is sedition in 2011? There are two scenarios where a person could be
guilty of sedition. One, where he makes a speech or publishes a pamphlet that actually results in violence or
public disorder. Two, the words or acts of a person do not actually result in any violence or public disorder;

however, the police and the court feel that the words or acts had this tendency, or he had the subjective
intention to cause this mischief. Both persons are guilty of sedition.
India is bound by the International Covenant on Civil and Political Rights. This international treaty provides that
everyone shall have the right to freedom of expression. Again, this right is not absolute, and may be
restricted. International law sets out three requirements that need to be met for restrictions to be permissible:
(a) they must be provided for by law; (b) they must be necessary; and (c) they must protect respect of the rights
or reputations of others, be it for the protection of national security or of public order, or of public health or
morals. The United Nations Special Rapporteur in his 2010 annual report commented on the frequent
phenomenon of nations using laws as political tools; limiting freedom of expression arbitrarily in order to silence
dissent or criticism. The UN has developed guidelines to ensure that any restrictions conform to these three
criteria. India is one such State and the law of sedition in India falls foul of these requirements.
In the aforementioned second scenario, the crime of sedition is too vaguely defined to be comprehensible to
ordinary people. Seditious intention and tendency are entirely subjective terms. These vague provisions are
susceptible to wide interpretation by both the authorities and those subject to the law. If someone speaks at a
rally, and his words fail to excite any violence or disorder, the authorities still have a wide measure of discretion
in assessing whether his words had a seditious intention or tendency. Vague provisions also fail to provide
sufficient notice of exactly what conduct is prohibited. Clarity of Section 124A, therefore, is of particular
importance, given the potential penalty of life imprisonment. In instances where the conduct falls short of
actually causing violence or public disorder, sedition falls short of the international standard of legality. On the
other hand, where there is nothing vague, the requirements of actual violence and public disorder make what is
prohibited very clear. Here, 124A fails to meet the international law requirement of necessity.

Sedition is not necessary. All acts it seeks to punish are covered by other penal sections

Necessity entails that restrictions on freedom of expression are not overbroad and are proportionate. If a
restriction is necessary, it is entailed that but for the restriction, the undesirable social or criminal conduct
would not be prohibited. Hence, if a person causes violence and public disorder, he would simultaneously be
liable for offences under various other legislative provisions. Indias criminal law sufficiently covers the field
when an action creates violence or public disorder. The law already criminalises incitement to violence and
abetting an offence. Public mischief and waging war against the State are sufficiently provided for in the
penal code. Various offences under the Unlawful Activities (Prevention) Act and the Public Safety Act, in
addition to individual State security legislation, would sufficiently punish anyone who caused disorder or
violence. Therefore, sedition is not necessary, since all overt acts it seeks to punish are covered by other penal
sections anyway. Perhaps the biggest critique of Section 124A is that it represents a disproportionately serious
interference with democratic debate. Any benefit it may bring to protecting public order is outweighed by the
harm done to freedom of expression in its most important guise as an underpinning of democracy.
Similar arguments have led to the repeal of sedition laws in democracies around the world. In 2001, 2007 and
2009 Ghana, New Zealand and the UK respectively repealed their sedition laws. Reform commissions in
Australia, Canada and Ireland have recommended the abolition of existing sedition offences. They are
undesirable in light of their political nature and history, and inappropriate in modern liberal democracies, where
it is accepted that it is a fundamental right of citizens to criticise and challenge government structures and
processes. In 2010, the Ugandan Constitutional Court declared the offence of sedition unconstitutional.
Similarly, the Nigerian Federal Court has held sedition laws unconstitutional. A major factor in the
recommendations for repeal in these democratic countries was the strong association between sedition laws
and politically motivated prosecutions. In India, sedition has a similar association, it has long been used by
colonialists as a tool in the suppression of nationalism. The importance of freedom of expression has been
recognised the world over and in India in 2010, the Supreme Court expressed that change through free
speech is basic to our democracy, and to prevent change through criticism is to petrify the organs of democratic
government.

In 1962, the Supreme Court held that there was no doubt that Section 124A violated Article 19 (1)(a). However,
the court held that sedition, so newly defined, was a reasonable restriction as it protected the interests of public
order and State security. In keeping with the worldwide trend even the UK has repealed sedition laws the
time has come for reassessment.
THE ISSUE of vagueness did not come up in 1962. Furthermore, the idea of public order in 1962 reflected the
colonial mindset of suppressing the unruly natives, rather than the genuine protection of members of Indian
society. In contrast, the current view is best reflected by the 2007 dicta of the Delhi High Court expressed
In 2001, 2007 and 2009 Ghana, New Zealand and the UK repealed their sedition laws

recently that the criticism of the government is the hallmark of democracy... the essence of democracy is
criticism of the government. It is evident that in 1962, freedom of expression was seen as taking second place
when competing with interests of State security. The court had expressed: Freedom has to be guarded against
becoming a licence for vilification and condemnation of the government established by law, in words which
incite violence or have the tendency to create public disorder. This dicta reflects the judicial attitude that
freedom of expression was a second order when competing with matters of security of the State. Contrastingly,
in 1995 the Supreme Court expressed that the freedom of expression is a preferred right, which is always very
zealously guarded by the Supreme Court.
International guidelines on the limitation of freedom of expression make sedition an unreasonable restriction on
freedom of expression in 2011.
Margaret
Stride
is
margaret.globalspokes@gmail.com

