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Mistake of Fact as Defence

The defence of intoxication/ drunkenness in India and England
Sedition
Print this
TABLE OF CONTENTS
1. TABLE OF CONTENTS
1.
2. TABLES OF CASES AND STATUTES 2.
3.
INTRODUCTION
3.
4. RESEARCH METHODOLOGY
5.
5. MEANING AND INTERPRETATION OF SECTION 124A
THE LAW OF SEDITION IN INDIA BEFORE 1947 7.
6. MEANING AND INTERPRETATION OF S. 124A
AFTER INDEPENDENCE
12.
7. LAWS OF SEDITION IN INDIA, ENGLAND, AND THE
UNITED STATES OF AMERICA A COMPARATIVE STUDY 14.
8.
CONCLUSION
20.
9.
BIBLIOGRAPHY
22.
TABLE OF CASES
1. Annie Besant v. Advocate General of Madras, (1919) 46 IA 176.

2. Bilal Ahmad Kaloo v. State of Andhra Pradesh, (1997) 7 SCC 431.

3. John Francis Noto v. United States, 367 US 290, 6 L. Ed. 836.
4. Kedar Nath Singh v. State of Bihar, AIR 1962 SC 955.
5. King-Emperor v. Sadashiv Narayan, (1947) 74 IA 89.
6. Niharendu Dutt Majumdar v. Emperor, AIR 1942 FC 1.
7. Queen Empress v. Jogendra Chunder Bose, ILR 19 Cal 35.
8. Queen-Empress v. Bal Gangadhar Tilak, ILR 22 Bom 112.
9. R. v. Caunt (unreported).
10.
R. v. Chief Metropolitan
Choudhury, [1991] 1 All ER 306.

Stipendiary

Magistrate,

11.

R. v. Collins, (1839) 9 C&P 456.

12.

R. v. Edwards, [1983] Crim LR 539.

13.

Raghubir Singh v. State of Bihar, AIR 1987 SC 149.

14.

Ram Chandra v. Emperor, AIR 1930 Lah 371.

15.

Reg. v. Alexander Sullivan, (1868) 11 Cox CC 44.

16.

Scales v. United States, 367 US 203, 6 L. Ed. 782.

17.

Tara Singh Gopi Chand v. The State, AIR 1951 Punj 27.

18.

Wallace-Johnson v. R, [1940] 1 All ER 241.

19.

Yates v. United States, 354 US 298, 1 L. Ed. 1356.

TABLE OF STATUTES
1. Indian Penal Code, 1860. (India)
2. Prevention of Terrorism Act, 2002. (India)
3. Smith Act. (United States)

ex

4. Uniting and Strengthening America by Providing Appropriate Tools

Required to Intercept and Obstruct Terrorism (USA PATRIOT) Act, 2001.
(United States)
INTRODUCTION
It is enough to say that in this country and in this generation the time for
prosecuting political libels has passed, and does not seem likely to return
within any definable time

Stephen, History of Criminal Law[1]

This statement was made in the context of the United Kingdom by a wellknown author on criminal law. More than 50 years after independence, it may
well be said that the time for prosecuting political libel has passed in India
too. This may be particularly true of a particular species of libel know as
sedition. Simplistically defined sedition is the defamation of the State and
the government with certain peculiar characteristics[2].
In India the Sedition is defined as an offence under the Indian Penal Code in
Section 124A. This Section was omitted from the original draft of the Code
and was introduced ten years after the Code was enacted. It was further
amended in 1898 and several explanations were added to the original
section.
This project aims to elaborate on the changing interpretation of the meaning
of Sedition under the Indian Penal Code. The meanings of the various terms
of S. 124A have been the subject of judicial scrutiny over the years beginning
in the 19th Century.
This project also looks at the interpretation of sedition as an offence in light
of the historical context, keeping in mind that the section is an element of
the criminal law introduced by the British, but with a long history in English
Law before it came to India.
There are also certain aspects of constitutional law that are of importance in
any discussion about Sedition. This is with particular reference to the right to
free speech that is guaranteed under Article 19(1)(a) of the Indian
Constitution and the relation to that right with sedition, which has not
expressly been made a part of the restrictions on free speech enumerated in
Article 19(2) of the Constitution.
The project aims to make a comparative study of Indian and English Laws of
Sedition. Some of the difficulties in such a comparison may be highlighted
during the course of the project. These difficulties may arise in the light of

