Kedar Nath Singh vs State of Bihar

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: supreme-court

Case Number: Criminal Appeal No. 169 of 1957

Decision Date: 20 January 1962

Coram: Bhuvneshwar P. Sinha, S.K. Das, A.K. Sarkar, N. Rajagopala Ayyangar, J.R. Mudholkar

In the matter of Kedar Nath Singh versus the State of Bihar, the Supreme Court of India delivered its judgment on 20 January 1962. The case was reported under the citations 1962 AIR 955 and 1962 SCR Supl. (2) 769. The judgment was authored by Justice Bhuvneshwar P. Sinha, who sat as Chief Justice, and the bench also included Justices S. K. Das, A. K. Sarkar, N. Rajagopala Ayyangar, and J. R. Mudholkar. The petitioner was Kedar Nath Singh and the respondent was the State of Bihar. The decision is referenced in numerous citator entries, specifically R 1963 SC 996 (5), R 1964 SC 1230 (9), RF 1967 SC 1877 (22), D 1970 SC 2015 (12), RF 1973 SC 1091 (6), D 1980 SC 354 (5), RF 1980 SC 1042 (11), and E 1991 SC 101 (28, 69, 227, 278). The statutory framework examined concerned provisions relating to sedition and statements conducing to public mischief, namely sections 124A and 505 of the Indian Penal Code, 1860 (Act XLV of 1860), together with the relevant clauses of the Constitution of India, Articles 19(1)(a) and 19(2).

The Court observed that section 124A of the Indian Penal Code, which criminalises sedition, is constitutionally valid despite imposing a restriction on the fundamental right to freedom of speech and expression. The restriction, however, is justified as it is intended to protect public order and therefore falls within the permissible scope of legislative interference with the fundamental right. The judgment noted a conflict between the earlier decision of the Federal Court of India and the view of the Privy Council on the scope of section 124A. The Federal Court had held that an act, word, or writing would constitute an offence under section 124A only where it was intended or had the tendency to disturb public tranquility, create public disturbance, or promote disorder. In contrast, the Privy Council had taken the position that the intention or likelihood of inciting public disorder was not an essential element of the offence of sedition. The Court explained that either approach could be supported by sound reasoning, but if the Federal Court’s narrower approach were accepted, section 124A would be constitutional, whereas acceptance of the Privy Council’s broader view would render the provision unconstitutional. Consistent with the principle that, when one interpretation renders a law consistent with the Constitution and another renders it inconsistent, the Court prefers the former, the Court adopted the Federal Court’s construction. In doing so, the Court considered the historical purpose of section 124A, the reasons for its introduction, and the need to limit its application to acts that involve an intention or tendency to create disorder, disturb law and order, or incite violence. The Court followed the precedent set in Niharendu Dutt Majumdar v. King Emperor (1942) F.C.R. 38, and expressly did not follow the earlier authorities King Emperor v. Sadashiv Narayan Bhalerao (1947) L.R. 74 I.A. 89 and Wallace Johnson v. The King [1940] A.C. 231. The decision also referred to the judgments in Romesh Thapar v. The State of Madras (1955) S.C.R. 594, Brij Bhushan v. The State of Delhi (1950) S.C.R. 605, and Ramji Lal Modi v. The State U.P. (1957) S.C.R. 860.

In this case the Court applied the authorities of The Bengal Immunity Company Limited v. The State of Bihar, (1955) 2 S. C. R. 603 and R. M. D. Chamarbaugwala v. The Union of India, [1957] S. C. R. 930. The Court observed that each constituent element of the offence of making, publishing or circulating statements conducing to public mischief, which is punishable under section 505 of the Indian Penal Code, has a reference to, and a direct effect on, the security of the State or on public order; consequently, the provisions of section 505 are saved by Article 19(2) of the Constitution. The judgment concerned Criminal Appeal No. 169 of 1957, which was filed by special leave against the judgment and order dated 9 April 1956 of the Patna High Court in Criminal Appeal No. 445 of 1955, and also involved Criminal Appeals Nos. 124 to 126 of 1958 arising from the judgment and order dated 16 May 1958 of the Allahabad High Court in Criminal Appeals Nos. 76 and 108 of 1955 and Criminal Writ No. 2371 of 1955. The appellant’s counsel contended that the appellant had been convicted under sections 124A and 505 of the Indian Penal Code and that both sections were ultra violet because they contravened the guarantee of freedom of speech contained in Article 19(1)(a) of the Constitution. It was argued that a speech may or may not disturb public order, yet both situations are punishable under section 124A, which therefore suppresses both permissible and impermissible speech. The counsel further asserted that the explanatory clause to section 124A does not affect the interpretation of the principal provision and that, in a democratic society, a citizen is entitled to criticize the Government with a view to effect change. Two questions were framed: first, whether section 124A enacts a law that serves the interest of public order; and second, whether the section imposes reasonable restrictions in the interest of public order. The counsel relied upon the decision reported in I. L. R. (1958) 2 All. 84, which declared section 124A ultra violet, and submitted that this decision represents the correct legal position. The respondent’s counsel referred to the ruling in Ramji Lal Modi v. State of U. P. [1957] S. C. R. 860 and indicated an intention to adopt the submissions of Shri C. B. Agarwala. Counsel for the appellant in Criminal Appeals Nos. 124 to 126 of 1958 argued that the proper meaning of section 124A, in the present constitutional framework, is the one given by the Federal Court in Niharendu Dutt’s case, 1942 F. C. R. 38, rather than the meaning assigned by the Privy Council in Bhalerao’s case, 74 I. A. 89. It was further submitted that the interpretation of statutory words in relation to specific facts evolves with changes in the social and political structure of society and the prevailing opinions of its reasonable members. Since section 124A is situated in a chapter dealing with offences against the State, the provision does not constitute a case of libel against any officer but rather addresses an offence against the State.

In this matter, the Court observed that an offence under section 124A was an offence against the State. It noted that the English‑law expressions relating to sedition corresponded to those in section 124A, as stated in Stephen’s Commentary on the Law of England, volume 4, page 141; Halsbury’s Law of England, third edition, volume 10, page 169; Jowitt’s Dictionary of English Law, page 1605; and Stephen’s History of Criminal Law, volume 2, pages 298 and 301, chapter 24. The Court explained that under English law, a tendency to create tumult or disorder formed an essential element of sedition, citing Russell on Crimes, volume 1, page 229, and the cases R v Collins (173 E.R. 910) and R v Sullivan (11 Cox 44). The Court further remarked that section 124A had been taken from English law (see 22 Bom. 152) and therefore had to be interpreted in the same manner as sedition was interpreted in England, meaning that a tendency to disturb public order was an essential component of the offence under section 124A. The Court referred to Articles 133 and 133A of the Canadian Criminal Code, which dealt with sedition and had been given the same interpretation (1951, Canadian S.C.R. 265). It rejected the view expressed in Tilak’s case (22 Bom. 1112), Bhalerao’s case (74 I.A. 89) and Wallace Johnson’s case [1940] A.C. 231, which held that incitement to violence or a tendency to disturb public order was not a necessary ingredient of section 124A. Instead, the Court endorsed the judgment of the Federal Court in 1942 F.C.R. 38, which held that the tendency to disturb public order was necessary, a view also adopted in Devi Saran’s case (32 Pat. 1124). The Court recognized two competing interpretations of section 124A before it—one from the Federal Court and another from the Privy Council—and concluded that the Court should follow the Federal Court’s interpretation because it rendered the provision constitutional. Even if the Privy Council’s interpretation were accepted, the Court held that section 124A would remain valid, since the provision contemplated speech likely to disturb public order and served the interest of public order contemplated in Article 19(2). The Court observed that the inclusion of cases where public order was not likely to be disturbed did not invalidate the section. It referenced its earlier decisions in Ramjilal Modi’s case [1957] S.C.R. 860 and Virendra’s case [1958] S.C.R. 308, and noted that Lohia’s case [1960] 2 S.C.R. 821 did not affect the present decision because in that case the provisions curtailing freedom of speech were found not to be in the interest of public order due to a lack of connection with disturbance of public order. The Court further stated that even if the Privy Council’s view were applied, the provision would still be severable and valid where public order was threatened.

