It is sometimes claimed in popular discourse that the Constituent Assembly was dead set against the inclusion of sedition as a restriction on free speech and expression, and therefore, it is argued that the presence of Section 124A of the IPC penalising sedition is an insult to the intent of the framers of the Constitution. However, no credible explanation is offered by the proponents of this school of thought as to what explains the continued presence of Section 124A, which, it can be safely presumed, the framers of the Constitution were aware of when the draft predecessors Article 19 and its limitations were being debated and put together in and by the Constituent Assembly.
It would help to go a few steps before the Constituent Assembly and take a look at the evolution of Indian thought on sedition before we allow pre-conceived notions to dictate the course of our opinions. Let’s start with the 33rd Session of the Indian National Congress held in 1918 wherein the following Resolution on the right to self-determination was moved by Annie Besant and unanimously adopted:
“BE IT RESOLVED
1. That this Congress claims recognition of India by the British Parliament and by the Peace Conference as one of the progressive Nations to whom the principle of Self-Determination should be applied.
2. That in the practical application of the principle in India the first step should be —
(a) the removal of all hindrances to free discussion, and therefore the immediate repeal of all laws, regulations and ordinances restricting the free discussion of political questions whether in the press, private or public meeting, or otherwise, so that the legitimate aspirations and opinion of all residents in India may be fearlessly expressed; further, the abolition of the laws, regulations, and ordinances, which confer on the Executive the power to arrest, detain, intern, extern, or imprison any British subject in India, outside the processes of ordinary civil or criminal law, and the assimilation of the law of sedition to that of England.
(b) The passing of an Act of Parliament which will establish at an early date complete Responsible Government in India.
(c) When complete Responsible Government shall be thus established, the final authority in all internal affairs shall be the Supreme Legislative Assembly as voicing the will of the Indian Nation.
RESOLVED FURTHER
(d) That in the reconstruction of Imperial polity, whether in matters affecting the inner relations of the nations constituting it, in questions of foreign, policy or in the League of Nations, India shall be accorded the same position as the Self-Governing Dominions.”
Clause 2(a) of the Resolution makes it abundantly clear that what was sought was (a) the abolition of those laws which enabled the Executive to abridge personal liberty outside the processes of ordinary civil or criminal law; and (b) the assimilation of the law of sedition to that of England. In other words, sedition was not sought to be abolished but it was sought to be brought at par with the law in England.
Let’s cut to 1947 when after the founding of the Constituent Assembly, multiple sub-committees were formed to prepare their recommendations on various aspects such as fundamental rights, rights of minorities and the like. It is the proceedings of the sub-committee on fundamental rights which is relevant to the discussion at hand. Members of the said sub-committee presented their respective drafts of provisions on fundamental rights. The journey of Article 19 began with draft Article V of Shri K.M. Munshi, which was submitted by him to the sub-committee on fundamental rights in March 1947. The said Article V read as under:
Article V—(1) There shall be liberty for the exercise of the following rights, subject to public order and morality: —
(a) The right of the citizens to freedom of speech and expression.
The publication or utterance of seditious, obscene, slanderous, libellous or defamatory matter shall be actionable or punishable in accordance with law.
This morphed into Clause 9 of the Draft Report of the said sub-committee dated April 3, 1947, and read as follows:
Clause 9. There shall be liberty for the exercise of the following rights subject to public order and morality: (a) The right of every citizen to freedom of speech and expression.
The publication or utterance of seditious, obscene, slanderous, libellous or defamatory matter shall be actionable or punishable in accordance with law…
Did the restriction based on sedition vanish when the final report was prepared by the sub-committee on Fundamental Rights? No. Here’s Clause 10 of the Report of the Sub-committee dated April 16, 1947:
Clause 10. There shall be liberty for the exercise of the following rights subject to public order and morality or to the existence of grave emergency declared to be such by the Government of the Union or the unit concerned whereby the security of the Union or the unit, as the case may be, is threatened:
(a) The right of every citizen to freedom of speech and expression.
The publication or utterance of seditious, obscene, slanderous, libellous or defamatory matter shall be actionable or punishable in accordance with law.
Did the Advisory Committee, to which all the Sub-committees submitted their respective reports, do away with sedition? No. On the contrary, the proceedings of the Advisory Committee on April 21 and 22, 1947 make it clear that while discussing the preamble to Clause 10 (one of the precursors to Article 19), many members of the Committee were in favour of the clause dealing with seditious speech but did not wish to curtail the powers of the legislature, judiciary or executive to deal with such penal laws later. Importantly, seditious speech or publication was discussed alongside speech that spreads communal hatred, unrest, or distrust in the State.
