CHANAKYA NATIONAL LAW UNIVERSITY, PATNA

WAGING WAR AGAINST STATE

SUBMITTED TOWARDS THE FULFILLMENT OF THE COURSE ENTITLED TO

CRIMINAL LAW I

SUBMITTED TO: SUBMITTED BY:-

PROF:-FATHER PETER LADIS RAJAT KASHYAP
(FACULTY OF LAW) 1423 BBA-LLB
SECOND YEAR

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 DECLARATION PAGE

I hereby declare that the project work entitled waging war against state submitted to CNLU
Patna, is a record of an original work done by me under the guidance of Father PETER F.
LADIS, Faculty of Criminal Law and this project work is submitted in the partial fulfillment of
the requirements of the project work assigned to me. The results embodied in this thesis have not
been submitted to any other University or Institution.

Rajat kashyap
BBA. LL.B (Hons.)
ROLL NO.-1423

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 List of cases

1. Jublia mallah v emperor

2. E V BURNS...
3. Ramesh thapper v state of maharastra ..
4. Brij bhusan v state of delhi ...
5. Kedarnath v state of bihar .
6. Virendra v state of Punjab .
7. Sakal papers v union of India.
8. State of up v raj narain and others ....

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 ACKNOWLEDGEMENT

It is a matter of great pleasure for me to present this project on the topic WAGING WAR
AGAINST STATE. I quite appreciate the overwhelming support and cooperation of my friends
and my batch mates who helped me a lot to bring this project in the best of its form.
An effort has been made to explain the concept of mischief and the principles as well as the
punishments related to it at one place in as simple language as possible.
I appreciate the help and cooperation rendered by my professor FATHER PETER F. LADIS,
without whose guidance the project could not have been brought out in the present form.

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OBJECTIVE OF THE STUDY:

To make descriptive and analytical study about waging war against state.
To Understand the provision related sedition in Indian legal system.
To provide adequate information about sedation law to the readers.

HYPOTHESIS:

PREPARATION TO WAGE A WAR IS OFFENCE

RESEARCH METHODOLOGY

The researcher will rely on doctrinal method of research. The study of research is based on both
primary and secondary sources of data collection. The major sources of data collection of
researcher will be different law books of criminal law.
Doctrinal method :- Books, internet, journals, judgements etc.
Researcher is mainly rely on library based study.

LIMITATION OF THE STUDY

Lack of time
Territorial limitation
Finance

SCOPE OF THE STUDY

For further research this can be a means of doctrinal research

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Contents
Introduction .............................................................................................................................................. 7

Conspiracy Waging war as offence........................................................................................................ 9

BAD LAW BREEDS TROUBLE .................................................................................................................... 12

Role of Supreme Court and freedom of press ........................................................................................ 16

Conclusion............................................................................................................................................... 22

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Waging A War Against The State

The project report aims to study how and under what circumstances the law relating to what
amounts to waging a war against the state applies. The IPC in its chapter 6 consists of s121-
s130. The project can be broadly divided into three parts. The first part of the study describes
section 121 and second part focuses on s121 A of IPC and the third part focuses on the law of
sedition.

Introduction

Section 121 deals with 3 aspects viz. Abetment, attempt and actual war. The section is unique in
itself as it places all the three aspects at par as regards the punishment. Under the general law a
distinction has been made between abetment which has succeeded and abetment which has
failed. But as far as the legislature is concerned it treats both in the same manner because the
crime is treated of highest offence against the state.
The expression waging a war means waging a war in the manner usual in war.1 A deliberate and
organized attack upon the government forces and government institutions amounts to waging a
war. 2The first reform came in the year of 1870 where it was made illegal for conspiring against
the nation itself. This was introduced in the form of section 121A and 121B of section 4 of
Chapter IV. This was the first reform in the subject. It is an offence to conspire against the
Government of India by means of criminal force, or the show criminal force. Under this section,
it is not necessary that any act or illegal omission should take place in pursuance thereof,
whereas under section107 abetment includes the engaging with one or more persons in any
conspiracy for doing of a thing, if an act or illegal omission takes place in pursuance of that of a
conspiracy, and in order to the doing of that thing. In other words except in respect of the
offences particularized in sec.121A conspiracy per se is not an offence. The position changed in
1913 when the Criminal Law Amendment Act came into force. It passes an emergency piece of
legislation which gave an extended effect to the law of conspiracy of India. This added two new
1
The Indian Penal code K.D Gaur pg.221
2
https://www.loc.gov/rr/frd/Military_Law/pdf/Constraints-waging-war

