Issue 1: Death Penalty

Ans.)

Issue 2 :

A) Section 421-A : Sedition

Meaning of Sedition:
The decision of the Supreme Court in Kedar Nath laid down the interpretation of the law of
sedition as it is understood today. In this decision, five appeals to the Apex Court were clubbed
together to decide the issue of the constitutionality of 124A of the IPC in light of Article 19(1)
(a) of the Constitution. In the Courts interpretation the incitement to violence was considered
an essential ingredient of the offence of sedition.1 Here, the court followed the interpretation
given by the Federal Court in Niharendu Majumdar. Thus, the crime of sedition was established
as a crime against public tranquillity2 as opposed to a political crime affecting the very basis of
the State.
The first recorded state trial for sedition is that of Queen Empress v. Jogendra Chunder Bose3
(Jogendra Bose). The Court, in its much debated judgment, laid down the distinction between
disaffection and disapprobation. Disaffection was defined as the use of spoken or written
words to create a disposition in the minds of those to whom the words were addressed, not to
obey the lawful authority of the government, or to resist that authority.4 It was also observed that:
It is sufficient for the purposes of the section that the words used are calculated to excite
feelings of ill-will against the Government, and to hold it up to the hatred and contempt of the
people, and that they were used with an intention to create such feeling.5
1 PSA Pill ai, Criminal Law 1131 (K.I. Vibhute eds., 2009).
2 Rex v. Aldred, (1909) 22 Cox CC 1.
3 Queen Empress v. Jogendra Chunder Bose, ILR (1892) 19 Cal 35.
4 Id., Arvind Ganachari, Combating Terror of Law in Colonial India: The Law of Sedition and the
Nationalist Response in Engaging Terror: A Critical And Interdiscipl inary Approach (2008)
5 Id., Janaki Bakhle, Savarkar (1983-1966), Sedition and Surveillance: the rule of law in a colonial
situation, February 12, 2010, available at http://www.scribd.com/doc/94493285/Bakhle- Sedition-andSavarkar (Last visited on July 25, 2016). (This expression is an example of how the law was a direct
import from the English case law of the time and is noteworthy insofar as it became the basis for the 1898
amendment to the legislation. Eventually, the accused himself tendered an apology and all proceedings
against him were dropped).

The Supreme Court in Kedar Naths case, wherein SINHA, C.J. observed comments, however
strongly worded expressing, disapprobation of actions of Govt., without exciting those feelings
which generate the inclination to cause public disorder by acts of violence, would not be penal.
In other words, disloyalty to Govt. established by law is not the same thing as commenting in
strong terms upon the measures or acts of Govt. or its agencies, so as to ameliorate the condition
of the people or to secure the cancellation or alteration of those acts or measures by lawful
means, that is to say, without exciting those feelings of enmity or disloyalty which imply
excitement to public disorder or the use of violence. In this very case it was further held that
viewed in the context of antecedent history of the legislation, its purpose and the mischief it
seeks to suppress the provisions of S. 124-A and S. 505 of the Indian Penal Code should be
limited in their application to acts involving intention or tendency to create disorder or
disturbance of law and order or incitement to violence. In order to sustain a conviction under
section 124-A, it must be proved (a) that the accused spoke the words in question, (b) that he
thereby brought or attempted to bring into hatred or contempt or excites or attempts to excite
disaffection, and (c) that such disaffection was towards the Govt. established by law in India.
Another significant case which had a direct bearing on the 1898 amendment was that of Queen
Empress v. Bal Gangadhar Tilak6 (Tilak). Allegations of sedition against Bal Gangadhar Tilak
were first forwarded when the magazine Kesari published detailed reports of the proceedings
that had taken place at the Shivaji Coronation Festival, during the celebration of which several
patriotic lectures and speeches were delivered. It was alleged that these speeches made
references to Shivajis call for Swarajya (independence) and alluded to the trials of the people
under the British rule.7 Although the Coronation Ceremony in itself was peaceful, the weeks
following the publication of the report on June 15, 1897, saw the murder of two eminent British
officials.8 In perhaps one of the most comprehensive expositions of the law in colonial India, the
Court, transcending the arguments from both sides, interpreted 124A mainly as exciting
feelings of disaffection towards the government, which covered within its ambit sentiments
such as hatred, enmity, dislike, hostility, contempt, and all forms of ill-will. It expanded the scope
of the offence by holding that it was not the gravity of the action or the intensity of disaffection,
but the presence of feelings that was paramount9 and mere attempt to excite such feelings was
sufficient to constitute an offence.10 The meaning of disaffection and disapprobation was
6 Queen Empress v. Bal Gangadhar Tilak, ILR (1898) 22 Bom 112.
7 Siddharth Narrain, Disaffection and the Law: The Chilling Effect of Sedition Laws in India, XLVI (8)
EPW 34 (2011)
8 Arvind Ganachari, Combating Terror of Law in Colonial India: The Law of Sedition and the Nationalist
Response in Engaging Terror: A Critical And Interdiscipl inary Approach (2008)
9 Janaki Bakhle, Savarkar (1983-1966), Sedition and Surveillance: the rule of law in a colonial situation, February
12, 2010, available at http://www.scribd.com/doc/94493285/Bakhle- Sedition-and-Savarkar (Last visited on June,
10, 2016).