S. C. R. 930, [1941] F. C. 72, [1951] S. C. R. 682, [1953] 1059 and 65 L. Ed, 1139 were cited. P. Verma, appearing for the Attorney‑General, argued that under Article 374(2) of the Constitution the decisions of the former Federal Court must be treated as decisions of the Supreme Court. He submitted that the decision of the Federal Court reported in 1942 F.C.R. 38 should be deemed to be a decision of this Court and therefore binding on it.

The counsel further observed that a tendency to disturb public order is built into section 124A of the Indian Penal Code itself. Gopal Behari, counsel for the respondent in Criminal Appeal No. 124 of 1958, stated that the interpretation of section 124A given by the Privy Council had already been accepted by the High Courts. He noted that even under English law the offence of sedition does not necessarily require an intention to disturb public order, as reflected in 79 C. L. R. 101. He argued that explanations (2) and (3) of the section would become redundant if the section were read to incorporate the English approach to sedition.

He added that the Allahabad High Court as well as other High Courts had adopted the same interpretation of section 124A as the Privy Council. He referred to earlier decisions such as 1941 All. 156, 1930 Lah. 309, 56 Cal. 1085 and 10 Luck. 712. He also mentioned the decision in Lohia’s case, [1960] 2 S.C.R. 821, indicating that it governed the present matter. According to his submission, section 124A punishes speech that does not have a tendency to disturb public order and therefore infringes Article 19(1)(a). He contended that this infringement is not saved by Article 19(2) because the restriction is not in the interest of public order. He further argued that the Court cannot rewrite the statute by removing from its scope those speeches that lack a tendency to disturb public order and limiting it only to speeches that do have such a tendency. Consequently, the whole section must be struck down and cannot be dissected.

C. B. Agarwala, appearing in reply, referred to English law, stating that a necessary ingredient of a seditious intention is that it must have a tendency to cause tumult or disorder, citing cases such as R. v. Alred, 22 Cox C.C. 1, R. v. Burdett, 101 805, and R. v. O’Brien, 6 St. Tr. (N. S.) 571. He observed that the Privy Council had only said that actual incitement to violence was not a necessary ingredient of the offence, but it had not gone further to declare that a tendency to disturb public order was not an ingredient of section 124A. He pointed out that even when the public is not an explicit ingredient of the offence, there remains a tendency to disturb public order in speeches or writings that bring about hatred, contempt, or excite dissatisfaction towards the Government established by law.

The judgment of the Court was delivered by Justice Sinha, C. J. He explained that the principal question in these appeals was whether sections 124A and 505 of the Indian Penal Code had become void in view of the provisions of Article 19(1)(a) of the Constitution. He noted that the constitutionality of section 124A, which was the main issue before the Court, was common to all the appeals, and that the facts of each appeal would be shortly set out separately. In Criminal Appeal 169 of 1957, the appellant was Kedar Nath Singh, who had been prosecuted before a Magistrate of the First Class at Begusarai in the district of Monghyr, Bihar.

Kedar Nath Singh, the appellant, faced prosecution before a First‑Class Magistrate at Begusarai in the district of Monghyr, Bihar. The Magistrate framed charges against him, and the charge sheet reproduced the exact words spoken by the appellant on 26 May 1953 at the village of Barauni, Police Station Taghra, in order to set out the essential elements of the alleged offence. The prosecution alleged that the appellant, by uttering the following statements, had brought or attempted to bring hatred, contempt, or disaffection towards the Government established by law, thereby constituting an offence punishable under section 124A of the Indian Penal Code.

The charge sheet recorded the appellant’s statements as follows: “First‑that you on 26th day of May, 1953 at village Barauni, P. S. Taghra (Monghyr) by speaking the words, to wit, (a) To‑day the dogs of the C. I. D are loitering round Barauni. Many official dogs are sitting even in this meeting. The people of India drove out the Britishers from this country and elected these Congress goondas to the gaddi and seated them on it. To‑day these Congress goondas are sitting on the gaddi due to mistake of the people. When we drove out the Britishers, we shall strike and turn out these Congress goondas as well. These official dogs will also be liquidated along with these Congress goondas. These Congress goondas are banking upon the American dollars and imposing various kinds of taxes on the people to‑day. The blood of our brothers‑mazdoors and Kishanas is being sucked. The capitalists and the zamindars of this country help these Congress goondas. These zamindars and capitalists will also have to be brought before the peoples court along with these Congress goondas. (b) On the strength of the organisation and unity of Kisans and mazdoors the Forward Communists Party will expose the black deeds of the Congress goondas, who are just like the Britishers. Only the colour of the body has changed. They have to‑day established a rule of lathis and bullets in the country. The Britishers had to go away from this land. They had aeroplanes, guns, bombs and other weapons with them. (c) The Forward Communist Party does not believe in the doctrine of vote itself. The party had always been believing in revolution and does so even at present. We believe in that revolution, which will come and in the flames of 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. (d) It will be a mistake to expect anything from the Congress relers. They (Congress rulers) have set up V. Bhave in the midst of the people by causing him wear a langoti in order to divert the people's attention from their mistakes. To‑day Vinova is playing a drama on the stage of Indian politics. Confusion is being created among the people. I want to tell Vinova and advise his agents, ‘you should understand the people cannot be deceived by this illusion and fraud of Vinova’. I shall Vinova not to become a puppet in the of the Congress men. These persons, understand the Yojna‑of Vinova, realise that Vinova is an agent to the Congress Government. (e) I tell you that this Congress Government will”.

According to the record, the prosecution alleged that the accused had, on 26 May 1953 at the village of Barauni in the police station area of Tegra (Monghyr), uttered a series of statements that were intended to bring hatred, contempt, or disaffection toward the government established by law in the Indian Union, thereby committing an offence punishable under section 124A of the Indian Penal Code, which lay within the jurisdiction of the trial court. The accused first declared, “Today the dogs of the C.I.D. are loitering round Barauni. Many official dogs are sitting even in this meeting. The people of India drove out the Britishers from this country, and elected these Congress Goondas to the gaddi and seated them on it. Today these Congress Goondas are sitting on the gaddi due to the mistake of the people. When we have driven out the Britishers, we shall strike and turn out these Congress Goondas. These Congress Goondas are banking upon the American dollars and imposing various kinds of taxes on the people today. The blood of our brothers Mazdoors and Kisans is being sucked. The capitalists and the zamindars of this country help these Congress Goondas. These zamindars and capitalists will also have to be brought before the people’s Court along with these Congress Goondas.” He then proceeded to say, “On the strength of organisation and unity of Kisans and Mazdoors the Forward Communist Party will expose the black‑deeds of the Congress Goondas, who are just like the Britishers. Only the colour of the body has changed. They have today established a rule of lathis and bullets in the country. The Britishers had to go away from this land. They had aeroplanes, guns, bombs, and other reasons with them.” In a further remark he asserted, “The Forward Communist party does not believe in the doctrine of votes itself. The party has always believed in revolution and does so even at present. We believe in that revolution which will come and in the flames of 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.” Continuing his tirade, he claimed, “It will be a mistake to expect anything from the Congress rulers. They (Congress rulers) have set up V. Bhave in the midst of the people by causing him to wear a langoti in order to divert the attention of the people from their mistakes. Today Vinoba is playing a drama on the stage of Indian politics. Confusion is being created among the people. I want to tell Vinova and advise his agents, ‘You should understand that the people…’” The prosecution further contended that these statements, taken together, were made with the intent or likelihood of causing fear or alarm among the public, thereby inducing persons to commit offences against the State of Bihar and against public tranquility, which constituted an offence punishable under section 505(b) of the Indian Penal Code, also within the trial court’s cognizance. After recording a substantial volume of oral evidence, the trial judge proceeded to consider the material in accordance with the law.