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Jublia Mallah v. Emperor' AIR 1944 Pat 58 (B):

Gentlemen, it may be useful to say a few words on the distinction between levying war against
the King and committing a riot. The distinction seems to consist in this, although they may often
run very nearly into each other. Where the rising or tumult is merely to accomplish some private
purpose, interesting only to those engaged in it, and not resisting or calling in question the King's
authority or prerogative then the tumult, however numerous or outrageous the mob may be, is
held only to be a riot. For example, suppose a mob to rise, and even by force of arms to break
into a particular prison and rescue certain persons therein confined, or oblige the Magistrates to
set them at liberty or to lower the price of provisions in a certain market, or to tear down certain
enclosures, which they conceive to encroach on the town's commons. All such acts, though
severely punishable, and though they may be resisted by force, do not amount to treason.
Nothing is pointed against either the person or authority of the King....
But, gentlemen, wherever the rising or insurrection has for its object a purpose, not confined to
the peculiar views and interests of persons concerned in it, but common to the whole community,
and striking directly the King's authority or that of Parliament, then it assumes the character of
treason. For example, if mobs; were to rise in different parts of the country to throw open all in
closures and to resist the execution of the law regarding enclosures wheresoevers attempted, to
pull down all prisons or Courts of Justice, to resist all revenue officers in the collecting of all or
any of the taxes; in short, all risings to accomplish a general purpose, or to hinder a general
measure, which by law can only be authorized or prohibited by authority of the King or
Parliament, amount to levying of war against the King and have always been tried and punished
of treason. It is, therefore, not the numbers concerned, nor the force employed by the people
rising in arms, but the object which they have in view that determines the character of the crime,
and will make it either riot or treason, according as that object is of a public and general, or
private and local nature.
The then Legislative member of the Govt. of India was Sir James Fitzjames Stephen who later
became one of the Judges of the H. C. in England & was perhaps the greatest authority of his

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generation on criminal law. In his Digest of the Criminal Law Edn. 8, p. 57, one of the meanings
given to the expression "to levy war" is "attacking in the manner usual in war the King himself or
his military forces, acting as such by his orders, in the execution of their duty."

Waging war as offence

S 121A: Conspiracy to commit offences punishable by section 121:

Whoever within or without 49[India] conspires to commit any of the offences punishable by
section 121, [***] or conspires to overawe, by means of criminal force or the show of criminal
force, [the Central Government or any [State] Government [***], shall be punished with
[imprisonment for life], or with imprisonment of either description which may extend to ten
years, [and shall also be liable to fine].
Explanation- To constitute a conspiracy under this section, it is not necessary that any act or
illegal omission shall make place in pursuance thereof.]
This section basically deals with two kinds of conspiracies, namely, conspiracy to wage war (or
attempt to wage war) against the government of India and conspiracy to overawe, by means of
criminal force or the show of criminal force. The offence of conspiracy is complete as soon as
two or more persons agree to do or cause to be done, an illegal act by illegal means. The word
overawe connotes the creation of a situation, in which the government is compelled to choose
yielding to force or exposing the government or the members of the public to a very serious
danger. 3When anybody of men, whether factory operatives or clerks or policemen go on strike,
their object clearly is to coerce their employers into yielding to their demands. Until the early
part of the 19th century combinations of this kind in England were criminal. Subsequently, it
ceased to be a crime for the great majority of workers to resort to a strike although certain acts
done by strikers were & are still punishable as crimes. Policemen, however, & certain other
classes of employees are forbidden by law to go on strike. Each one of the applets. who went on
strike committed an offence & when each of them agreed with the others to do so, they jointly
committed another & more serious offence, namely, the offence of conspiracy. In Vertue v Lord

