|CITATION||1962 AIR 955|
|COURT||Supreme Court of India|
|JUDGES/CORAM||Chief Justice B.P. Sinha, Justice S.K. Das, Justice A.K. Sarkar, Justice N. Ayyangar, Justice N. Rajagopala and Justice Mudholkar|
|DATE OF JUDGEMENT||20.01.1962|
As defined by Fitzgerald J. in Reg v. Alexander Martin Sullivan sedition is a crime against society, nearly allied to that of treason but it frequently precedes treason by a short interval and 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 empire.
In the landmark decision in Kedarnath Singh v. State of Bihar, the Hon’ble Supreme Court for the first time was confronted with a challenge to the vires of Section 124-A and 505 of Indian Penal Code, 1860 from the standpoint of Article 19(1)(a) and Article 19(2) of the Constitution. While upholding the constitutional validity of the impugned provisions, it was held that the fundamental right of freedom of speech and expression could only be restricted when the words, written or spoken, etc. have the pernicious tendency or intention of creating public disorder or disturbance of law.
The facts of the case are as follows: KedarNath Singh, a member of the Forward Communist Party in Bihar was charged for delivering a seditious speech on 26thMay, 1953 at Village Barauni, P.S. Teghra (Monghyr) by terming the officers of C.I.D as “dogs” and the Indian National Congress as “Goondas”. He went on to say that he believed in revolution, pursuant to which the Capitalists, Zamindars and the Congress leaders of India, who have made it their profession to loot the country, will be reduced to ashes and on their ashes will be established a Government of the poor and the downtrodden people of India. He also targeted Vinobha Bhave’s attempts to redistribute land.
The main issues in the case were:
- Whether Section 124-A and 505 of Indian Penal Code are ultra vires in view of Article 19(1)(a) read with Article 19(2) of the Constitution of India.
- Whether the intention or tendency to create disorder, or disturbance of law and order, or incitement to violence is an essential ingredient required to constitute the offence of sedition.
Summary of court decision and judgment
Kedarnath was prosecuted before a Magistrate, 1st Class, at Begusarai, in the district of Monghyr, in Bihar under Section 124-A (Sedition) and Section 505 (Public Mischief) and was sentenced to undergo rigorous imprisonment for a period of one year. On appeal, Naqui Imam J. speaking for the Single Judge Bench of The Patna High Court upheld the conviction and accordingly dismissed the appeal by observing that the subject matter of charge against the appellant was nothing but a vilification of the Government; that it was full of incitements to revolution and that the speech taken as a whole was certainly seditious.
The appellant, thereafter preferred and obtained a special leave to appeal wherein for the first time the constitutional validity of Section 124-A and 505 was assailed before the Division Bench of Hon’ble Supreme Court on the ground that it amounted to excessive restriction on the fundamental right of freedom of speech and expression guaranteed under Article 19(1)(a) read with Article 19(2) of the Constitution of India. The Bench, finding that the appeal involved a constitutional issue, directed that the appeal be placed for hearing by a Constitution Bench where it was subsequently tagged with a bunch of other criminal appeals. Bhuvaneshwar Prasad Sinha CJ, speaking for the Constitution Bench of Hon’ble Supreme Court unanimously upheld the Constitutional validity of both the impugned sections and accordingly dismissed the appeal and appeals of other connected matters were remanded back to the concerned High Court.
In arriving at the decision, the Hon’ble Court was confronted with two conflicting judgments of the Federal Court in of Niharendu Dut tMajumdar v. King-Emperor by Sir Maurice Gwyer, C.J. wherein it was held that ‘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’ and of the Privy Council in King-Emperor v. Sadashiv Narayan Bhalero where their Lordships while approving the dicta in Bal Gangadhar Tilak and Annie Beasant v. Advocate-General of Madras and Wallace-John-son v. Kingheld that ‘the offence consisted in exciting or attempting to excite in others certain bad feelings towards the Government and not in exciting or attempting to excite mutiny or rebellion, or any sort of actual disturbance, great or small’.