10 Id.

further clarified by the court in Queen Empress v. Ramchandra Narayan11 in which accusations
against the editor and proprietor of the Pratod newspaper for publishing an article entitled
Preparation for Becoming Independent. The Court did not agree with the notion that
disaffection was necessarily the opposite of affection, but it advocated that an attempt to excite
disaffection amongst the masses was to be construed as an attempt to excite political discontent
and alienation from their allegiance to a foreign sovereign.12 In Queen Empress v. Amba
Prasad,13 the Court, however, held that even in cases of disapprobation of the measures of the
government, if it can be deduced from a fair and impartial consideration of what was spoken or
written, that the intention of the accused was to excite feelings of disaffection towards the
government and therefore it could be considered a seditious act.14 Thus disaffection would
include the absence or negation of affection as well as a positive feeling of aversion
towards the government.15
In Niharendu Dutt Majumdar v. King Emperor 16 (Niharendu Majumdar). Charges of sedition
had first been pressed against Majumdar on account of him allegedly delivering violent and
speeches in the Bengal legislative assembly highlighting the inefficiency of the State
Government to maintain law and order in the aftermath of the Dacca riots.17 Sir Maurice Gwyer,
Chief Justice of the Federal Court at the time, held that the mere presence of violent words does
not make a speech or publication seditious. Instead, he was of the belief that in order to be
brought under the ambit of sedition, the acts or words complained of must either incite to
disorder or must be such as to satisfy reasonable men that that is their intention or tendency.18
In a charge under section 124-A of the penal code, the prosecution must prove to the hilt that the
intention of the writer or the speaker, whoever he may be, is to bring into hatred or contempt or
excite or attempt to excite disaffection towards the Government established by law in British
India. The essence of the crime of sedition, therefore, consists in the intention with which the
language is used and what is rendered punishable by section 124-A of the penal code is the
intentional attempt, successful or otherwise, the rouse as against Government the feelings
enumerated in the section, a mere tendency in an Art. to promote such feelings is not sufficient to
11 Queen Empress v. Ramchandra Narayan, ILR (1898) 22 Bom 152.
12 Id., Ganachari, supra note 3
13 Queen Empress v. Amba Prasad, ILR (1898) 20 All 55.
14 Id.
15 Id.
16 Niharendu Dutt Majumdar v. King Emperor, AIR 1942 FC 22
17 Id.
18 Id.

justify a conviction; in other words, the prosecution must bring home to the accused that his
intention was as is described in the section itself. 19The essence of the offence of sedition under
section 124-A, I.P.C., is the intention with which the language of a speech is used and that
intention has to be judged primarily from the language itself. In forming an opinion as to the
character of speech charged as sedition, the speech must be looked at and taken as a whole,
freely and fairly, without giving undue weight to isolated passages and without pausing upon an
objectionable sentence here or a strong word there, and, in judging of the intention of the
speaker, each passage, should be considered in connection with the others and with the general
drift of the whole.20
2)
It is submitted that within 4 months of the Constitution of India coming into force, the newly
established Supreme Court of India ruled on the issue of sedition in two cases decided on the
same day. In the matter of Romesh Thappar, a Constitution Bench of the Apex Court held by a
majority of 4:1 that Section 9(1-A) of the Madras Maintenance of Public Order Act, 1949
violated the freedom of speech and expression guaranteed under Article 19(1)(a) of the
Constitution. The Apex Court also held in these cases that the offence of 'sedition' is an offence
against public tranquility and order also although Section 124A is to be found in the Chapter on
Offences against the State and sits in the category of other offences such as 'treason' and 'waging
war against the State'. In response to these two judgments the Central Government proceeded to
amend Article 19(2) to insert "public order, decency and morality" as grounds for restricting the
exercise of free speech and expression through the very first amendment to the Constitution. The
amendment which contained several other grounds for restricting free speech and expression was
made applicable retrospectively. 21
The offence of sedition under section 124A is the doing of certain acts which would bring the
Government established by law in India into hatred or contempt, or create disaffection against it.
22

As stated in KENNY- the Law of Sedition relates to the uttering of the seditious words, the
publication of seditious libels, and conspiracies to do an act for the furtherance of a seditious
intention. Sedition, whether by words spoken or written, or by conduct, is a misdemeanor at
common law punishable by fine and imprisonment. Sir JAMES STEPHEN defined a seditious
intention as an intention to bring into hatred or contempt, or to excite disaffection against, the
person of his Majesty, his heirs or successors, or the Government and the constitution of the
19 Satyaranjan Bakshi v. Emperor (AIR 1927 Cal 698)
20 Hanumanthaiya v. Govt of Mysore, (1948) 52 Mys HCR 265.
21 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

22 Bilal Ahmed Kaloo v. State of Andhra Pradesh, (1997).

United Kingdom by law established, or either House of Parliament, or the administration of

Justice or to excite his Majestys subjects to attempt otherwise than by lawful means, the
alteration of any matters in Church or State by law established..or to raise discontent or
disaffection amongst his Majestys subjects, or to promote feelings of ill will and Hostility
between different classes of such subjects. But an intention to show that his Majesty has been
mislead or mistaken in his measures to point out errors or defects in the government or
constitution, as by law established with a view to their reformation, or to excite his Majestys
subjects to attempt by lawful means the alteration of any matter in Church or State by law
established, or to point out, in order to their removal, matters which are producing, or have a
tendency to produce, feelings of hatred and ill will between classes of His Majestys subjects, is
not a seditious intention. It is the right of every citizen to discuss public affairs fully and freely
but such discussions must not be directed to the incitement of unlawful acts or calculated to
excite disaffection. In a twentieth century prosecution for sedition, the Judge told the jury that
they could take into account the State of Public feelings. HALSBURY lays down: the essence of
the offence of treason lies in the violation of the allegiance owed to the sovereign. Allegiance is
due from all British subjects wherever they may be local allegiance is owed by an alien under the
protection of the crown so long as he is resident within the realm and by a resident alien who
goes abroad leaving his family or effects within the realm or goes abroad in possession of a
British Passport. An ambassador who is not a subject of the State to which he is accredited does
not owe any temporary allegiance to that State.23
4) A speech suggesting generally that the Govt. established by law in India was thoroughly
dishonest and unfair and that steps should be taken either by violence or by threat of violence to
abolish it, comes within the provisions of section 124- A24.The gist of the offence under section
124-A lies in the intention of the writer to bring into hatred and contempt the Government and is
not to be gathered from isolated or stray passages here and there but from a fair and generous
reading of the article as a whole. Further, in gathering the intention allowance must be made for a
certain amount of latitude for writers in the public press 25. The Federal Court of India had,
however, held that the gist of the offence of sedition is incitement to violence; mere abusive
words are not enough.26. In cases under Section 124-A, I.P.C., the Courts have not to see the
effect on the mind of the people and they are concerned with the construction of the speech, and
the speech has to be taken as a whole and not just in pieces. A man may criticize or comment
upon any measure or act of the Govt. and freely express his opinion upon it. He may express
condemnation but so long as he confines himself to that he will be protected, but if he goes
beyond that he must pay the penalty for it. The question of intention is always an important
factor in such cases.27
23 http://www.rmlnlu.ac.in/webj/sedition.pdf; Ankur Gupta, B.A.LL.B (Hons.) III Year, Dr Ram
Manohar Lohiya National Law University, Lucknow; last visited on 25 July, 2016.
24 Paramanand v. Emperor, AIR 1941 All 156, 1941 All LJ 26, 42 Cr LJ 46
25 Ramchandra v. Emperor, 29 Cr LJ 381 (Lah)
26 Niharendra Dutt Majumdar, (1942) FCR 38