3
The Indian Penal code K.D Gaur pg.225

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Clive, (1769) 4 Burr. 2472: (98 E. R. 296). Certain military officers in the army of the East India
Company simultaneously tendered their resignations of their commissions on the ground that
they had not received as much in the way of allowances as they believed they were entitled to.
Lord Clivo, in order to meet the very dangerous situation which was thus created, had the
officers placed under arrest, & when they returned to England, some of them instituted actions to
recover damages for assault & false imprisonment. These actions were dismissed, & in
dismissing them, one of the Judges observed that "this combination was a criminal act." This
decision, however, while it shows that the applets., were guilty of conspiracy, is of no assistance
to us in deciding the real point of difficulty arising in the appeal, which is whether the conspiracy
was a conspiracy of such a kind as to attract the operation of Section 121A, Penal Code. The
marginal note to Section 121A is "conspiracy to commit offences punishable by Section 121."
This was strictly accurate description of the section which it was proposed to enact in the bill
originally introduced in the Legislative Council. It is quite clear that the conspiracies aimed at in
the bill were conspiracies either to wage war against the King in the manner in which it is usual
to wage war or conspiracies to raise an insurrection with the object of subverting the
constitution.4 The section, however, as finally enacted, brought within its scope other
conspiracies also, & the marginal note is not a strictly accurate description of what is contained
in it. The words "conspires to overawe by means of criminal force or the show of criminal force
the Central Govt. or any Provincial Govt." clearly embrace not merely a conspiracy to raise a
general insurrection, but also a conspiracy to overawe the Central Govt. or any Provincial Govt.
by the organisation of a serious riot or a large & tumultuous unlawful assembly. Possibly, in
modifying the section as it stood in the bill, the Legislative Council had in mind the case of Lord
George Gordon (21 State Trials 486). Lord George Gordon put himself at the head of a large
mob which proceeded to the Houses of Parliament in order to protest against the enactment of
certain legislation. After having made its protest, the mob dispersed, but certain members of it
proceeded to perpetrate outrages in different parts of the city of London. Lord George Gordon
was tried on a charge of a high treason, & was acquitted, the reason apparently being that, while
he had intended to make a demonstration outside the Houses of Parliament, he had not been a
party to the disorders which resulted from it. Section 121A, occurs in a chapter of the Penal Code

4
Ratanlal and Dhirajlals The Indian Penal Code pg 432

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which is headed "offences against the State" whereas the offence of conspiracy is contained in
the preceding chapter, chap. VA. which is headed "criminal conspiracy." The Legislature in
enacting Section 121A clearly had in mind the English Treason Felony Act of 1848 & it did not
aim at conspiracies other than conspiracies which had a political object, that is, conspiracies to
overthrow the existing constitution or conspiracies to prevent the enactment of legislation which
was considered to be obnoxious or to compel the resignation of a member or members of the
Govt. who had become unpopular. As the section stands in certain circumstances persons who
organize a strike among police men or certain other public or municipal employees might not
render themselves liable to prosecution under it. Clearly, however, persons do not commit this
crime unless it was part & parcel of their plans to overawe the Central or the Provincial Govt. by
criminal 'force or show of criminal force. The word overawe " does not appear anywhere else in
the Penal Code except in this section & in another section in the same chapter (Section 124).5
Under the Common law of England a conspiracy to commit an offence could be punished more
severely than could the commission of the offence itself, and in any case, in England a person
who incites constables to mutiny is liable to a sentence of two years' imprisonment. In other
words, in order to support a conviction on such a charge, it is not enough to show that the
persons charged have contrived to obtain possession of an armory & have, when called upon to
surrender it, used the rifles & ammunition so obtained against the King's troops. It must also be
shown that the seizure of the armory was part & parcel of a planned operation & that their
intention in resisting the troops of the King was to overwhelm & defeat these troops & then to go
on & crush any further opposition with which they might meet until either the leaders of the
movement succeeded in obtaining possession of the machinery of Govt. or until those in
possession of it yielded to the demands of their loaders.