New

Delhi-based

rights

activist

Charges of the criminal conspiracy can be nullified by using the material of the IPC
book

Legal provisions regarding prosecution for offences against the State under section
196 of the Code of Criminal Procedure, 1973.
Section 196(1) of the Code of Criminal Procedure provides that no Court shall take
cognizance of;
(a) Any offence punishable under Chapter VI or under Section 153-A, Section 295-A
or sub-section (1) of Section 505 of the Indian Penal Code, i.e., the offences against
the State (like waging war against the Government of India, sedition, etc.),
promoting enmity between different groups of people, imputations or assertions
prejudicial to national integration, deliberate acts outraging the religious feelings of
any class, statements conducive to public mischief, etc.;
(b) A criminal conspiracy to commit such offence; or
(c) Any such abetment, as is described in Section 108-A of the Indian Penal Code,

Except with the previous sanction of the Central Government or of the State
Government.
Section 196(1-A) of the Code of Criminal Procedure provides that no Court shall take
cognizance of,
(a) Any offence punishable under Section 153-B or sub-section (2) or sub-section (3)
of Section 505 of the Indian Penal Code; or
(b) A criminal conspiracy to commit such offence, except with the previous sanction
of the Central Government or of the State Government or of the District Magistrate.
The object of this provision is to prevent unauthorized persons from intruding the
matters of a State by instituting State prosecutions, and to secure that such
prosecution shall only be instituted under the authority of the Government.
The term Government means either the President or the Governor acting on the
advice of the Council of Ministers or on the advice of the individual Minister to whom
the department concerned has been allocated under the Rules of Business.
The sanction under sub-section (1) of Section 196 of the Code need not, in the case
of the State Government, be signed personally by the Governor. It is enough if it is
signed by one of his accredited and Gazetted officer.
Unless duly authorized in this behalf, a Secretary to the Government cannot take
the policy decision and accord the necessary comment under this Section on behalf
of the Government without reference to the Minister-in-Charge.
Section 196 of the Code does not control the powers of a Magistrate under the
Code, but only prevents a Court from taking cognizance of certain offences without
there being a complaint made by the Government. If sanction is not obtained, the
Magistrate cannot take cognizance of a private complaint under Section 295-A of
the Indian Penal Code.
Sanction to prosecute under Section 196 of the Code is a condition precedent for
taking cognizance of any such offence. Before according sanction, the concerned
Government may order a preliminary investigation by a police officer not being
below the rank of Inspector.
A criminal case was registered under Section 153-B of I.P.C., investigation of the
offence was done and the accused was arrested. Police submitted a report as a
result of such investigation before a Magistrate without obtaining previous sanction
of the Central Government or of State Government.
It was held that previous sanction is necessary only for taking cognizance by a
Court. Bar of sanction will not apply against registration of criminal case or
investigation by police agency. It was held that passing of order of remand the
accused to judicial custody in accordance with Section 167, Cr. PC. will not amount
to taking of cognizance.

Prosecution for the offence of criminal conspiracy:


Section 196(2) of the Code of Criminal Procedure provides that no Court shall take
cognizance of the offence of any criminal conspiracy punishable under Section 120B of the Indian Penal Code, other than a criminal conspiracy to commit an offence
punishable with death, imprisonment for life or rigorous imprisonment for a term of
two years or upwards, unless the State Government or the District Magistrate has
consented in writing to the initiation of the proceedings.
However, where the criminal conspiracy is one to which the provisions of Section
195 of the Code apply, no such consent shall be necessary because, in case of such
conspiracies the complaint of the concerned public servant or of the appropriate
Court will be necessary to initiate the proceedings.
Section 196(2) of the Code deals with the case of criminal conspiracy and not with
that of abetment of an offence or an attempt to commit that offence.
In case of conspiracies which are of pretty nature, private complaints should not be
freely allowed and prosecution should be instituted only when they are necessary in
the public interest.
Before giving consent for initiating criminal proceedings in respect of criminal
conspiracy under Section 196(2) of the Code, the State Government or the District
Magistrate may order a preliminary investigation by a police officer not being below
the rank of Inspector.
http://www.shareyouressays.com/119526/prosecution-for-offences-against-the-statesection-196-of-crpc

http://www.frontline.in/static/html/fl2006/stories/2003032800270410
0.htm
Under Section 196(1) of the Code of Criminal Procedure, (CrPC) no
court would take cognisance of an offence punishable under
Sections 153A and 505(1) of the IPC, except with the sanction of the
Central government or the State government. Section 196(1A) of the
CrPC makes it mandatory to obtain the sanction of the Central or the
State government or the District Magistrate to enable a court to take
cognisance of an offence punishable under Sections 153B and 505(2
and 3) of the IPC. Section 197 of the CrPC requires similar sanction
for any court to take cognisance of an offence allegedly committed
by a public servant, not removable from office except with the
sanction of the government, in the discharge of his or her official
duty.