The Supreme Court in Kedar Nath clarified that the crime of sedition was a crime against the
State and was intended to protect the very existence of the State. The purpose of the crime of
sedition was to prevent the Government established by law from being subverted because the
continued existence of the Government established by law is an essential condition of the
stability of the State. It clarified that commenting in strong terms upon the measures or acts of
Government, or its agencies, so as to ameliorate the condition of the people or to secure the
cancellation or alteration of those acts or measures by lawful means, that is to say, without
exciting those feelings of enmity and disloyalty which imply excitement to public disorder or the
use of violence is not sedition. The Supreme Court clarified that a citizen has a right to say or
write whatever he likes about the Government, or its measures, by way of criticism or comment,
so long as he does not incite people to violence against the Government established by law or
with the intention of creating public disorder. As a result, the Supreme Court expressly sided
with the interpretation of sedition by the Federal Court in Niharendu Dutt and stressed that
incitement to violence or the tendency or the intention to create public disorder was also an
essential ingredient of the offence of sedition. The Supreme Court expressly rejected a literal
interpretation of Section 124A. It also expressly rejected the Privy Council interpretation which
did not require the prosecution to establish incitement to violence or the tendency or the
intention to create public disorder as an essential ingredient of the offence of sedition. The
Supreme Court justified this stand by pointing out that the crime of sedition was a crime against
the security of the State, which depends upon the maintenance of law and order and that acts
(spoken words) which did not have the tendency to disorder or intention to create disturbance of
law and order would not amount to sedition even if such acts/ words create disaffection or
feelings of enmity against the Government. In order to leave no doubt as to its ruling, the
Supreme Court further stated that section 124A hits only those activities as would be intended,
or have a tendency, to create disorder or disturbance of public peace by resort to violence. The
Kedar Nath ruling later refers to this as acts involving intention or tendency to create disorder,
or disturbance of law and order, or incitement to violence. 28
The Apex Court in the case of NAZIR KHAN AND OTHERS V/S. STATE OF DELHI 29 has
held as under:
Section 124-A deals with 'Sedition'. Sedition is a crime against society nearly allied to that of
treason, and it frequently precedes treason by a short interval. Sedition in itself is a
comprehensive term, and it embraces all those practices, whether by word, deed, or writing,
which are calculated to disturb the tranquillity of the State, and lead ignorant persons to
27 Vishambhar Dayal v. Emperor; AIR 1941 Oudh 33
28
http://www.legallyindia.com/blogs/a-closer-reading-of-the-supreme-court-of-indiadecision-in-kedar-nath-singh-vs-state-of-bihar-1962-on-the-offence-of-sedition-defined-insection-124a-ipc; last visited on July 25, 2016

29 (2003)8 SCC 461 at para 37

endeavour to subvert the Government and laws of the country. The objects of sedition generally
are to induce discontent and insurrection, and stir up opposition to the Government, and bring the
administration of justice into contempt; and the very tendency of sedition is to incite the people
to insurrection and rebellion. "Sedition has been described as disloyalty in action, and the law
considers as sedition all those practices which have for their object to excite discontent or
dissatisfaction, to create public disturbance, or to lead to civil war; to bring into hatred or
contempt the Sovereign or the Government, the laws or constitutions of the realm, and generally
all endeavors to promote public disorder.
The offence of sedition is, of course, a legacy of the colonial era. But so is the entire Indian Penal
Code. And that by itself cannot be a relevant factor to decide if it should be retained. The section
finds place in Chapter VI of the code, which deals with Offences against the State. The other
significant offences under that chapter include waging, or attempting to wage war or abetting
waging of war against the Government of India (Section 121), collecting arms, etc. with
intention of waging war against the Government of India (Section 122), concealing with
intention to facilitate design to wage war (Section 123), assaulting the President, Governor, etc.
with intent to compel or restrain the exercise of any lawful power (Section 124), and facilitating
escape of prisoners of State or war (Sections 128-130).30
Section 124A is the only section in the chapter whose primary focus is on speech. It is keeping
this aspect in mind that the Supreme Court read down this provision in 1962 in Kedar Naths
case to read it in a manner consistent with the provisions of the Constitution which guarantee
freedom of speech. That freedom is subject to reasonable restrictions under Article 19(2). But
those restrictions can only be in the interests of sovereignty and the integrity of India, the
security of the State, friendly relations with foreign States, public order, decency or morality or
in relation to contempt of court, defamation or incitement to an offence. Since sedition was not
a ground on which freedom of speech could be restricted, the offence of sedition itself had to be
revisited in the light of the permissible restrictions under Article 19(2). And so, the Supreme
Court said in Kedar Naths case that mere speech would not be sedition if Section 124A was to
be sustained. There has to be an element of incitement to violence. If that was established, it
would lead to public disorder and would therefore not enjoy constitutional protection.31