judicial interpretation and the differing scopes of the offence under both
laws.
An attempt will be made to look at recent judicial decisions in the area of
sedition. The main focus of the project will be the change of interpretation
with a change in circumstances.
A short section will be dedicated to the possible ramifications of recent
events and the heightened state of alarm due to the rise of terrorist activities
around the globe.
Before completing this short introduction it would be appropriate to set out
the provisions of S.124A, references to which will have to be made
repeatedly through the course of this project.
S. 124A Sedition. Whoever by words, either spoken or written, or by
signs, or by visible representations or otherwise, brings or attempts to bring
into hatred or contempt, or excites or attempts to excite disaffection towards
the Government established by law in India, shall be punished with
imprisonment for life, to which fine may be added, or with 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
feeling of enmity.
Explanation 2 Comments expressing disapprobation of the measures of
the government with a view to obtain by lawful means, without exciting or
attempting excite hatred, contempt or disaffection, do not constitute an
offence under the 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 the
section.
RESEARCH METHODOLOGY

AIMS AND OBJECTIVES:

The main aims and objectives of this project are to examine the law of
sedition. This investigation has several aspects. The first is an examination of
the meaning of sedition and the interpretation of S. 124A of the Indian Penal
Code in the courts of law. In the light of these interpretations an attempt has
been made to discern the various ingredients of the offence. There is also the
broader aim of examining why sedition is an offence.

The other important objective is to make a comparative study of some

aspects of the law of sedition in India, England and the USA. An attempt has
been made to look at recent developments and case law.

SCOPE AND LIMITATIONS:

The law of sedition is a vast area within the criminal law. Many of the seminal
judicial decisions in the area are old English cases. The student/researcher
has unfortunately not had access to these resources. Also, while examining
English and American laws of sedition in America, greater attention has been
paid to certain aspects of the law i.e. incitement of communal hatred in
English Law, and sedition in the Communist Era of the 1950s in the United
States.

METHODOLOGY:

The methodology used in this project includes the descriptive method and
analysis through comparison. Examination of sample case law has been
central to the project.

SOURCES:

Secondary sources such as books, articles and legal digests and

encyclopaedias have been extensively used. Cases as reported in case
reporters have formed the bulk of the researchers sources.

FOOTNOTING AND STYLE:

As far as possible a uniform mode of citation has been adopted. Quotations

and sections of statutes along with case and statute names have been
italicised. The following are the broad formats that have been adhered to:
i.
Books <Name of Author, if available>, <Title> <Volume Number>
(<Editor>, <edition>, <Place of Publication>:<Publishers>, <year of
Publication>) at <page no.>.
ii.
Articles < Name of Author>, < Title of Article>, in <Volume No.>
<Name of Journal> <(Year)>, at <page no.>.
For legal digests and encyclopaedias as well as Case Reporters, the mode of
citation specified therein have been adhered to.

RESEARCH QUESTIONS:

The following research questions were raised in the course of research:

1. Why is Sedition a crime?

2. What were the varying interpretations given to S. 124A in Indian
courts?
3. What are the differences and similarities with respect to the English
and Indian laws of Sedition?
4. What are the differences and similarities with respect to the American
and Indian laws of Sedition?
5. To what extent do historical circumstances affect interpretation?
MEANING AND INTERPRETATION OF SECTION 124A
THE LAW OF SEDITION IN INDIA BEFORE 1947
As has already been stated sedition is a type of defamation. It has the
peculiar characteristic of being an act against the state. It is considered to be
an offence because it undermines the authority of the State. It is usually
committed by a member of private society, because he dislikes something
that is done, and insults the Sovereign, the Government, or the State and
defies the authority of the majority. The important factor is its tendency to
produce or incite public mischief.
We may now look at some of the main ingredients of the offence of Sedition
as defined in the Indian Penal Code.
1.1 Ingredients of Sedition:
In India, Sedition is expressly defined under S. 124A of the Indian Penal Code.
It must be kept in mind that the definition of Sedition in India is narrower
than it is in England.
From the definition given under the Code, the following ingredients of the
offence of Sedition may be extracted[3]:
a. Bringing into hatred or contempt, or attempting to bring into hatred or
contempt the Government established by law in India,
b. Excites, or attempts to excite disaffection against the Government
established by law in India,
c. By words, either spoken or written, or by signs, or by visible
representations or otherwise.