5
The Indian Penal code K.D Gaur pg.253

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BAD LAW BREEDS TROUBLE

One of the most politically fraught laws of all time, sedition is aimed at anyone who "brings or
attempts to bring into hatred or contempt, or excites or attempts to excite disaffection towards,
the government established by law in India". It is the highest form of offence against the state,
merits the highest punishment and is the most misused-with successive governments using it to
stifle criticism, explains jurist Ram Jethmalani. The law clashes with the right to freedom of
speech and expression guaranteed by Article 19(1)(a) of the Constitution. It is not even part of
the "reasonable restrictions" on free speech under Article 19(2). Yet sedition as a criminal
offence remains in the Indian Penal Code (IPC) under Section 124-A, ruining lives touched by it:
unwarranted arrests, confiscated passports, dismissal from government jobs, no bail, no dropping
of charges without a judge, tough and expensive legal procedures, the threat of fine and
incarceration for a life term. "Unless India figures out how to treat the problem of a bad law, it
will only get worse," says Jethmalani
"We are slapping sedition cases at a time when the draconian law is either being scrapped or
rendered toothless in most modern constitutional democracies around the world," says P.D.T.
Achary, constitutional expert and former secretary-general of the Lok Sabha. New Zealand has
got rid of the law (see graphic: Sedition Around the World). Australia has narrowed its scope,
eliminating imprisonment. In the US, some laws have been repealed, some have been made a
dead letter. In the UK, although the last sedition trial took place in 1947, the law was abolished
in 2009-217 years after Thomas Paine was convicted of sedition for writing the Rights of Man.
"It puts India at par with countries with the worst human rights index," adds Achary, "Saudi
Arabia, Malaysia, Iran, Uzbekistan...."

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Sedition

SEDITION as a subject was hardly talked about until the 1970s and 80s and then receded into
the background until recently, when it again started receiving a considerable measure of
attention. According to some writers on English Law, the first definite instance found of a law
relating to quasi sedition offences was a provision in the First Statute of Westminster passed in
the year 1275 which provided a penalty for the publishing of false news or tales whereby
discord may grow between the King and his people" or the great men of the realm". However,
control of the affairs of the nation gradually devolved upon elected representatives of the people
Parliamentary Government by means of a Ministry nominally the Kings servant but really
representing the majority party in the House of Commons. Thereafter, laws of sedition came in
the 18th century to constitute any written censure upon public men for their conduct as such or
upon the law or upon the institutions of the country and to take care of public disturbances which
had certain tendencies".
The laws of sedition can be found in the Indian Penal Code under s 124A. Today the law of
sedition in India has assumed controversial importance largely on account of change in the body
of politic and also because of the constitutional provision of freedom of speech and expression
guaranteed as a fundamental right. The law of sedition was also embodied in some other
statutes1. However, the general statement of law was similar in all the provisions and could be
gathered from s 124A, IPC. In the original draft of IPC 1860 this section was omitted. It was
inserted by an amendment in 1870 which in turn was replaced by the amendment of 1898 .
Together with these changes s124A stands as follows:
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 the imprisonment which may extend
to 3 years, to which fine may be added, or with 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.

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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.
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, jeopardize
the safety and stability of the State, or disseminate such feelings of disloyalty as have the
tendency to lead to the disruption of the State or to public disorder. In England, the crime has
thus been described by Stephen in his Commentaries on the Laws of England, 21st Edition,
volume IV, at pages 141-142, in these words.
The difference between the old and the new law is that in the former the offence consisted in
exciting or attempting to excite the feelings of disaffection" but in the latter, bringing or
attempting to bring into hatred or contempt the government of India is also punishable. The
common law on the other hand in this subject was too wide and severe in the initial stages. In
England the growth of liberty of speech and expression, particularly with regard to criticism of
government, was gradual. Consequently, the courts began to introduce guiding principles so as to
govern the judges in deciding when an intention to excite ill-will and hostility is seditious and
when it is not. Fitzerland, J in R v. Sullivan, which was later on approved in R v. Burns and
Others observed: sedition in itself a comprehensive term and embraces all those practices which
are directed against the state.

Elements of sedition

Stephen's, definition of seditious intention was accepted as accurate by the Criminal Code
Commissioners and by Cave J., in his direction t o the jury in E. v. Burns.7 In the case of written
words this is seditious libel.
Article 114 in Stephen's Digest of the Criminal Law reads 103 -