The continued existence of the government established by law is an essential condition of the
stability of the state. Hence, any act within the meaning of section 124-A, which has the effect of
subverting the Government by bringing that Government into contempt or hatred, or creating
disaffection against it, would be within the penal statute because the feeling of disloyalty to the
Government established by law or enmity to it imports the idea of tendency to public disorder by
the use of actual violence or incitement to violence. In other words, any written or spoken words,
etc., which have implicit in them the idea of subverting Government by violent means, which are
30 http://www.tribuneindia.com/news/comment/the-ball-is-in-the-court/199764.html; last visited on 21st
July, 2016.
31 Id.

compendiously included in the term revolution, have been made penal by the section in
question. But the section has taken care to indicate clearly that strong words under lawful means
used to express disapprobation of the measures of the Government with the view to their
improvement or alteration would not come within the section. Similarly, comments, however,
strongly worded, expressing disapprobation of actions of the Government, without exciting those
feelings which generate the inclination to cause public disorder by acts of violence, would not be
penal. In other words, disloyalty to Government established by law is not the same thing as
commenting in strong terms upon the measures or acts of Government, or its agencies, so as to
ameliorate the condition of the people or to secure the cancellation or alteration of the those acts
or measure by lawful means that is to say, without exciting those feelings of enmity and
disloyalty which imply excitation to public disorder or the use of violence. This section requires
two essentials:- 1. Bringing or attempting to bring into hatred or contempt or exciting or
attempting to excite disaffection towards, the Government of India. 2. Such act or attempt may
be done (i) by words, either spoken or written, or (ii) by signs, (iii) by visible representation.32

Constitutionality of the Section 124-A:

9) The Court looked at the pre-legislative history and the opposition in the Constituent Assembly
debates around Article 19 of the Constitution. The new constitution of India envisaged a
parliamentary system of government. Criticism of the government by members of the opposition,
public and the press was to be an important part of the system 33. In such a situation it was felt to
be appropriate that sedition be left out of Article 19(2), which laid down the restrictions on the
right to freedom and expression guaranteed in Article 19(1)(a). However, this did not mean that
seditious speech was within the ambit of the free speech right. Due to the ambiguity in the
meaning of sedition in the Code, the word itself was omitted from the draft articles. Instead,
certain terms such as security of the state, public order, and incitement to offence were used
to cover the same subject matter without the actual use of the word sedition.34
Here, it noted that sedition had specifically been excluded as a valid ground to limit the freedom
of speech and expression even though it was included in the draft Constitution. 35 This was
32 http://www.rmlnlu.ac.in/webj/sedition.pdf; Ankur Gupta, B.A.LL.B (Hons.) III Year, Dr Ram
Manohar Lohiya National Law University, Lucknow; last visited on 25 July, 2016.
33 AIR 1942 FC 22
34 http://legalsutra.com/1025/sedition/; last visited on 30 July, 2016.
35 74 Kedar Nath v. State of Bihar, AIR 1962 SC 955, 30; See also Romesh Thappar v. Madras, AIR1950 SC 124
(per Sastri, J.: Deletion of the word sedition from draft Art. 13(2), therefore, shows that criticism of Government
exciting disaffection or bad feelings towards it is not to be regarded as a justifying ground for restricting the freedom
of expression and of the press, unless it is such as to undermine the security or tend to overthrow the State. Further,
the court also observed that the Irish formula of undermining the public order or the authority of the State as a
standard to impose limits on the freedom of speech and expression had not found favour with the drafters of the
Constitution).

indicative of a legislative intent that sedition not be considered a valid exception to this
freedom.36As a consequence, sedition could only fall within the purview of constitutional validity
if it could be read into any of the six grounds listed in Article 19(2) of the Constitution. 37 Out of
the six grounds in Article 19(2), the Court considered the security of the state as a possible
ground to support the constitutionality of 124A of the IPC. 38 The Court made use of the
principle that when more than one interpretation may be given to a legal provision, it must
uphold that interpretation which makes the provision constitutional. 39 Any interpretation that
makes a provision ultra vires the Constitution must be rejected. Thus, even though a plain
reading of the section does not suggest such a requirement, it was held to be mandatory that any
seditious act must be accompanied by an attempt to incite violence and disorder.40The reasoning
of the Court was that since sedition laws would be used to maintain public order, and the
maintenance of public order would in turn be in the interests of the security of the state, these
laws could be justified in the interests of the latter. 41The possession and enjoyment of all rights
subject to reasonable restriction as may be deemed to be essential on certain grounds is the true
essence of a democracy. The Constitution therefore attempts to strike a balance between
individual rights and social control. Article 19 of the Constitution gives various individual
liberties to the individuals and places restraints upon them in various clauses by law so that they
do not interfere with the public welfare and general morality.42 It is humbly submitted that where
there arises a need to maintain and preserve freedom of speech and expression, there also arises
a responsibility on the part of the state to place some curbs on the freedom for the maintenance
of social order.
n the case of Ram Nandan v. State of U.P.43 The Honble High Court held that section 124-A
imposed restriction on the freedom of speech which is not in the interest of the general public
and hence declared 124-A as ultra vires. But this decision of the Honble High Court was
overruled by the Honble Supreme Courtin the case of Kedarnath Das v. State of Bihar 44 and
held Section 124-A, intra vires.

36 Kedar Nath v. Union of India, AIR 1962 SC 955, 29.

37 Id., 38.
38 Id.
39 Id., 39 (citing R.M.D. Chamarbaugwalla v. Union of India, AIR 1957 SC 628).
40 Id.
41 Id., 31.
42 51 Gopalan v. State of Madras, (1950) S.C.R. 88 (253-4)
43 AIR 1959 Alld. 101