The Court recorded that the appellant had declared that the public could not be deceived by the “Yojna, illusion and fraud of Vinova,” and that he would advise Vinova not to become a puppet of the Congress men. He further stated that those who understood Vinova’s plan would realise that Vinova was an agent of the Congress Government. He then warned that the Congress Government would bring no benefit and addressed the “Congress tyrants” in strong language, accusing them of playing with the people, entangling them in bribery, black‑marketing and corruption, and of behaving like Nawabs while the children of the poor were hungry for food.

The Court observed that these statements were made with the intention of, or were likely to, cause fear or alarm among the public, thereby inducing persons to commit offences against the State of Bihar and against public tranquility. Consequently, the appellant’s conduct was found to constitute an offence punishable under section 505(b) of the Indian Penal Code, which lay within the jurisdiction of the learned Trial Magistrate.

After taking a substantial volume of oral evidence, the Trial Magistrate convicted the appellant under sections 124A and 505(b) of the Indian Penal Code. The magistrate sentenced the appellant to undergo rigorous imprisonment for one year, and no separate sentence was imposed for the conviction under section 505(b).

The appellant appealed to the High Court of Judicature at Patna, where a single judge, the late Mr Justice Naqui Imam, heard the matter. By an order dated 9 April 1956, the High Court upheld both convictions and the sentence, and dismissed the appeal. In his judgment, the judge observed that the charge against the appellant amounted essentially to a vilification of the Government, was full of incitements to revolution, and that the speech as a whole was certainly seditious. The judge clarified that the speech was not a mere criticism of Government measures, and held that the offences under sections 124A and 505(b) were duly made out.

The appellant then moved this Court and obtained special leave to appeal. It was noted that the constitutionality of the provisions under which the appellant had been convicted had not been canvassed before the High Court. In the petition for special leave, the appellant argued that sections 124A and 505 of the Indian Penal Code were inconsistent with Article 19(1)(a) of the Constitution.

The appeal was first heard by a Division Bench on 5 May 1959. The bench observed that the counsel for the appellant had raised the constitutional issue concerning the validity of sections 124A and 505, and therefore directed that the appeal be referred to a Constitution Bench. The matter was placed before a Constitution Bench on 4 November 1960, at which time the bench ordered that a notice be issued to the Attorney General of India.

After issuing notice to the Attorney General under Rule 1, Order 41 of the Supreme Court Rules, the matter was again placed before a Constitution Bench on 9 February 1961. The Bench adjourned the case for two months so that the State Governments involved in this appeal, as well as in the related criminal appeals numbered 124 to 126 of 1958—where the Government of Uttar Pradesh acted as the appellant—could consider their positions on the prosecutions. The adjournment was also intended to allow the Court to take into account a report indicating that the Law Commission was examining a possible amendment to the law of sedition in light of the new constitutional framework. Since the concerned States had instructed their counsel to pursue the appeals, the matters finally returned for consideration before the Court. In the set of criminal appeals 124‑126 of 1958, the State of Uttar Pradesh is the appellant, though the respondents differ in each case. In criminal appeal 124 of 1958, the accused is identified as Mohd Ishaq Ihahi, who had delivered a speech in Aligarh on 30 October 1953 while serving as Chairman of the Reception Committee of the All India Muslim Convention. That speech was deemed seditious. After the required governmental sanction, a Magistrate conducted an inquiry, found a prima facie case, and committed the accused to the Court of Sessions. The Sessions Judge, in a judgment dated 8 January 1955, acquitted the accused of the charge under Section 153A of the Indian Penal Code but convicted him under Section 124A, imposing rigorous imprisonment for one year. The convicted individual appealed to the High Court, where the constitutionality of Section 124A was contested. In criminal appeal 125 of 1958, the facts concern a meeting of the Bolshevik Party held on 29 May 1954 in the village of Hanumanganj, District of Basti, Uttar Pradesh. The respondent, Rama Nand, was found to have delivered a speech advocating the use of violence to overthrow the law‑established Government. Following governmental sanction, a Magistrate held an inquiry and committed the matter to the Sessions Court, which convicted the accused under Section 124A and sentenced him to rigorous imprisonment for three years, holding that he had incited an open violent rebellion against the Government by means of arms. The accused appealed this conviction and sentence to the High Court of Allahabad. In criminal appeal 126 of 1958, the respondent Parasnath Tripathi was alleged to have delivered a speech on 26 September 1955 in the village of Mansapur, Police Station Akbarpur, District of Faizabad, in which he is said to have exhorted the audience to organise a volunteer army and to resist the Government and its servants by violent means, and to have stirred hatred and enmity against the Government. He was tried for an offence under Section 124A, and subsequently filed a writ of habeas corpus in the High Court of Judicature at Allahabad, contending that his detention was illegal because Section 124A was void for contravening his fundamental right to free speech and expression under Article 19(1)(a) of the Constitution. Together with appeals 124 and 125, these matters were ultimately placed before a Full Bench comprising Justices Desai, Gurtu and Beg, who, in separate but concurring judgments, held that Section 124A of the Indian Penal Code was ultra vires Article 19(1)(a) of the Constitution.

In the speech delivered by the accused, he urged the listeners to form a volunteer army and to resist the Government and its officers through violent means. He was also alleged to have stirred the audience with the purpose of creating hatred and hostility toward the Government. When the accused was prosecuted under section 124A of the Indian Penal Code, he filed a petition for a writ of habeas corpus in the High Court of Judicature at Allahabad, asserting that his detention was unlawful because section 124A violated his fundamental right to free speech and expression guaranteed by article 19(1)(a) of the Constitution. The petition, together with appeals numbered 124 and 125, was eventually placed before a Full Bench comprising Justices Desai, Gurtu and Beg. Each of these judges rendered separate but agreeing opinions in which they concluded that section 124A was beyond the powers conferred by article 19(1)(a). Accordingly, they set aside the convictions in the two appeals and acquitted the accused persons, and they also granted the habeas‑corpus petition in criminal appeal number 126. The High Court, in each of these matters, issued a certificate stating that important questions of constitutional interpretation were involved, thereby permitting the appeals to proceed before this Court on the basis of a certificate of fitness.

Advocate C B Agarwala, appearing for the State of Uttar Pradesh, argued against the acquittals and challenged the Full Bench decision reported in Ram Nandan v State, in which the High Court held that section 124A was ultra vires article 19(1)(a) and therefore void because it was not necessary for public order and the restrictions imposed were not reasonable. He contended that the impugned provision fell within the saving clause of article 19(2), and that the High Court’s reasons were mistaken. To support his position, he referred to the Federal Court’s observations in Niharendu Dutt Majumdar v The King Emperor, as well as to Stephen’s Commentaries on the Laws of England, volume IV, 21st edition, page 141, and the Statement of the Law in Halsbury’s Laws of England, third edition, volume 10, page 569, together with the cases cited therein. Counsel Gopal Behari, representing the respondents in the Allahabad cases, relied entirely on the Full Bench decision of the Allahabad High Court in support of his clients. Similarly, counsel Sharma, appearing for the appellant in the appeal from the Patna High Court, also placed reliance upon that same Full Bench judgment.