7
https://supreme.justia.com/cases/federal/us/427/347/

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A seditious intention is 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 constitution of
the United Kingdom, as by law established , or either House of Parliament, or the administration
of justice , or t o excite His Majesty's subjects to attempt otherwise than by lawful means, the
alteration of any matter in Church or State by law established , [or to incite any person to commit
any crime in disturbance of the peace,] or to raise discontent or disaffection amongst His
Majesty's subjects , or to promote feelings of ill - will and hostility between different classes of
such subjects . An intention t o show that His Majesty has been misled or mistaken in his
measures, or t o point out errors or defects in the government or constitution as by law
established, with a view to their reformation, or to excite His Majesty's subjects t o attempt by
lawful means the alteration of any matter in Church or State by law established , or to point out ,
in order t o secure their removal, matters which are producing, or have a tendency to produce,
feelings of hatred and ill - will between classes of His Majesty's subjects , is not a seditious
intention.8

Role of Supreme Court and freedom of press

In one of the earliest judgments, pre-censorship of the press was held to be unconstitutional
Ramesh Thapar vs. State of Madras, 9 Brij Bhushan vs. State of Delhi. 10Similarly, there has been
lot of differences of opinions regarding indecency and immorality as to what constitutes indecent
literature or other expressions through media. Similarly, the law of sedition under section 124A
11
of the I.P.C. was also subjected to dispute in Kedarnath vs. State of Bihar, when Supreme
Court held the validity of this provision. Under the Freedom of Speech and Expression, there is
no separate guarantee of freedom of the press and the same is included in the freedom of
expression, which is conferred on all citizens Virender vs. State of Punjab12 and Sakal Papers vs.

8
Ratanlal and Dhirajlals The Indian Penal Code pg 339
9
https://indiankanoon.org/doc/456839/
10
www.the-laws.com/Encyclopedia/Browse/Case?CaseId=000591360000
11
https://indiankanoon.org/doc/111867/
12
judis.nic.in/supremecourt/qrydisp.asp?tfnm=4110

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Union of India13. It has also been by this judgment that freedom of the press under the Indian
Constitution is not higher than the freedom of an ordinary citizen. It is subjected to same
limitation as are provided by Article 19(2). It has been held by the Court in the above cases that
press is not immune from paying taxes, from following labor laws, regulating services of the
employees, law of contempt of the Court, law of defamation. It has been held by the Supreme
Court that right of speech and expression includes right to acquire and import ideas and
information about the matters of common interests in the case of Hamdard Dawakhana vs. Union
of India and to answer any criticism leveled against one's views through any media. This
freedom also includes right to impart and receive information through telecasting. It also
includes publication of advertisement and commercial speech. It also covers right to hold
telephonic conversation in privacy [PUCL vs. Union of India]14 . It is thus quite clear that right
to acquire and get information is a fundamental right under the Indian Constitution. In a recent
case, the Supreme Court held that considering the wide spread illiteracy of the voters and at the
same time there over-all culture and character they need to be well informed about the candidate
contesting election as M.P. or MLA so that they are in a position to decide independently to cast
their votes in favour of more efficient candidates. The right to get information in a democracy is
recognized in all the countries. In one of the early decision in the case of State of UP vs. Raj
Narain and Others 15, the Supreme Court of India considered a question whether privilege can be
claimed by Government of UP under section 123 of Evidence Act in respect of Blue Book
summoned from the Government of UP and certain documents summoned from SP, Police,
Raibareilly, UP. The court observed that In a government of responsibility like ours, where all
the agents of the public must be responsible for their conduct, there can be but few secrets. The
people of this country have a right to know every public act, everything that is done in a public
way, by their public functionaries. They are entitled to know the particulars of every public
transaction in all its bearing." In another recent case the Court dealt with citizen's rights to
freedom of information and observed as under: - In modern constitutional democracies, it is
axiomatic that citizens have a right to know about the affairs of the government which, having
been elected by them, seek to formulate sound policies of governance aimed at their welfare.

13
https://www.article19.org/.../en/india:-sakal-papers-(p)-ltd.-&-oth.-v.-union-of-india
14
http://www.hrln.org/hrln/right-to-food/pils-a-cases/255-pucl-vs-union-of-india-a-others-.html
15
http://www.right2info.org/cases/r2i-state-of-uttar-pradesh-v.-raj-narain

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Democracy expects openness and openness is concomitant of a free society and the sunlight is a
best disinfectant."