The constitutional 1st (Amendment) Act, 1951 added in Art 19 (2) two words of widest import,
wiz., in the interest of public order. Thereby including the legislative restrictions on freedom
of speech and expression. The advocates of the other view held that section 124-A, of I.P.C is
constitutional and is not in contravention of Art 19(1) (a) as it is saved by the expression in the
interest of public order in Art 19(2). It has been stated that the expression in the interest of
public order is of wider connotation, and includes not only the Acts which are likely to disturb
public order but something more than that. In accordance with this interpretation, section 124-A,
I.P.C. has been held intra vires of the constitution. This view found blessings from the Supreme
Court in the case of Kedarnath v. State of Bihar (supra) wherein it was held that any law which is
enacted in the interest of public order may be saved from the voice of constitutional invalidity.45
The court had further observed in the Kedar Naths case that the right guaranteed under Art 19(1)
(a) is subject to such reasonable restriction as would come within the purview of clause (2), to
Art 19 which comprises (a) security of the State, (b) friendly relations with foreign states, (c)
public order, (d) decency or morality, etc. with reference to the constitutionality of section 124A, of the I.P.C, as to how far they are consistent with the requirements of clause (2) of Art 19
with particular reference to security of state and public order, the section, it must be noted
penalizes any spoken or written words or science or visible representations, etc, which have the
effect of bringing, or which attempt to bring into hatred or contempt or excite or attempt to excite
disaffection towards the government established by law has to be distinguished from the
persons for the time being engaged in carrying on the administration. Government established
by law is the visible symbol of the state would be in jeopardy, where the government
established by law is subverted.46
A statute cannot be struck down merely because the court thinks it to be arbitrary or
unreasonable. Any such ground of invalidity must be strongly related to a Constitutional
provision. In the case of Mylapore Club v. State of Tamil Nadu 47 the Court held that challenge on
the grounds of wisdom of legislation is not permissible as it is for the legislature to balance
various interests. The legislature appreciates and understands the needs of the people, that it
knows what is good or bad for them, that the laws it enacts are directed to problems which are
manifest by experience that the elected representatives in a legislature enact laws which they
consider to be reasonable for the purposes for which these laws are enacted and that a legislature
would not deliberately flout a constitutional safeguard or right.48
44 AIR 1962 SC 955
45 http://www.rmlnlu.ac.in/webj/sedition.pdf; Ankur Gupta, B.A.LL.B (Hons.) III Year, Dr Ram
Manohar Lohiya National Law University, Lucknow; last visited on 25 July, 2016.
46 Id.
47 Mylapore Club v. State of Tamil Nadu, (2005) 12 S.C.C. 752.
48 Bachan Singh v. State of Punjab, A.I.R. 1982 S.C. 1325.

The power to legislate is a plenary power vested in the legislature and unless those who
challenge the legislation clearly establish that their fundamental rights under the Constitution are
affected or that the legislature lacked legislative competence, they do not succeed in their
challenge to the enactment brought forward in the wisdom of legislature. A statute carries with
itself a presumption of constitutionality. A further presumption may also be drawn that the
statutory authority would not exercise the power arbitrarily. In the case of State of Andhra v.
McDowell & Co.,49 the Court held that a Court cannot sit in judgment over the wisdom of the
Legislature. Therefore usually the presumption is in the favor of the Constitutionality of the
statute and the onus to prove that it is unconstitutional lies upon the person challenging it.50
The court held in the case of Santosh Singh v. Delhi Administration51, it was held that the test of
reasonableness of restriction has to be considered in each case in the light of the nature of right
infringed, the purpose of the restriction, the extent and the nature of the mischief required to be
suppressed and the prevailing social order and conditions at the time. There can be no abstract
standard of reasonableness and our constitution provides reasonably precise general guidance in
this matter. As it is stated earlier, individual rights in a welfare state cannot be absolute. When a
law is impugned as having imposed a restriction upon a Fundamental Right, what the Court has
to examine is the substance of the legislation without being beguiled by the mere appearance of
the legislation.52 If the legislation indirectly or incidentally affects a citizens right under Article
19(1) it will not introduce any infirmity to the validity of the legislation.53
Individual rights cannot be absolute in a welfare state. It has to be subservient to the Rights of
the public at large.54 The right of life and liberty so guaranteed under Article 21 is also subject to
the rule of proportionality.55 Liberty is the right of doing an act which the law permits.56 Liberty
is confined and controlled by law as it is regulated freedom. It is not an abstract or absolute
freedom. The safeguard of liberty is in the good sense of the people and in the system of
49 State of Andhra v. McDowell & Co., A.I.R. 1996 S.C. 1628.
50 Charanjit Lal Chowdhary v. Union of India, A.I.R. 1951 S.C. 41.
51 Santosh Singh v. Delhi Administration, A.I.R. 1973 S.C. 1091.
52 Express Newspapers v. Union of India, A.I.R. 1958 S.C. 578; Bennett Coleman & Co. Ltd. v. Union of
India,A.I.R. 1973 S.C. 106.

53 Hamdard Dawakhana v. Union of India, A.I.R. 1960 S.C. 554.

54 Confederation of Ex-serviceman Association v. Union of India, (2006) 8 S.C.C. 399.
55 Om Kumar v. Union of India, (2001) 2 S.C.C. 386.
56 Kartar Singh v. State of Punjab, (1994) 3 S.C.C. 569.