In this case, before addressing the arguments presented by the parties, the Court found it appropriate to outline the historical development of section 124A, the amendments it has undergone, and the way Indian courts and the Judicial Committee of the Privy Council have interpreted its provisions. The provision now known as section 124A originated as section 113 in Macaulay’s Draft Penal Code of 1837‑39. However, when the Indian Penal Code was enacted in 1860, that particular section was omitted. The precise reason for this omission is not evident from the legislative record, although it may be inferred that the legislators were uncertain about their authority to incorporate such a provision at that time. Regardless of the earlier omission, section 124A finally entered the statute books in 1870 through Act XXVII of that year. At the time of its introduction, Sir James Stephen engaged in considerable parliamentary discussion, but the substance of his remarks during the bill’s introduction is not material to the present analysis. The text of the section as it was originally enacted reads as follows: “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.” The earliest Indian case decided under this provision is commonly referred to as the Bangobasi case, reported as Queen‑Empress v. Jagendra Chunder Bose. That trial was conducted before a jury presided over by Chief Justice Sir Comer Petheram. In directing the jury, the learned Chief Justice explained the meaning of the relevant terms, stating: “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 man’s 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…”

The Court explained that when a person, on an occasion that may arise, intentionally uses words with the purpose of creating a disposition of disaffection in the minds of his bearers or readers, he commits the offence of attempting to excite disaffection as defined in the section, even though his words do not actually bring about any disturbance or any feeling of disaffection. For the purpose of the provision it is sufficient that the words employed are calculated to arouse ill will against the Government and to raise the Government to the level of hatred and contempt in the minds of the people, provided that the speaker used those words with the intention of creating such feelings. The Court then referred to the celebrated case of Queen‑Empress v. Balqanqaddhar Tilak, which was heard in the Bobay High Court before a jury and by Justice Strachey. In his charge to the jury, Justice Strachey set out the law in the following 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.”

Justice Strachey continued by stating that the law forbids a person from exciting or attempting to excite any such feelings, that the intensity or amount of disaffection is immaterial except for the purpose of determining punishment, and that a person is guilty under the section whether the feelings excited are great or small. He further observed that it is irrelevant whether the publication in question actually succeeded in arousing disaffection. He noted that the charge before the jury was that each accused had actually excited feelings of disaffection in the Government. If the jury were satisfied of that fact, they would find the accused guilty. However, even if the charge of actual excitement were not proved and no one was shown to have been moved to feel disaffection by reading the articles, that would not justify an acquittal because each accused also faced the charge of attempting to excite such feelings. The section, he explained, places successful excitation and unsuccessful attempts on exactly the same footing, so that if the jury found that an accused had tried to excite disaffection in others, they must convict him even in the absence of any proof that the disaffection was actually created.

In this case, the Court stressed that the offence under section 124A was defined by the act of exciting or attempting to excite in other persons feelings of enmity toward the Government. The provision did not require that the accused actually incited mutiny, rebellion, or any actual disturbance, whether large or small. The Court further clarified that it was irrelevant whether the articles in question had caused any disturbance or outbreak. If the accused had intended the articles to provoke rebellion or disturbance, such conduct would unquestionably fall within section 124A and might also attract other provisions of the Penal Code. However, even where the accused neither succeeded in nor intended to provoke rebellion, disturbance, or forcible resistance to governmental authority, a conviction was still warranted. Such liability arose if the accused had attempted to arouse feelings of enmity toward the Government. The Court noted that some learned persons had argued that liability under the section could arise only where the accused counselled or suggested rebellion or forcible resistance. The Court rejected that view, holding that it contradicted the plain language of the statute, which expressly made the excitement or attempted excitement of certain feelings. It further stated that the test of guilt was not the inducement of any rebellious act. The Court attributed the contrary opinion to a misreading of the statutory explanation and to extending that explanation beyond its proper scope. The quotation of this passage was retained because it later attracted extensive comment and judicial notice. The original charge to the jury concerning the explanation of section 124A was omitted from the record, as later jurisprudence replaced it with three distinct explanations. The jury, by a majority of six to three, returned a guilty verdict against Shri Balgangadhar Tilak. Following the conviction, Tilak filed an application under clause 41 of the Letters Patent seeking leave to appeal to the Privy Council. The application was heard before a Full Bench composed of Chief Justice Farran, and Justices Candy and Strachey. At the leave stage before the High Court, it was contended, among other matters, that the Government’s sanction was legally insufficient because it failed to specify the particular offending articles. It was also argued that the trial judge had misdirected the jury on the meaning of the word “disaffection” by suggesting it could be equated with “absence of affection”. Regarding the second contention, which was the only point before this Court, the Full Bench expressed its view. It stated that the other ground on which Mr. Russell sought certification that the case was fit for appeal to Her Majesty in Council was the alleged misdirection.

In the application the appellant relied on one principal ground and two subsidiary grounds. The principal ground asserted that the statutory provision could not be said to have been violated unless there was a direct incitement to stir up disorder or rebellion. The Court observed that such an interpretation extended far beyond the language of the provision and therefore required no further comment. The first subsidiary ground concerned the direction of Mr. Justice Strachey to the jury, wherein he described the term “disaffection” as meaning “the absence of affection”. The Court acknowledged that, if taken in isolation, that phrase might have misled the jury; however, when considered in the full context it was impossible for the jury to have been misled. The phrase was employed in connection with the law as articulated by Sir Comer Petheram in the Bangobashi case, where the Chief Justice used the wording “contrary to affection” rather than “absence of affection”. The Court held that had “contrary to affection” been used in the present case, the summing‑up would have been unquestionably correct. Nonetheless, within the overall context the expression “absence of affection” was not intended to convey a simple negation of affection but rather an active sentiment opposed to the Government. Consequently, the Court concluded that it could not certify the case as fit for appeal on that point, noting also that no allegation of a miscarriage of justice had been made. After these observations the Full Bench denied the application for leave, and the matter subsequently proceeded to the Judicial Committee of the Privy Council by way of an application for special leave to appeal.

Before the Judicial Committee, counsel for the appellant, including a senior advocate and other experienced practitioners, contended that a misdirection had occurred concerning the interpretation of section 124A of the Penal Code. They argued that the offence had been defined too broadly, equating “disaffection” merely with “absence of affection” and thereby encompassing every conceivable form of ill feeling toward the Government. Their submission referenced the observations of Chief Justice Petheram in Queen‑Empress v Jogender Bose. The counsel further maintained that the appellant’s statements did not exceed what, under English law, would be considered within the legitimate functions of a public journalist, and that the alleged misdirection was of paramount importance not only to the individual concerned but also to the entire Indian press, the liberty of the press, and the right of all subjects of Her Majesty to speak freely in public meetings. Despite the forceful advocacy for special leave, the Lord Chancellor, delivering the opinion of the Judicial Committee, dismissed the application, ending the appeal at that stage.

The application for leave to appeal was dismissed. The judges noted that, after considering the entire summing‑up, they found no reason to disagree with it. In applying the established principles that govern the grant of leave in criminal matters, they concluded that the case did not present any questions that warranted further examination by the Judicial Committee of the Privy Council. The judges referred to the earlier authority in Gangadhar Tilak v. Queen Empress to support this approach. Before turning to later statutory developments, they indicated the need to discuss the Full Bench decision of the Allahabad High Court in the matter of Queen Empress v. Amba Prasad. In that decision, the Chief Justice, Edge, delivered the judgment and quoted extensively from the earlier rulings of the Calcutta and Bombay High Courts that had been mentioned previously. While generally accepting the reasoning of those two courts, the Chief Justice observed that a person could be guilty of the offence defined in section 124A for attempting to arouse disaffection against the Government established by law in British India, even if, in the same article or speech, he advocated the desirability or expediency of obeying and supporting the Government.