Did the Drafting Committee, under the stewardship of Dr. Ambedkar, remove sedition from the grounds of restrictions on free speech and expression? No. Here’s Clause 15 based on the proceedings of the Drafting Committee on October 31, 1947:
Clause 15. (i) Subject to public order, health and morality, every citizen shall have the right—
(a) to freedom of speech and expression;
*[Provided that the publication or utterances of seditious, slanderous, libellous or defamatory matter shall be actionable or punishable in accordance with law:]
(b) to assemble peaceably and without arms;
(c) to form associations or unions;
(d) to move freely throughout the territory of India;
(e) to reside and settle in any part of the territory of India;
(f) to acquire, hold and dispose of property; and
(g) to practise any profession, or to carry on any occupation, trade or business.
[(2) [Held over.]
[(3) Nothing in this section shall prevent the State from making any law imposing restrictions on the exercise of any of the rights conferred by clauses (d),(e), (f) and (g) of sub-section (i) if public interest so requires for the promotion of the interests of any tribes specified in such law.]
[(4) Nothing in clause (g) of sub-section (1) shall affect the operation of any law prescribing or empowering any authority to prescribe the professional or technical qualifications which are to be requisite for the practising of any profession, or the carrying on of any occupation, trade or business.]
[6. No person shall be deprived of his life or personal liberty without due process of law, nor shall any person be denied equality before the law [or the equal protection of the laws] within the territory of India
Sedition remained in the subsequent versions of Clause 15 which is reflected in the proceedings of the Drafting Committee on November 1, 1947, November 4, 1947, November 5, 1947 and January 1948. When the Draft Constitution was presented to the Constituent Assembly by the Drafting Committee, Clause 15 had been renumbered to Draft Clause 13 and as of February 21, 1948, it read as under:
Clause 13 – Protection of certain rights regarding freedom of speech, etc..
(1) Subject to , the other provisions of this article, all citizens shall have the right —
(a) to freedom of speech and expression;
(b) to assemble peaceably and without arms;
(c) to form associations or unions;
(d) to move freely throughout the territory of India;
(e) to reside and settle in any part of the territory of India;
(f) to acquire, hold and dispose of property; and
(g) to practise any profession, or to carry on any occupation, trade or business.
(2) Nothing in sub-clause (a) of clause (1) of this article shall affect the operation of any existing law, or prevent the State from making any law, relating to libel, slander, defamation, sedition or any other matter which offends against decency or morality or undermines the authority or foundation of the State.
(3) Nothing in sub-clause (b) of the said clause shall affect the operation of any existing law, or prevent the State from making any law, imposing in the interests of public order restrictions on the exercise of the right conferred by the said sub-clause.
(4) Nothing in sub-clause (c) of the said clause shall affect the operation of any existing law, or prevent the State from making any law, imposing, in, the interests of the general public, restrictions on, the exercise of the right conferred: by the said sub-clause.
(5) Nothing in sub-clauses (d), (e) and (f) of the said clause shall affect the operation of any existing law, or prevent the State from making any law, imposing restrictions on the exercise of any of the rights conferred by the said sub-clauses either in the interests of the general public or for the protection of the interests of any aboriginal tribe.
(6) Nothing in sub-clause (g) of the said clause shall affect the operation of any existing law, or prevent the State from making any law, imposing in the interests of public order, morality or health, restrictions on the exercise of the right conferred by the said sub-clause and in particular prescribing, or empowering any authority to prescribe, the professional or technical qualifications necessary for practising any profession or carrying on any occupation, trade or business
This Draft Clause 13, which later became Article 19, was debated on several dates in the Constituent Assembly. So, what was the Assembly’s position on sedition? I will discuss this in the next piece.
J. Sai Deepak is an Advocate practising as an arguing counsel before the Supreme Court of India and the High Court of Delhi.
Let’s cut to 1947 when after the founding of the Constituent Assembly, multiple sub-committees were formed to prepare their recommendations on various aspects such as fundamental rights, rights of minorities and the like. It is the proceedings of the sub-committee on fundamental rights which is relevant to the discussion at hand. Members of the said sub-committee presented their respective drafts of provisions on fundamental rights.