representative and responsible Government which has been evolved. Liberty is itself the gift of
law and may bye law be forfeited or abridged.57
The limitation imposed in the interest of public order to be a reasonable restriction, should be
one which has a proximate connection and a reasonable connection. 58 It must be rationally
proximate and direct to be called reasonable once the connection between the restrictive
legislation and the permissible ground is rational, the Legislature has the discretion as to the
expediency of the stage at which the restriction is to be applied. Thus, it is not prevented from
providing against threatened or apprehended injury as distinguished from actual injury.59
Under Article 19(2), a restriction can be imposed in the interests of public order, etc. The
expression in the interests of gives a greater leeway to the legislature to curtail freedom of
speech and expression, for a law penalising activities having a tendency to cause, and not
actually causing public disorder, may be valid as being in the interests of public order.
However, the restrictions imposed must have a reasonable and rational relation with the public
order, security of state, etc.The word reasonable implies intelligent care and deliberation, that
is, the choice of a course which reason directs. 60 The lists of reasonableness have to be viewed in
context of the issues which faced the Legislature. In the construction of such laws and in judging
their validity, Courts must approach the problem from the point of view of furthering the social
interest which is the purpose of the Legislation to promote.61
It is, therefore, humbly submitted that Section 124- A has a direct and proximate nexus to its
object i.e. maintenance of public order. It is a regulatory measure which, inter-alia provides
against threatened or apprehended injury. It has a direct nexus to preservation of public
tranquillity, as it can be used to prevent electronic communication from inflaming the public or a
group of people, thus destroying or hampering public order, via designs such as mass hatemessages, criminal intimidation etc. Therefore, even if it operates harshly in isolated cases, its
ultimate object is the maintenance of public order and safety, to which it has a direct and
proximate nexus.
The question whether the provisions of the Act provide reasonable safeguards against the abuse
of the power given to the executive authority to administer the law is not relevant for the true
interpretation of the clause.62 Where the vesting of discretionary power by the Legislature is
justified, the mere possibility of abuse of power by the Executive is no test for determining the
57 A.D.M. Jabalpur v. Shivkant Shukla, A.I.R. 1976 S.C. 1207.
58 Arunachala Nadar, M.C.V.S. v. State of Madras, A.I.R. 1959 S.C. 300 (303).
59 Virendra v. State of Punjab, A.I.R. 1957 S.C. 896.
60 Janath Mosque v. Vakhon Joseph, A.I.R. 1955 T.C. 227 (F.B.).
61 Municipal Corporation, City of Ahmedabad v. Jan Mohd. Usmanbhai, A.I.R. 1986 S.C. 1205.
62 Arunachala v. State of Madras, A.I.R. 1959 S.C. 300 (303).

reasonableness of the restriction imposed by the law.63 If, however, the statutory power or
discretion is shown to have been abused by the authorities, the person aggrieved shall have his
remedy against the illegal order 64, but that would be no ground for invalidating the Statute
itself.65 In Municipal Committee v. State of Punjab, it was held that a law cannot be struck down
as in violation of a Fundamental Right merely on the ground that it is vague.66
Accountability for damage to Public Property
The Supreme Court of India in a recent case of the Hardik Patel, expressed its concern over
damage to public and private properties during violent protests and said it would lay down
parameters to fix accountability for losses on organizers as the country cannot be held to
ransom.An apex court bench headed by Justice J S Khehar said, The country must know what
are the consequences. No one can take the country to ransom during agitations. Whether it is the
BJP, the Congress or any other organisation, they must realise that they can be held accountable
for the damages to public property. The benchs remarks assumes significance in the wake of
large-scale violence and loss of public and private properties in Haryana during the Jat quota stir.
Where is our country going? You just cannot burn the countrys or its citizens properties.
Whether its BJP or Congress or whichever organisation or party it is, it may be asked to pay for
the property damaged. They will collect the money and pay for the damages, the bench said
adding, We must take a call on the issue and we would frame guidelines for taking action
against people indulging in such acts.The bench said it will lay down parameters for fixing the
accountabilities for the damage caused to the public and private properties during agitations. The
court said that it has decided to look into the larger issue of damage to public and private
property.67
Criminal Conspiracy
1) From fact sheet criminal conspiracy can be observed in two key points.
A) On page 3 the para of The rally was attended by 30000 people, shows that the members of
the Hogwarts party mobilized the public to protest.
B) page 2. A supporter of the remark. It shows the speech on the supporters part. Criminal
Conspiracy.
Meaning of Criminal Conspiracy
63 Khare v. State of Delhi, A.I.R. 1950 S.C. 211.
64 Virendra v. State of Punjab, A.I.R. 1957 S.C. 896.
65 Harishankar Bagla v. State of Madhya Pradesh, A.I.R. 1954 S.C. 465.
66 Municipal Committee v. State of Punjab, (1969) 1 S.C.C. 475.
67
http://www.newindianexpress.com/nation/Those-Who-Burn-Public-Property-Will-PaySC/2016/02/25/article3295455.ece; last visited on July 25, 2016 .

In HALSBURY'S LAWS of England 68, the ENGLISH LAW as to conspiracy has been stated
thus:
Conspiracy consists in the agreement of two or more persons to do an unlawful act, or to do a
lawful act by unlawful means. It is an indictable offence at common law, the punishment for
which is imprisonment or fine or both in the discretion of the Court.
The essence of the offence of conspiracy is the fact of combination by agreement. The agreement
may be express or implied, or in part express and in part implied. The conspiracy arises and the
offence is committed as soon as the agreement is made; and the offence continues to be
committed so long as the combination persists, that is until the conspiratorial agreement is
terminated by completion of its performance or by abandonment or frustration or however, it
may be. The actus reus in a conspiracy is the agreement to execute the illegal conduct, not the
execution of it. It is not enough that two or more persons pursued the same unlawful object at the
same time or in the same place; it is necessary to show a meeting of minds, a consensus to effect
an unlawful purpose. It is not, however, necessary that each conspirator should have been in
communication with every other.
The ENGLISH LAW on this matter is well settled. RUSSELL69 on crime may be usefully noted:
The gist of the offence of conspiracy then lies, not in doing the act, or effecting the purpose for
which the conspiracy is formed, nor in attempting to do them, nor in inciting others to do them,
but in the forming of the scheme or agreement between the parties, agreement is essential. Mere
knowledge, or even discussion, of the plan is not, per se, enough."
DR. SHRI HARI SINGH GOUR in his well known 'COMMENTARY ON PENAL LAW OF
INDIA'70, summed up the legal position in the following words:
"In order to constitute a single general conspiracy there must be a common design. Each
conspirator plays his separate part in one integrated and united effort to achieve the common
purpose. Each one is aware that he has a part to play in a general conspiracy though he may not
know all its secrets or the means by which the common purpose is to be accomplished. The evil
scheme may be promoted by a few, some may drop out and some may join at a later stage, but
the conspiracy continues until it is broken up. The conspiracy may develop in successive stages.
There may be general plan to accomplish the common design by such means as may from time
to time be found expedient."
The Apex Court of India in E.G. BARSAY V. STATE OF BOMBAY71 , held as under:
68 4th Edn. Vol.11, page 44, page 58
69 COMMENTARY ON PENAL LAW OF INDIA , 12 Ed.Vol.I, p.202
70 Vol.2, 11th edn., p.1138