The Chief Justice also referred to the Bombay High Court ruling in the Satara case. In that case a Full Bench consisting of Chief Justice Farran and judges Parsons and Ranade held that the term “disaffection” in the section must be understood in a special sense, namely as political alienation, discontent, or disloyalty to the existing authority. The bench further held that the meaning of “disaffection” in the principal part of the section was not altered by the explanatory clause. Judge Persons explained that “disaffection” could not be construed merely as the absence of affection or love. Judge Ranade elaborated that the word signified more than a simple lack of goodwill; it denoted a positive feeling of aversion, akin to ill will, a definite act of insubordination, an effort to alienate the people and weaken the bond of allegiance, a sentiment that tended to bring the Government into hatred and discontent by imputing base and corrupt motives to it. The Chief Justice of Allahabad observed that if any interpretation differed from the construction advanced by Strachey, J., which had been endorsed by the Judicial Committee of the Privy Council, the later observations of the Bombay High Court could not be regarded as binding. Since the accused in the Allahabad case had pleaded guilty and the appeal primarily concerned the sentence, the judges felt it unnecessary to examine the detailed implications of the section, although they expressed general agreement with the views expressed by the Calcutta and Bombay High Courts in the earlier cases. The discussion then turned to the amendment of the section, which was effected by the Indian Penal Code Amendment Act (IV of 1898).

The Indian Penal Code was amended by the Indian Penal Code Amendment Act (IV of 1898). That amendment replaced the single explanation that originally accompanied Section 124A with the three separate explanations that are in force today. The language of Section 124A, as it presently appears, is the product of a series of amendments made through the amendment orders of 1937, 1948 and 1950, each of which responded to constitutional developments introduced by the Government of India Act, 1935, the Independence Act of 1947 and the Constitution of India of 1950. After those successive adaptations, Section 124A reads: “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 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 states that the term “disaffection” includes disloyalty and all feelings of enmity. Explanation 2 clarifies that comments which merely express disapproval of governmental measures with a view to obtaining their alteration by lawful means, without seeking to excite hatred, contempt or disaffection, do not constitute an offence under this section. Explanation 3 provides that comments expressing disapproval of administrative actions of the Government, again without attempting to excite hatred, contempt or disaffection, are not offences under this provision. This provision, commonly referred to as the offence of sedition, is located in Chapter IV of the Indian Penal Code, which is headed “Of offences against the State.” The offense was not invented by the British administration in India; similar statutes have existed in England for centuries. Every State, irrespective of its form of government, must possess the authority to punish conduct that threatens the safety and stability of the State or spreads disloyal sentiments that could lead to disruption or public disorder. In England, the crime of sedition has been described by Stephen in his Commentaries on the Laws of England (21st Edition, volume IV, pages 141‑142) as conduct that falls short of treason and does not involve force or violence, yet seeks to reconcile the right of private criticism with the necessity of protecting the State’s safety and stability. Sedition is defined as conduct that, either as its purpose or its natural consequence, unlawfully displays dissatisfaction with the Government or the existing social order, and such conduct may be expressed by words, deeds or written acts.

The Court explained that the purpose of the accused could be described in five distinct ways. First, the accused might aim to stir up disaffection against the King, the Government, the Constitution, Parliament, or the administration of justice. Second, the accused might try, by unlawful means, to bring about any change in the Church or the State. Third, the accused might attempt to incite a disturbance of the peace. Fourth, the accused might seek to raise discontent among the subjects of the King. Fifth, the accused might endeavor to excite hatred between classes. The Court observed that merely expressing criticism on political matters did not, by itself, constitute sedition; the decisive factor was the manner in which such criticism was expressed. Honest and candid discussion was allowed, and the law intervened only when the discussion crossed the limits of fair criticism, especially when the natural result of the accused’s conduct was to promote public disorder. This formulation of the law was mainly drawn from the address to the jury delivered by Fitzgerald, J., in the case of Reg v. Alexander Martin Sullivan. In that address, the learned judge stated that sedition was a crime against society, closely related to treason, and often preceded treason by a short interval. He described sedition as a broad term that covered all practices, whether by words, deeds, or writing, which were calculated to disturb the tranquility of the State and to lead ignorant persons to try to subvert the Government and the laws of the empire. He further explained that the objects of sedition generally included inducing discontent and insurrection, stirring opposition to the Government, and bringing the administration of justice into contempt, with the tendency of sedition being to incite people to rebellion. The Court also cited the observations of Coleridge, J., in his summing‑up to the jury in Rex v. Aldred, where the judge affirmed that the law was clear: anyone who, by written or spoken language, incited or encouraged others to use physical force or violence in any public matter connected with the State was guilty of publishing a seditious libel. He explained that the ordinary meaning of “sedition” denoted tumult, insurrection, popular commotion, or uproar, and implied violence or lawlessness in some form. The learned judge was charging the jury on an indictment that included a charge of seditious libel arising from a publication by the defendant, and the matter arose under Rule 34(6)(e) of the Defence of India Rules made under the Defence of India Act (XXXV of 1939).

Maurice Gwyer, Chief Justice, speaking for the Federal Court, set out several observations in the case of Niharendu Dutt Majumdar v. The King Emperor (1). He noted that the wording of section 124A of the Indian Penal Code, which corresponded in material respect to the rule that was before the Court, had been taken from English law. He further stated that he approved of the observations made by Justice Fitzgerald in the case previously cited, and then proceeded to make a number of remarks that he regarded as highly relevant.

He quoted at length the passage that had been used in the earlier judgment, stating: “Generally speaking, we think that the passage accurately states the law as it is to be gathered from an examination of a great number of judicial pronouncements. The first and most fundamental duty of every Government is the preservation of order, since order is the condition precedent to all civilisation and the advance of human happiness. This duty has no doubt been sometimes performed in such a way as to make the remedy worse than the disease; but it does not cease to be a matter of obligation because some on whom the duty rests have performed it ill. It is to this aspect of the functions of government that in our opinion the offence of sedition stands related. It is the answer of the State to those who, for the purpose of attacking or subverting it, seek (to borrow from the passage cited above) to disturb its tranquillity, to create public disturbance and to promote disorder, or who incite others to do so. Words, deeds or writings constitute sedition, if they have this intention or this tendency; and it is easy to see why they may also constitute sedition, if they seek, as the phrase is, to bring Government into contempt. This is not made an offence in order to minister to the wounded vanity of Government, but because where Government and the law cease to be obeyed because no respect is felt any longer for them, only anarchy can follow. Public disorder, or the reasonable anticipation or likelihood of public disorder, is thus the gist of the offence. The acts or words complained of must either incite to disorder or must be such as to satisfy reasonable men that is their intention or tendency.”

He further explained that this statement of the law had not been endorsed by the Lords of the Judicial Committee of the Privy Council in the case of King‑Emperor v. Sadashiv Narayan Bhalerao (1). The Privy Council, after referring to the observations of the learned Chief Justice in the Niharendu case (2), expressed disagreement with the Federal Court’s decision. It observed that England possessed no statutory definition of “sedition”, and that the meaning and content of the crime had to be derived from case law. However, the Privy Council held that such considerations were not relevant when construing the statutory definition of sedition contained in the Indian Penal Code. Accordingly, the Privy Council concluded that the language of section 124A, or of the rule in question under the Government of India Act, did not justify the statement of law that had been made by the learned Chief Justice in the Niharendu case.