Kedar Nath Case and the aftermath

Section 124A of the Indian Penal Code which makes sedition as an offence constitutionally
valid. Though the section imposes restrictions on the fundamental freedom of speech and
expression, the restrictions are in the interest of public order and are within the ambit of
permissible legislative interference with the fundamental right. There is a conflict on the question
of the ambit of s. 124A between decision of the federal Court and of the Privy Council. The
Federal Court has held that words, deeds or writings constituted an offence under s. 124A only
when they had the intention or tendency to disturb public tranquility. to create public disturbance
or to promote disorder, whilst the Privy Council has taken the view that it was not an essential
ingredient of the offence of sedition under s. 124A that the words etc, should be intended to or be
likely to incite public disorder. Either view can be taken and supported on good reasons. If the
view taken by the Federal Court was accepted s.124A would be use constitutional but if the view
of the Privy Council was accepted it would be unconstitutional. 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 lean in favour of the
former construction. Keeping in mind the reasons for the introduction of s. 124A and the history

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of sedition the section must be so construed as to limit its application to acts involving intention
or tendency to create disorder, or disturbance of law and order; or incitement to violence. Each
one of the constituent elements of the offence of making, publishing or circulating statements
conducing to public mischief, punishable under s. 505 of the Indian Penal Code, had reference
to, and a direct effect on, the security of the State or public order. Hence the provisions of s. 505
were clearly saved by Art. 19(2). A speech may disturb public order or it may not, but both are
made punishable under Section 124A. The section hits speeches of both varieties permissible
speeches and impermissible speeches. The explanation to section 124A does not affect the
interpretation of the main section. In a democratic set up a citizen is entitled to criticize the
Government with a view to change it.
Two questions arose in the case, namely (i) does s. 124A enact a law which is in the interest of
public order and (ii) does this section impose reasonable restrictions in the interest of public
order. The decision in I. L. R. (1958) 2 All. 84 which has declared s.124A to be ultra virus takes
the correct law.
Interpretation by Courts of words of statutes to a particular set of facts has been changing with
the change in the social and political structure of society and the opinion of its reasonable
members. Section 124A is in a chapter which deals with offences against the State. Therefore, it
is not a case of libel against any officer but of an offence against the State. Though the section
imposes restrictions on the fundamental freedom of speech and expression, the restrictions are in
the interest of public order and are within the ambit of permissible legislative interference with
the fundamental right. There is a conflict on the question of the ambit of s. 124A between
decision of the federal Court and of the Privy Council. The Federal Court has held that words,
deeds or writings constituted an offence under s. 124A only when they had the intention or
tendency to disturb public tranquility. to create public disturbance or to promote disorder, whilst
the Privy Council has taken the view that it was not an essential ingredient of the offence of
sedition under s.124A that the words etc, should be intended to or be likely to incite public
disorder. Either view can be taken and supported on good reasons. If the view taken by the
Federal Court was accepted s. 124A would be use constitutional but if the view of the Privy
Council was accepted it would be unconstitutional. 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 lean in favors of the former

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construction. Keeping in mind the reasons for the introduction of s.124A and the history of
sedition the section must be so construed as to limit its application to acts involving intention or
tendency to create disorder, or disturbance of law and order; or incitement to violence.
Each one of the constituent elements of the offence of making, publishing or circulating
statements conducing to public mischief, punishable under s. 505 of the Indian Penal Code, had
reference to, and a direct effect on, the security of the State or public order. Hence the provisions
of s. 505 were clearly saved by Art.19 (2). The main question in controversy was whether
ss.124A and 505 of the Indian Penal Code have become void in view of the provisions of Art.
19(1) (a) of the Constitution.
Explanation-Such a disapprobation of the measures of the Government as is compatible with a
disposition to render obedience to the lawful authority of the Government and to support the
lawful authority of the Government against unlawful attempts to subvert or resist that authority,
is not disaffection. Therefore, the making of comments on the measures of the Government, with
the intention of exciting only this species of disapprobation, is not an offence within this clause."
The first case in Indian that arose under the section is what is known as the Bangobasi case
(Queen-Empress v. Jagendra Chunder Bose (1)) which was tried by a Jury before Sir Comer
Petheram, C J. while charging the jury, the learned Chief Justice explained the law to the jury in
these terms:
"Disaffection means a feeling contrary to affection, in other words, dislike or hatred.
Disapprobation means simply disapproval. It is quite possible to disapprove of a mans
sentiments or action and yet to like him. The meaning of the two words is so distinct that I feel it
hardly necessary to tell you that the contention of Mr. Jackson cannot be sustained. If a person
uses either spoken or written words calculated to create in the minds of the persons to whom they
are addressed a disposition not to obey the lawful authority of the Government, or to subvert or
resist that authority, if and when occasion should arise, and if he does so with the intention of
creating such a disposition in his bearers or readers, he will be guilty of the offence of attempting
to excite disaffection within the meaning of the section though no disturbance is brought about
by his words or any feeling of disaffection, in fact, produced by them. It is sufficient for the
purposes of the section that the words used are calculated to excite feelings of ill will against the
Government and to hold it up to the hatred and contempt of the people, and that they were used
with the intention to create such feeling."The next case is the celebrated case of Queen-Empress