"The gist of the offence is an agreement to break the law. The parties to such an agreement will
be guilty of criminal conspiracy, though the illegal act agreed to be done has not been done. So
too, it is an ingredient of the offence that all the parties should agree to do a single illegal act. It
may comprise the commission of a number of acts. Under Section 43 of the Indian Penal Code,
an act would be illegal if it is an offence or if it is prohibited by law."
The Supreme Court in the case of YASH PAL MITTAL V. STATE OF PUNJAB 72 laid as follows
at page 543, para 9.
"The very agreement, concert or league is the ingredient of the offence. It is not necessary that all
the conspirators must know each and every detail of the conspiracy as long as they are coparticipators in the main object of the conspiracy. There may be so many devices and techniques
adopted to achieve the common goal of the conspiracy and there may be division of
performances in the chain of actions with one object to achieve the real end of which every
collaborator must be aware and in which each one of them must be interested. There must be
unity of object or purpose but there may be plurality of means sometimes even unknown to one
another, amongst the conspirators. In achieving the goal several offences may be committed by
some of the conspirators even unknown to the others. The only relevant factor is that all means
adopted and illegal acts done must be and purported to be in furtherance of the object of the
conspiracy even though there may be sometimes misfire or overshooting by some of the
conspirators."
The Apex Court in the case of MOHD. USMAN MOHAMMAD HUSSAIN MANIYAR AND
ORS. V. STATE OF MAHARASHTRA73 , held that for an offence under Section 120B IPC, the
prosecution need not necessarily prove that the conspirators expressly agreed to do or cause to be
done the illegal act, the agreement may be proved by necessary implication.

EVIDENCE OF CONSPIRACY:
There is no difference between the mode of proof of the offence of conspiracy and that of any
other offence; it can be established by direct or circumstantial evidence. Privacy and secrecy are
pre-dominant characteristics of a conspiracy rather than a loud discussion in an elevated place
open to public view. Generally, a conspiracy is hatched in secrecy and it may be difficult to
adduce direct evidence of the same. Direct evidence in proof of a conspiracy is seldom available.
It is not always possible to give affirmative evidence about the date of the formation of the
criminal conspiracy, about the persons who took part in the formation of the conspiracy, about
71 (1977) 4 SCC 540
72 AIR 1961 SC 1762
73 (1981) 2 SCC 443

the object which the objectors set before themselves as the object of conspiracy, and about the
manner in which the object of conspiracy is to be carried out. All this is necessarily a matter of
inference. The prosecution will often rely on evidence of acts of various parties to infer that they
were done in consequence of their common intention. The prosecution will also more often rely
upon circumstantial evidence. The conspiracy can be undoubtedly proved by such evidence
direct or circumstantial. But the Court must enquire whether the two persons are independently
pursuing the same end or they have come together to the pursuit of the unlawful object. The
former does not render them conspirators, but the latter does. It is however, essential that the
offence of conspiracy requires some kind of physical manifestation of agreement. The express
agreement, however, need not be proved. Nor actual meeting of two persons is necessary. Nor it
is necessary to prove the actual words of communication. The evidence as to transmission of
thoughts sharing the unlawful design may be sufficient under given set of circumstances of an
individual case.74
In order to prove a criminal conspiracy which is punishable under Section 120-B there must be
direct or circumstantial evidence to show that there was an agreement between two or more
persons to commit an offence. It is to be proved largely on the inferences drawn from illegal act
or omissions committed by the conspirators in pursuance of common design- which has been
properly proved. Conspiracy may be proved by necessary implication. The direct evidence will
be seldom forthcoming and it is, therefore, necessary to look at the circumstances to see whether
a conspiracy actually existed which is largely inferential. Of sheer necessity this section has to be
read in conjunction with Section 10 of the Indian Evidence Act. Section 10 of the Evidence Act
introduces the doctrine of agency and if the conditions laid down therein are satisfied, the act
done by one is admissible against the co- conspirators. But this section will come into play only
when the Court is satisfied that there is reasonable ground to believe that two or more persons
have conspired together to commit an offence or an actionable wrong, that is to say, there should
be a prima facie evidence that a person was a party to the conspiracy before his acts can be used
against his co-conspirators. Once such a reasonable ground exists, anything said, done or written
by one of the conspirators in reference to the common intention, after the said intention was
entertained is relevant against the others not only for the purpose of proving the existence of the
conspiracy but also for proving that the other person was a party to it.75
In KEHAR SINGH AND ORS. V. THE STATE (DELHI ADMINISTRATION) 76, the Apex Court
observed as under:
Generally, a conspiracy is hatched in secrecy and it may be difficult to adduce direct evidence
of the same. The prosecution will often rely on evidence of acts of various parties to infer that
they were done in reference to their common intention. The prosecution will also more often rely
74 High Court Of Karnataka vs Syed Mohammed Ibrahim on 17 December, 2014 CRIMINAL RC NO.3
OF 2008
75 Id.
76 AIR 1988 SC 1883 AT P. 1954