The Judicial Committee of the Privy Council examined the decision of the learned Chief Justice in Niharendu’s case (1). It held that the expression “excite disaffection” did not include the expression “excite disorder.” Accordingly, the Privy Council concluded that the Federal Court’s judgment in Niharendu’s case (1) rested on an erroneous construction of section 124A of the Penal Code and of sub‑paragraph (e), sub‑rule (6) of Rule 34 of the Defence of India Rules. The Privy Council approved the dicta expressed in Bal Gangadhar Tilak (2). It also approved the dicta in Annie Basant v. Advocate General of Madras (3), a case decided under section 4 of the Indian Press Act, 1910, which resembled the language of section 124A of the Penal Code. The Council also referred to its earlier decision in Wallace Johnson v. The King (4). That case was heard under sub‑section 8 of section 326 of the Criminal Code of the Gold Coast, and it defined “seditious intention” in terms comparable to the language of section 124A of the Penal Code. In that Gold Coast case, the Privy Council held that proof of an incitement to violence was not a necessary ingredient of the offence of sedition as defined by the statute. Consequently, the Privy Council observed a direct conflict between the Federal Court’s interpretation in Niharendu’s case (1) and the interpretations articulated by the Privy Council in several Indian and Gold Coast decisions mentioned above. The Privy Council noted that either approach could be adopted and that each could be supported by sound reasons.

The Privy Council observed that the Federal Court’s reasoning depended upon the pre‑existing English common law on sedition. The Federal Court report did not indicate that the Privy Council’s earlier rulings had been brought to the attention of the Federal Court judges. For the Supreme Court, the precise question arising for determination in the present batch of cases had not previously formed the subject of a decision. Nevertheless, the Supreme Court had, in its early judgments, examined the relationship between the freedom of speech and seditious publications or utterances during the first year after the Constitution came into force. Two matters that examined the fundamental right of freedom of speech and expression, together with State statutes imposing restrictions, were Romesh Thappar v. State of Madras (1) and Brij Bhushan v. State of Delhi (2). Both cases were heard by Chief Justice Kania, and Justices Patanjali Shastri, P. Ali, Mehr Chand Mahajan, Mukherjea and Das. Their judgments were delivered on the same day, 26 May 1950. In Romesh Thappar’s case (1), the majority of the Court declared section 9(1‑A) of the Madras Maintenance of Public Order Act (Madras Act XXXIII of 1949), which authorised restrictions on the fundamental right of freedom speech, to be

In the earlier judgments, the Court declared that the provision of the Madras Maintenance of Public Order Act, which had been cited as section 9 (1‑A), exceeded the limitation established by clause (2) of article 19 of the Constitution and was therefore void and unconstitutional. Likewise, in the case of Brij Bhushan, the same majority invalidated section 7(1)(c) of the East Punjab Public Safety Act, 1949, as it applied to the Province of Delhi, because that provision also attempted to restrict the freedom of speech and expression for the purpose of preventing or combating any activity deemed prejudicial to public safety or the maintenance of public order. The Court held that both statutory provisions were beyond the legislative authority granted by clause (2) of article 19. Justice Patanjali Sastri, speaking for the majority in Romesh Thappar, subsequently offered a detailed commentary on the law of sedition in India. He observed that the word “sedition” originally appearing in article 13(2) of the Draft Constitution prepared by the Drafting Committee had been removed before the final version was enacted as article 19(2). He recalled that the Federal Court, in Niharendu Dutt Majumdar v. The King Emperor, had defined sedition to require that the acts or words complained of either incite disorder or be such that a reasonable person would conclude that the intention was to cause disorder. The Judicial Committee of the Privy Council later overruled that definition, reaffirming the view expressed in the Tilak case that the offence consisted in exciting or attempting to excite in others “certain bad feelings towards the Government” and not necessarily in inciting mutiny, rebellion, or any actual disturbance, however minor. The removal of the term “sedition” from the draft article 13(2) indicated that merely criticizing the Government or engendering disaffection was not a proper ground for restricting freedom of expression and of the press, unless such criticism threatened the security of the State or tended to overthrow it. He further noted that the corresponding Irish provision, which spoke of “undermining the public order or the authority of the State” (article 40(6)(i) of the Constitution of 1937), did not influence the framers of the Indian Constitution. Consequently, the Constitution imposed very narrow and stringent limits on permissible legislative curtailment of the right of free speech and expression, reflecting the understanding that free speech and a free press form the foundation of all democratic institutions; without free political discussion, public education essential for the proper functioning of popular government cannot occur, even though such expansive freedom may present risks of abuse.

The Court also reflected that the Constitution’s framers might have been inspired by the thoughts of James Madison, described as “the leading spirit in the preparation of the First Amendment of the Federal Constitution,” who argued that it is preferable to allow a few undesirable branches of liberty to grow naturally rather than to prune them away and thereby weaken the vigor of those that yield proper fruits, a view quoted in Near v. Minnesota. Those observations were intended to highlight the distinction between “security of the State” and “public order.” Because the phrase “public order” was absent from article 19(2) of the Constitution as originally drafted, the statutory provision relying on that phrase was struck down as unconstitutional.

In discussing the amendment of the Federal Constitution, the Court quoted a passage that argued it is preferable to allow a few troublesome branches to grow freely rather than to prune them away and weaken those that bear proper fruit, a statement cited from Near v. Minnesota. The Court used these remarks to highlight the distinction between “security of the State” and “public order.” Because the phrase “public order” was not included in Article 19(2) of the Constitution as originally drafted, the provision that relied on it was declared unconstitutional. Justice Fazl Ali dissented from the majority opinion and reiterated his views in Brij Bhushan’s case. In his dissenting judgment he wrote that, in his view, the essential question was whether “disorders involving menace to the peace and tranquillity of the Province” that affect “public safety” constitute a matter that undermines the security of the State. He explained that he was borrowing the words placed in quotation marks from the preamble of the Act, which indicated the Act’s scope and necessity, and that the challenge to the Act’s validity should be framed in that manner. He further expressed that if the answer to this question is affirmative, as he believed it must be, then the law being contested – a law that forbids the entry into the State of Madras of “any document or class of documents” for the purpose of securing public safety and maintaining public order – would satisfy the restrictions permitted under Article 19(2) of the Constitution. Justice Fazl Ali observed that the arguments presented suggested that a seditious document could be lawfully prohibited because sedition threatens the security of the State, whereas a document intended merely to disturb public tranquillity or affect public safety could not be barred, since such public disorder does not, in his view, undermine the security of the State. He stated that he could not comprehend this line of reasoning. Referring to Brij Bhushan v. The State, he cited authoritative sources demonstrating that sedition is grave because of its tendency to create disorder, noting that criminal‑law scholars such as Sir James Stephen classified sedition as an offence against public tranquillity. In the same case, Justice Fazl Ali, again dissenting, expanded his reasoning by referring to the Federal Court’s decision in Niharendu Dutt Majumdar’s case and to the contrary judgment of the Privy Council in King Emperor v. Sada Shiv Narayan. After pointing out the divergent opinions between the Federal Court of India and the Judicial Committee of the Privy Council, he explained why the term “sedition” was not expressly mentioned in Article 19(2) of the Constitution, observing that the framers of the Constitution must

The framers of the Constitution were confronted with a difficult question about whether the term “sedition” should appear in article 19(2) and, if it were to appear, in what sense it should be understood. On one side of this dilemma they were aware of a widely accepted position, supported by many authorities, which described sedition as essentially an offence against public tranquillity and as being linked in some manner to public disorder. On the other side they knew of the Judicial Committee’s pronouncement that the definition of sedition in the Indian Penal Code did not necessarily require any intention or tendency to provoke disorder. Given these conflicting perspectives, it was not surprising that the drafters chose to omit the word “sedition” from clause (2) and instead employed broader language that would encompass sedition together with any other conduct that makes sedition a serious crime. They accepted without doubt that sedition does indeed undermine the security of the State, and they also recognised that such undermining usually occurs through the medium of public disorder—a point on which eminent judges and jurists are in agreement. Consequently, it became difficult to sustain the view that public disorder or disturbance of public tranquillity are matters that do not affect the security of the State.