While explaining the nature and scope of Section 124-A, it was held that one hand the legislation had to protect and guarantee the freedom of speech and expression, which is quintessential to democracy and on the other hand it had to prevent the abuse of this freedom from becoming a license for vilification and condemnation of the Government established by law, in words which incite violence or have the tendency to create public disorder. Ergo, a balancing test was undertaken by the Hon’ble Court to draw a clear line between the ambit of free speech and the reasonable restrictions that could be imposed in the interest of public disorder and security of state. In view of the conflicting decisions of the Federal Court and of the Privy Council, it was held that, if the interpretation of the Federal Court is accepted the legislation may fall within the ambit of permissible restriction as a law enacted in the interest of public order may be saved from the vice of constitutional invalidity. However, if the decision of Privy Council was concurred with, it would render the impugned sections unconstitutional in view of Article 19(1)(a) read with clause (2) as it would have a chilling effect on free speech as it would curtail permissible limits fair criticism which is the lifeblood of democracy. Relying on the principles of interpretation of statutes, and referring Bengal Immunity Company Limited v. State of Bihar and R.M.D. Chamarbaugwala v. Union of India it was held that the words may not only be given literal meaning but the antecedent history of the legislation, its purpose and the mischief it seeks to suppress should also be taken into consideration and where two interpretations are possible, the one which renders it valid should be considered, Section 124-A was held intra vires but its scope was curtailed to acts involving intention or tendency to create disorder, or disturbance of law and order, or incitement to violence.
Lastly, commenting upon the validity of Section 505 of IPC it was held that since the three clauses of the section that is making, publishing or circulating any statement, rumor or report (a) with intent to cause or which is likely to cause any member of the Army, Navy or Air Force to mutiny or otherwise disregard or fail in his duty as such; or (b) to cause fear or alarm to the public or a section of the public which may induce the commission of an offence against the State or against public tranquillity; or (c) to incite or which is likely to incite one class or community of persons to commit an offence against any other class or community are in the interests of the security of the State or public order, the section was in consonance with Article 19(2) and thus was valid.
The judgment delivered by the five-judge bench of Hon’ble Supreme Court makes painstaking analysis of the law of sedition. In doing so, the Hon’ble Court set out the history of the law, the amendments it has undergone and the interpretations placed upon the provisions of Section 124-A by the Courts in India, and by their Lordships of the Judicial Committee of the Privy Council in the various plethora of cases such as Queen-Empress v. Jogendra Chunder Bose, Queen-Empress v. Balgangadhar Tilak and Queen-Empress v. Amba Prasad.
At the same time, it recognizes the importance of free speech as being sine qua non of democracy. Article 19 of International Covenant on Civil and Political Rights, 1966 (ICCPR); Article 9 of African Charter on Human and Peoples’ Rights, 1981; Article 10 of European Convention for the Protection of Human Rights and Fundamental Freedoms, 1950; Article 13 of American Convention on Human Rights, 1969 and Article 19 of Universal Declaration of Human Rights, 1948 recognize free speech as the essence of democracy.
Since an individual‘s autonomy is the foundation of this freedom and any restriction on it is thus subject to great scrutiny and the judgment rightly appreciates the need to undertake a balancing test to ascertain the reasonableness of restriction imposed by Section 124-A and 505 IPC. Thus, it was rightly opined 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.
Lastly, the judgment also distinguishes, the expression “the Government established by law” from the persons for the time being engaged in carrying on the administration as meaning the visible symbol of the State.
The dicta of the Hon’ble Supreme Court has settled the controversy surrounding the constitutional validity and scope of Section 124-A and 505 of IPC. It is no more res Integra that it is only when the words are intended or have a tendency to disturb public disorder or tranquillity by incitement to violence can restriction on free speech can be justified.
In Nazir Khan & Ors. v. State of Delhi, this principle was reiterated. Furthermore, in Common Cause & Anr. v. UOI, a Public Interest Litigation was preferred before the Division Bench of Hon’ble Supreme Court and prayer was made to issue directions for review of pending cases of sedition in various courts, where a superior police officer may certify that the seditious act either led to the incitement of violence or had the tendency or the intention to create public disorder. The court granted the prayer and directed the authorities that while dealing with section 124A IPC, they are to be guided by the principles laid down in Kedarnath Singh.
 Reg v. Alexander Martin Sullivan [(1867-71) 11 Cox’s Criminal Law Cases, 44 at p. 45.
 Niharendu Dutt Majumdar v. King-Emperor (1942) FCR 38.
 King-Emperor v. Sadashiv Narayan Bhalero 74 IA 89.
 (1898) ILR 22 Bombay 112.
 46 IA 176.
 (1940) AC 231.
 (1955) 2 SCR 603.
 (1957) SCR 930.
 (1892) ILR 19 Cal 35.
 (1898) ILR 22 Bombay 112.
 ILR (1898) All 55.
 AIR 2003 SC 4427.
 (2016) 15 SCC 269.