upon circumstantial evidence. The conspiracy can be undoubtedly proved by such evidence
direct or circumstantial. But the court must enquire whether the two persons are independently
pursuing the same end or they have come together in the pursuit of the unlawful object. The
former does not render them conspirators, but the latter does. It is, however, essential that the
offence of conspiracy required some kind of physical manifestation of agreement. The express
agreement, however, need not be proved. Nor actual meeting of the two persons is necessary.
Nor it is necessary to prove the actual words of communication. The evidence as to transmission
of thoughts sharing the unlawful design may be sufficient."
The Apex Court, in the case of 'NAZIR KHAN & ORS. v. STATE OF DELHI' 77 has held as
under:
"No doubt, in the case of conspiracy there cannot be any direct evidence. The ingredients of
offence are that there should be an agreement between persons who are alleged to conspire and
the said agreement should be for doing an illegal act or for doing by illegal means an act which
itself may not be illegal. Therefore, the essence of criminal conspiracy is an agreement to do an
illegal act and such an agreement can be proved either by direct evidence or by circumstantial
evidence or by both, and it is a matter of common experience that direct evidence to prove
conspiracy is rarely available. Therefore, the circumstances proved before, during and after the
occurrence have to be considered to decide about the complicity of the accused.
The essential ingredient of the offence of criminal conspiracy is the agreement to commit an
offence. In a case where the agreement is for accomplishment of an act which by itself
constitutes an offence, then in that event no overt act is necessary to be proved by the
prosecution because in such a situation, criminal conspiracy is established by proving such an
agreement. Where the conspiracy alleged is with regard to commission of a serious crime of the
nature contemplated in Section 120B read with the proviso to sub-section (2) of Section 120A,
then in that event mere proof of an agreement between the accused for commission of such a
crime alone is enough to bring about a conviction under Section 120B and the proof of any overt
act by the accused or by any one of them would not be necessary. The provisions, in such a
situation, do not require that each and every person who is a party to the conspiracy must do
some overt act towards the fulfillment of the object of conspiracy. The essential ingredient being
an agreement between the conspirators to commit the crime and if these requirements and
ingredients are established, the act would fall within the trappings of the provisions contained in
Section 120B. Conspiracies are not hatched in the open, by their nature, they are secretly
planned, they can be proved even by circumstantial evidence, the lack of direct evidence relating
to conspiracy has no consequence. WAGING WAR (Section 121 IPC)78

77 2003 SCC (Crl) 2033

78 Supra note 69.

The Apex Court in the case of 'DEVENDER PAL SINGH v. STATE OF NCT OF DELHI' 79 has
held as under:
The elements of a criminal conspiracy have been stated to be: (a) an object to be accomplished,
(b) a plan or scheme embodying means to accomplish that object,
(c) an agreement or understanding between two or more of the accused persons whereby they
become definitely committed to cooperate for the accomplishment of the object by the means
embodied in the agreement, or by any effectual means, (d) in the jurisdiction where the statute
required an overt act. The essence of a criminal conspiracy is the unlawful combination and
ordinarily the offence is complete when the combination is framed. From this it necessarily
follows that unless the statute so requires, no overt act need be done in furtherance of the
conspiracy, and that the object of the combination need not be accomplished, in order to
constitute an indictable offence. Law making conspiracy a crime is designated to curb
immoderate power to do mischief which is gained by a combination of the means. The
encouragement and support which co-conspirators give to one another rendering enterprises
possible which, if left to individual effort, would have been impossible, furnish the ground for
visiting conspirators and abettors with condign punishment. The conspiracy is held to be
continued and renewed as to all its members wherever and whenever (See American
Jurisprudence, Vol.II, Section 23, p.559) For an offence punishable under Section 120-B, the
prosecution need not necessarily prove that the perpetrators expressly agree to do or cause to be
done an illegal act; the agreement may be proved by necessary implication. Offence of criminal
conspiracy has its foundation in an agreement to commit an offence. A conspiracy consists not
merely in the intention of two or more, but in the agreement of two or more to do an unlawful act
by unlawful means. So long as such a design rests in intention only, it is not indictable. When
two agree to carry it into effect, the very plot is an act in itself, and an act of each of the parties,
promise against promise, actus contra actum, capable of being enforced, if lawful, punishable if
for a criminal object or for use of criminal means.
The offence of criminal conspiracy under Section 120-A is a distinct offence. The conspiracy to
commit a crime and the crime itself are two different offences. Conspiracy precedes the
commission of crime and is complete before the crime is attempted or completed. The very
agreement, concert or league is the ingredient of the offence. The offence of criminal conspiracy
is complete as soon as two or more persons agree to do or cause to be done an illegal act, or an
act which is not illegal by illegal means. It is immaterial whether the illegal act is the ultimate
object of such an agreement or is merely, incidental to that object. The agreement in itself is
enough to constitute the offence.80
Section 196 Cr.P.C

79 2002 SCC (Crl) 978

80 Id.73

In view of section 196, Cr.P.C., 1973 no Court shall take cognizance of any offence punishable
under chapter VI or a criminal conspiracy to commit such offence except with the previous
sanction of the Central Government or of the State Govt. Section 196, Cr.P.C. reserves to the
State Govt. the power of determining whether cognizance shall be taken by the Court of any of
the offences enumerated in that Section. When the question is only of the machinery for the
institution of the proceedings and not of the mischief which Section 196 is designed to prevent, it
is a mere irregularity not an illegality which would vitiate the proceedings.81
In Pastor P. Rajus82 case, this Court referred to the provisions of Chapter XIV and Sections 190
and 196 (1-A) of the CrPC and observed : There is no bar against registration of a criminal case
or investigation by the police agency or submission of a report by the police on completion of
investigation, as contemplated by Section 173 CrPC. If a criminal case is registered,
investigation of the offence is done and the police submits a report as a result of such
investigation before a Magistrate without the previous sanction of the Central Government or of
the State Government or of the District Magistrate, there will be no violation of Section 196(1-A)
CrPC and no illegality of any kind would be committed. The Court then referred to some of the
precedents including the judgment in Mohd. Khalids83 case and observed: It is necessary to
mention here that taking cognizance of an offence is not the same thing as issuance of process.
Cognizance is taken at the initial stage when the Magistrate applies his judicial mind to the facts
mentioned in a complaint or to a police report or upon information received from any other
person that an offence has been committed. The issuance of process is at a subsequent stage
when after considering the material placed before it the court decides to proceed against the
offenders against whom a prima facie case is made out.
On page 5 the final report was filed against three and then the magistrate took cognizance that
means that the sanction was granted before the cognizance of the magistrate and thus it is purely
legal.

81 http://www.rmlnlu.ac.in/webj/sedition.pdf; Ankur Gupta, B.A.LL.B (Hons.) III Year, Dr Ram

Manohar Lohiya National Law University, Lucknow; last visited on 25 July, 2016.
82 (2006) 6 SCC 728
83 [1995] 1 SCC 684