Because of the differing interpretations of article 19(2), Parliament subsequently amended clause (2) of article 19 through the Constitution (First Amendment) Act, 1951. Section 3 of that Act replaced the original clause (2) with the present wording and was given retrospective effect, thereby signalling acceptance of the legal position articulated in the dissenting judgment of Justice Fazl Ali. In his dissent, Justice Fazl Ali had observed that the concept of “security of the State” is closely related to the concept of “public order,” and that reasonable restrictions on freedom of speech and expression may be imposed in the interest of public order. The scope of legislative power under articles 19(1)(a) and 19(2) was later examined by a Constitution Bench of this Court in Ramji Lal Modi v. State of U.P. In that case, the court considered a challenge to section 295A of the Indian Penal Code on the ground that it imposed restrictions on the fundamental right of freedom of speech and expression beyond the limits prescribed by clause (2) of article 19. The Court remarked that the issue to be decided was whether the impugned provision could be said to impose reasonable restrictions on the exercise of the fundamental right in “the interests of public order.” The Court also noted that the amended clause uses the phrase “in the interests of” rather than “for the maintenance of,” thereby widening the ambit of permissible legislative restrictions.

In that discussion, the Court observed that the phrase “in the interests of” gives a very wide scope to protection, as noted in Debi Saron v. The State of Bihar. The Court explained that a law need not be intended expressly to preserve public order; it may still be enacted in the interests of public order. Although those observations did not directly decide the present dispute, the Court said they illuminated the extent of legislative power to place reasonable limits on the fundamental right of freedom of speech and expression. The matter before the Court concerned the compatibility of the offence defined in section 124A of the Indian Penal Code with the fundamental right guaranteed by article 19(1)(a) of the Constitution, which provides that “All citizens shall have the right … to freedom of speech and expression.” The Court recognised that this right was subject to legislative power to impose reasonable restrictions, and it referred to clause (2) of article 19 in its amended form, which states that nothing in clause (1)(a) shall affect the operation of any existing law or prevent the State from making any law that imposes reasonable restrictions in the interests of 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. The Court noted that it was not contested that the guarantee of article 19(1)(a) was not absolute, and it was common ground that the right could be subject to reasonable restrictions falling within the categories listed in clause (2), namely security of the State, friendly relations with foreign States, public order, and decency or morality, among others. Turning to the constitutionality of sections 124A and 505 of the Indian Penal Code, the Court examined how far these provisions conformed to the requirements of clause (2) of article 19, particularly with respect to security of the State and public order. It observed that the sections penalise any spoken or written words, signs, visible representations or similar expressions that have the effect of bringing, or that attempt to bring, hatred or contempt, or that excite or attempt to excite disaffection towards the “Government established by law.” The Court distinguished such expressions from those made by a person who is temporarily engaged in the administration of the Government. It explained that the “Government established by law” is the visible symbol of the State, and that the very existence of the State would be jeopardised if that Government were subverted. Accordingly, the Court held that the continued existence of the Government established by law was an essential condition for the stability of the State, which was why sedition, as defined in section 124A, attracted special legislative attention.

In this case the Court observed that the offence defined in section 124A of the Indian Penal Code is placed in Chapter Six, which deals with offences against the State. Consequently, any act that falls within the meaning of section 124A and that has the effect of undermining the Government by bringing it into contempt or hatred, or by creating disaffection toward it, is covered by the penal provision. The Court explained that the feeling of disloyalty to the Government established by law or the presence of enmity toward it brings with it a tendency to public disorder, either through the use of actual violence or by incitement to violence. In other words, any written or spoken words that contain an implicit intention to overthrow the Government by violent means—words that are broadly described as “revolution”—are made punishable by the said section.

The Court further noted that the statute deliberately excludes from its reach strong language used merely to express disapproval of Government measures when such disapproval is aimed at improvement or alteration through lawful means. Likewise, comments, even if strongly worded, that criticize the actions of the Government without arousing feelings that would lead to public disorder or violence are not penalised. The Court therefore distinguished disloyalty to the Government established by law from the act of voicing strong criticism intended to ameliorate conditions for the people or to secure lawful changes; the latter does not involve the generation of enmity or disloyalty that would prompt violent public disorder.

The submissions before the Court did not argue that a speech or writing which incites violence or tends to create public disorder would escape the definition of sedition. Rather, the contention was that a person who delivers a very strong speech or employs vigorous language in a writing that severely criticises Government measures or the actions of public officials might also fall within the scope of the penal provision. The Court, however, expressed the opinion that such strong words, when used merely to convey criticism, lie outside the ambit of section 124A.

In addressing the broader context, the Court observed that the security of the State depends on maintaining law and order, which is the fundamental purpose behind legislation intended to punish offences against the State. At the same time, such legislation must fully protect and guarantee the freedom of speech and expression, which is indispensable to the democratic system established by the Constitution. The Court, as the guardian of fundamental rights, bears the duty of striking down any law that unduly restricts the freedom of speech and expression that is under consideration in this matter. Nevertheless, the Court emphasized that this freedom must be safeguarded against becoming a licence for vilification and condemnation of the Government established by law when such expression incites violence or tends to create public disorder.

The Court explained that the Constitution does not grant a licence to vilify or condemn the Government that has been established by law when such expression is made in words that incite violence or have the tendency to create public disorder. It affirmed that every citizen may say or write whatever he wishes about the Government or its policies, provided that his criticism or comment does not encourage people to use violence against the Government established by law, nor is it intended to bring about public disorder. Accordingly, the Court said that it has a duty to draw a clear line between the scope of the fundamental right guaranteed to citizens by Article 19(1)(a) of the Constitution and the authority of the legislature to impose reasonable restrictions on that right in the interest of, among other things, the security of the State and the maintenance of public order. The Court therefore needed to examine how far Sections 124A and 505 of the Indian Penal Code could be said to fall within the permissible limits of legislative power.

The Court noted that, if it follows the view expressed by the Federal Court in Niharendu Dutt Majumdar v. The King Emperor, the essence of the offence of “sedition” is incitement to violence or a tendency or intention to create public disorder through spoken or written words that have the effect of bringing the Government established by law into hatred or contempt, or of creating disaffection in the sense of disloyalty to the State. The Federal Court’s reasoning aligns the Indian provision with the English law of sedition as it was intended by the legislators when they introduced Section 124A into the Indian Penal Code in 1870. Under that interpretation, the provision would be within the permissible limits laid down in Clause (2) of Article 19 of the Constitution. However, the Court observed that if one gives a literal meaning to the words of the section, detached from the historical background in which the law of sedition developed and as interpreted in several decisions of the Judicial Committee of the Privy Council, the provision would not only fall within the limits of Clause (2) but would actually exceed those limits. In view of the conflicting authorities of the Federal Court and the Privy Council, the Court said it must decide whether, and to what extent, Sections 124A and 505 of the Indian Penal Code have to be declared unconstitutional.