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v. Balqanqaddhar Tilak which came before the Bombay High Court. The case was tried by a jury
before Strachey, J. The learned judge, in the course of his charge to the jury, explain the law to
them in these terms:
"The offence as defined by the first clause is exciting or attempting to excite feelings of
disaffection to the Government. What are "feelings of disaffection"? I agree with Sir Comer
Petheram in the Bangobasi case that disaffection means simply the absence of affection. It means
hatred, enmity dislike, hostility, contempt and every form of ill-will to the Government.
"Disloyalty" is perhaps the best general term, comprehending every possible form of bad feeling
to the Government. That is what the law means by the disaffection which a man must not excite
or attempt to excite; he must not make or try to make others feel enmity of any kind towards the
Government. The seditious conduct may be by words, by deed, or by writing. Five specific heads
of sedition may be enumerated according to the object of the accused. This may be either16
1. To excite disaffection against the King, Government, or Constitution, or against Parliament or
the administration of justice;
2. To promote, by unlawful means, any alteration in Church or State;
3. To incite a disturbance of the peace;
4. To raise discontent among the King's subjects;
5. To excite class hatred.
It must be observed that criticism on political matters is not of itself seditious.
The test is the manner in which it is made. Candid and honest discussion is permitted. The law
only interferes when the discussion passes the bounds of fair criticism. More especially will this
be the case when the natural consequence of the prisoners conduct is to promote public
disorder." This statement of the law is derived mainly from the address to the Jury by Fitzerald,
J., in the case of Reg v. Alexander Martin Sullivan . In the course of his address to the Jury the
learned Judge observed as follows:
"Sedition is a crime against society, nearly allied to that of treason, and it frequently precedes
treason by 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 tranquility of the
State, and lead ignorant persons to endeavor to subvert the Government and the laws of the

16
Ratanlal and Dhirajlals The Indian Penal Code pg-347

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empire. 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
constitution of the realm, and generally all endeavors to promote public disorder."
In Brij Bhushan's case the same majority struck down s. 7(1)(c) of the East Punjab Public Safety
Act, 1949, as extended to the Province of Delhi, authorizing the imposition of restrictions on the
freedom of speech and expression for preventing or combating any activity prejudicial to the
public safety or the maintenance of public order. The Court held the provisions to be in excess of
the powers conferred on the Legislature by cl. (2) of Art. 19 of the Constitution.

Conclusion

It is thus understood that there will always be ambiguity as to whether sedition law in India is
violative of Art 19(2) of our constitution. The case of Kedar nath Singh has given this debate a
new dimension following which there have been a number of cases highlighting and dealing with
the same problem thereby providing some parameters and clarifying the aspects of what
amounts to waging a war against a state. It is only when the words written, spoken etc., which
have the pernicious tendency or intention of creating public disorder or disturbance of law and
order that steps into prevent such activities in the interest of the society at large. So construed the
law dealing with waging war against the state in my opinion, strikes the right balance between
individual fundamental rights and the interest of public order, national interest and national
security.

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BIBLIOGRAPHY:

WEBSITES:
www.lawyersclubindia.com
www.legalserviceindia.com
www.blogspot.com
www.legalnote.com

BOOKS:
The Indian Penal code (K.D Gaur) revised edition 2014
The Indian Penal Code-As Amended By The Criminal Law (Amendment) Act, 2013( Ratanlal and
Dhirajlals)

Criminal Law- Incorporating The Criminal Law (Amendment) Act, 2013(by P.S.A. Pillai)

Criminal Manual:IPC (Universal's Legal Manual)

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