In my last piece, I had started a discussion on Section 124A of the IPC which deals with sedition. I had broadly set out the history of the provision, including its original language in 1870 and the amendments undertaken in 1898 and thereafter, leading to the provision as it stands today. In this piece, I will discuss a few landmark judgements which were delivered before the Constitution came into force on January 26, 1950 to understand the treatment of the provision by British Indian Courts.
The first such judgement is Queen-Empress vs Jogendra Chunder Bose And Ors. (1891) delivered by the Calcutta High Court at a time when the provision read as under:
124A. EXCITING DISAFFECTION
Whoever by words, either spoken or intended to be read, or by signs, or by visible representation, or otherwise, excites, or attempts to excite, feelings of disaffection to the Government established by law in British India, shall be punished with transportation for life or for any term, to which, fine may be added, or with imprisonment for a term which may extend to three years, to which fine may be added, or with fine.
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.
A reading of the provision makes it clear that it struck a distinction between exciting feelings of “disaffection” on the one hand, and “disapprobation” of the measures of the Government on the other. According to the Calcutta High Court in 1891, the former referred to a challenge to the lawful authority of the government whereas the latter referred to disapproval of the Government’s measures without calling for disobedience to the authority of the government. Therefore, words, written or spoken, or signs or any form of visible representation which were intended to excite feelings of disaffection towards the government, which were distinct from merely disapprobation or disapproval of the government’s measures, attracted the provision. Mere intention to create disaffection as deciphered from the written or spoken word or visible representation was sufficient, without the need for that intention to have achieved fruition. Following are the relevant extracts from the judgement:
“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 hearers 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 second question for you, gentlemen of the Jury, then, will be whether, upon the evidence before you, you think that the articles circulated by the prisoners were calculated to create such feelings in the minds of their readers, and if so, whether they intended to create such feeling by their circulation.”
Subsequently, in Queen-Empress v. Amba Prasad (1897), on the meaning of “disaffection” and contrasting it with “disapprobation”, the Bombay High Court reiterated as follows the earlier judgement of the Calcutta High Court:
“It (disaffection) 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. You will observe that the amount or intensity of the disaffection is absolutely immaterial, except perhaps in dealing with the question of punishment: if a man excites or attempts to excite feelings of disaffection, great or small, he is guilty under the section. In the next place it is absolutely immaterial whether any feelings of disaffection have been excited or not by the publication in question.
.. The offence consists in exciting or attempting to excite in others certain bad feelings towards the Government. It is not the exciting or attempting to excite mutiny or rebellion, or any sort of actual disturbance, great or small. Whether any disturbance or outbreak was caused by these articles is absolutely immaterial. If the accused intended by the articles to excite rebellion or disturbance, his act would doubtless fall within Section 124A, and would probably fall within other sections of the Penal Code. But even if he neither excited nor intended to excite any rebellion, or outbreak or forcible resistance to the authority of the Government, still, if he tried to excite feelings of enmity to the Government, that is sufficient to make him guilty under the section.
It (the provision) does not apply to any writing which consists not merely of comments upon Government measures, but of attacks upon the Government itself. It would apply to any criticisms of legislative enactments, such as the Epidemic Diseases Act, or any particular tax, or of administrative measures, such as the steps taken by the Government for the suppression of plague or famine. But if you come to the conclusion that these writings are an attack, not merely upon such measures as these, but upon the Government itself, its existence, its essential characteristics, its motives or its feelings towards the people, then you must put aside the explanation altogether and apply the first clause of the section.
What is the meaning of ‘disapprobation’ of Government measures as contrasted with ‘disaffection’ to the Government? I agree with Sir Comer Petheram that while disaffection means the absence of affection, or enmity, disapprobation means simply disapproval; and that it is quite possible to like or be loyal to anyone, whether an individual or a Government, and at the same time to disapprove strongly of his or its measures. This distinction is the essence of the section. It shows clearly what a public speaker or writer may do, and what he may not do. A man may criticise or comment upon any measure or act of the Government, whether legislative or executive, and freely express his opinion upon it. He may discuss the Income-Tax Act, the Epidemic Diseases Act, or any military expedition, or the suppression of plague or famine, or the administration of justice. He may express the strongest condemnation of such measures and he may do so severely, and even unreasonably, perversely and unfairly. So long as he confines himself to that, he will be protected by the explanation. But if he goes beyond that, and, whether in the course of comments upon measures or not, holds up the Government itself to the hatred or contempt of his readers,–as, for instance, by attributing to it every sort of evil and misfortune suffered by the people, or dwelling adversely on its foreign origin and character, or imputing to it base motives, or accusing it of hostility or indifference to the welfare of the people-then he is guilty under the section, and the explanation will not save him.
To come within the protection of the explanation, a writing must not only be the making of comments on Government measures with the intention of exciting only disapprobation of them as distinguished from disaffection to the Government, but the disapprobation must be ‘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.”
This position was endorsed in subsequent cases. However, to clarify the scope of the provision as well as the exceptions carved out in the explanation, the provision was amended as follows in 1898 and the word sedition was used in title for the first time:
124A. SEDITION
Whoever by words, either spoken or written, or by signs or by visible representation, or otherwise, brings or attempts to bring into hatred or contempt, or excites or attempts to excite disaffection towards Her Majesty or the Government established by law in British India, shall be punished with transportation for life or any shorter term, to which fine may be added, or with imprisonment which may extend to three years, to which fine may be added, or with fine.
Explanation 1.–The expression ‘disaffection’ includes disloyalty and all feelings of enmity.
Explanation 2.–Comments expressing disapprobation of the measures of the Government with a view to obtain their alteration by lawful means, without exciting or attempting to excite hatred, contempt or disaffection, do not constitute an offence under this section.
Explanation 3.–Comments expressing disapprobation of the administrative or other action of the Government without exciting or attempting to excite hatred, contempt or disaffection do not constitute an offence under this section
In the next piece, I will discuss the debates in the Constituent Assembly relating to “sedition”.
J. Sai Deepak is an Advocate practising as an arguing counsel before the Supreme Court of India and the High Court of Delhi.