The Court further stated that if it accepts the Federal Court’s interpretation—that the criminality of alleged sedition lies in incitement to disorder, a tendency or likelihood of public disorder, or a reasonable apprehension of such disorder—then the section may be situated within the ambit of permissible legislative restrictions on the fundamental right of freedom of speech and expression. Nevertheless, the Court acknowledged that, apart from the protection afforded by Clause (2) of Article 19, Sections 124A and 505 are clearly violative of the guarantee of free speech guaranteed by Article 19(1)(a). The Court then turned to consider how far the saving clause in Clause (2) could protect those provisions from being struck down as unconstitutional.

The Court first indicated that it was necessary to examine the extent to which the saving provision, namely clause (2) of Article 19, protected the statutory provisions under consideration. It reiterated that, according to the amended wording of clause (2) quoted earlier, the phrase “in the interest of public order” possessed a very broad amplitude and was substantially more expansive than the narrower expression “for the maintenance of” that had been employed in earlier decisions, a distinction previously observed by the Court in Virendra v. State of Punjab. Consequently, any legislation enacted “in the interest of public order” could be insulated from a finding of constitutional invalidity. The Court then considered the contrary hypothesis: if it were to be held that the offence of sedition could be completed merely by the use of words—whether written or spoken—that created disaffection or engendered feelings of enmity toward the Government, even in the absence of any tendency to disturb public peace or any intention to provoke law‑and‑order disruption, such an interpretation would render the provisions unconstitutional when read in light of Article 19(1)(a) together with clause (2). The Court noted the well‑settled principle that, where one construction renders a statutory provision consistent with the Constitution and an alternative construction would make it inconsistent, the preferred approach is the former. By reading the sections, together with their explanatory provisions, as a whole, the Court found that they were directed solely at penalising conduct that was intended, or had a tendency, to create disorder or to disturb public peace through the resort to violence. It further observed that the explanations attached to the main body of the sections clarified that even strong criticism of public measures or pointed commentary on Government action fell within reasonable limits and did not clash with the fundamental right to freedom of speech and expression.

The Court explained that the statute intervened only when the words—whether written, spoken, or otherwise—exhibited a pernicious tendency or an intention to generate public disorder or disturb law and order, and that in such circumstances the law acted to prevent those activities in the interest of public order. In this construction, the Court held that the provisions struck an appropriate balance between the individual's fundamental rights and the collective interest in maintaining public order. Moreover, the Court reaffirmed the established rule that statutory interpretation must go beyond a literal reading of the words and must consider the legislative history, the purpose of the enactment, and the mischief it was intended to suppress. It referred to the authorities in Bengal Immunity Company Limited v. State of Bihar and R.M.D. Chamarbaugwalla v. Union of India to illustrate this interpretative approach. Viewed in that perspective, the Court expressed no hesitation in construing the impugned sections so that their application would be confined to acts that involve an intention or tendency to create disorder, disturb law and order, or incite violence. The Court also indicated that it could further contemplate the legal position that would arise assuming that the principal provision, Section 124A, could be read in its literal sense, without extending its reach beyond the scope justified by the constitutional saving clause.

The Court observed that the Judicial Committee of the Privy Council had already interpreted the provision in the authorities previously cited. On the basis of that earlier interpretation, the Court held that it could not remodel the meaning of the section simply to evade the claim of unconstitutionality by narrowing its scope in the manner that the Federal Court had originally intended. The Court further noted that a number of its own judgments provided ample support for adopting this position on the legal issue. In particular, the Court referred to the decision in R M D Chamarbaugwalla v. The Union of India, where it had carefully examined a series of rulings from this Court as well as precedents from courts in the United States and Australia. After a detailed review of those authorities, the Court concluded that whenever the contested provisions of a statute could be construed so that they fell within the legislature’s constitutional competence, the Court would prefer that construction and would limit the operation of the statute accordingly, rather than adopt an alternative construction that would render the provisions unconstitutional. The Chamarbaugwalla case required the Court to decide between two possible meanings of the expression “Prize Competitions”: one definition confined the term to competitions of a gambling nature, while the other definition excluded gambling contests. The Court adopted the former meaning, thereby preserving the validity of the remaining provisions of the Prize Competitions Act (XLII of 1955), especially sections 4 and 5 and Rules 11 and 12 made under the Act. Accordingly, the Court held that the penal provision applied only to competitions that involved gambling, and that competitions whose outcomes depended largely on skill were excluded from the Act’s reach. The Court explained that the principle articulated in that decision—limiting a statute to the category of activities contemplated by the Federal Court, namely incitement to violence, or conduct that intended or tended to create public disorder or disturb public peace—was directly applicable to the matter presently before it.

The Court stated that it was unnecessary to revisit in detail the authorities discussed at length in the Chamarbaugwalla judgment, particularly those spanning pages 940 to 952 of the reported case. Nevertheless, the Court added that the sections under challenge imposed restraints on the fundamental right to freedom of speech and expression, but those restraints were justified by the necessity of maintaining public order and therefore fell within the permissible scope of legislative interference with that right. Turning to the specific question of the constitutionality of section 505 of the Indian Penal Code, the Court observed that a brief analysis of each of the three clauses of the section would reveal that the essential element of the offence consisted of making, publishing or circulating any statement, rumor or report. The Court indicated that each clause required the statement to be made with an intention—or a likelihood—to cause a specific harmful result, such as encouraging mutiny among members of the armed forces, creating fear or alarm among the public that might lead to an offence against the State or public tranquillity, or inciting one community to commit an offence against another community. By emphasizing that every component of the offence directly affected the security of the State or public order, the Court concluded that the provisions of section 505 did not go beyond the reasonable restrictions permissible under article 19(2) of the Constitution, and therefore remained constitutionally valid.

The Court described the offence punishable under section 505 of the Indian Penal Code as the making, publishing or circulating of a rumour or report that falls within one of three categories. The first category, identified as clause (a), covered any statement made with the intention of causing, or that was likely to cause, a member of the Army, Navy or Air Force to mutiny, to disregard his duty or to fail in the performance of his duties. The second category, labelled clause (b), included any statement intended to cause fear or alarm to the public or to any particular section of the public, where such fear or alarm could induce the commission of an offence against the State or against public tranquillity. The third category, identified as clause (c), encompassed any statement that incited, or was likely to incite, one class or community of persons to commit an offence against another class or community. The Court observed that each of these constituent elements of the offence under section 505 directly related to, and had a clear impact upon, the security of the State as well as public order. Consequently, the Court concluded that the provisions of section 505 did not overstep the limits of reasonable restrictions that may be placed on the fundamental right of freedom of speech and expression. In the Court’s view, clause (2) of Article 19 of the Constitution therefore preserved the statutory provision from any claim of unconstitutionality.

The Court noted that neither the appellant in Criminal Appeal 169 of 1957 nor the respondents in Criminal Appeals 124 to 126 of 1958 had contended that the words used in their respective cases fell outside the scope of the definition of sedition as interpreted by this Court. No submissions were made to demonstrate that, even when applied according to the Court’s interpretation, the facts of the cases did not fall within the mischief sought to be prevented by either of the statutory sections involved. Because no such arguments were presented, the Court determined that the appeal numbered 169 of 1957 must be dismissed. The Court further ordered that Criminal Appeals 124, 125 and 126 of 1958 be remanded to the High Court, directing the High Court to pass any order it deemed appropriate and proper in light of the interpretation provided by this Court. Accordingly, Appeal No. 169 of 1957 was dismissed, while Appeals Nos. 124 to 126 of 1958 were allowed.