The explanations appended to the section throw more light on some of the
terms given in the section, and what does or does not constitute sedition.
For instance the word disaffection is broadly defined with an inclusive
definition. It includes disloyalty and all feelings of enmity against the
Government/State. Explanations 2 and 3 draw distinctions between what
might be loosely termed as fair comment or warranted criticism or opinion
of a person against either the measures or administrative actions of the
Government, and sedition.
The explanations appended to S. 124A suggest that incitement or attempting
to incite hatred contempt or disaffection are essential elements of the
offence of sedition.
1.2 Interpretation of S. 124A in Case Law:
The interpretation of S. 124A has by no accounts been uniform in any sense
of the word before and after India gained independence. These varying
interpretations have arisen out of the historical circumstances of the time.
1.2.1 Early Interpretation of S.124A: The Tilak Case:
If one were to broadly differentiate the various interpretations of S.124A on
the basis of the scope of the section under each interpretation of the words
of the section, it could possibly be classified into two broad types.
The first type would be the broad or the wide interpretation of the words of
the section. It is wide/broad in so far as it brought more acts within the
scope of the offence of the section. It is this type interpretation that this
section deals with.
Perhaps the most famous case in this area is Queen-Empress v. Bal
Gangadhar Tilak[4]. Mr Tilak, a famous figure in Indias struggle for freedom
was the editor of two journals. He published a column narrating the killing of
a Mughal General, Afzul Khan by the maratha hero Shivaji and a poem
entitled Shivajis Utterances, among other works on the occasion of a
commemorative festival. The relevant portion of the publication reads as
follows
What a desolation is this! Foreigners are dragging our Lakshmi violently by
the hand by means of persecution; along with her plenty has fled and after
that health also. This wicked misfortune personified stalks with famine
through the whole country; relentless dearth moves about spreading the
epidemics of disease

do not circumscribe your vision like a frog in a well. Get out of the Penal
Code, enter into the high atmosphere of the Shrimat Bhagawatgita and then
consider the actions of great men.[5]
Strachey, J. in his direction to the jury in this case said that that in order to
satisfy the ingredient of disaffection the person must excite or attempt to
excite and must make other people feel enmity of any kind against the
Government. The amount of disaffection was to be absolutely immaterial in
the decision, nor was it important whether any actual feelings of disaffection
were created amongst the audience or not.
The learned judge rejected the contention of the accused that there can be
no offence against the section unless the accused counselled or suggested
rebellion or forcible resistance to the government. This, according to
Strachey, J was a complete misreading of the relevant section[6].
The accused appealed thereafter to the Judicial Committee of the Privy
Council by special leave[7]. The main grounds for appeal was whether the
direction of the jury that disaffection meant absence of affection in any
degree towards British Rule or its administrators or representatives was
correct.
The council held the direction of the judge to be correct and added that
disaffection did not mean absence of affection in the literal sense.
Thus the court interpreted the words of the section more or less literally. The
courts of India adopted this literal interpretation of S. 124A, and this was the
prevailing view for the first part of the 20th Century.
The decision of the court in Tilaks Case was subsequently followed in
another famous decision Annie Besant v. Advocate General of Madras[8].
This case dealt with S. 4(1) of the Indian Press Act that was framed similar to
S. 124A. The relevant provision said that any press used for
publishing/printing newspaper, books, or other documents containing words,
signs or other visible representations that had a tendency to bring into
hatred or contempt His Majestys governmentor any class of subjects
(either indirectly or directly, by way of inference, suggestion, metaphor,
etc.), would be liable to have its deposit forfeited.
In this case an attack was levelled against the English bureaucracy. The Privy
Council followed the earlier interpretation given by the Judicial Committee
and the Bombay High Court in Gangadhar Tilak v. Queen Empress[9]and
affirmed the decision of the lower court confiscating the deposit of Besants
printing press.
1.2.2 A New Interpretation of S. 124A: Niharendu Dutts Case:

The so-called broad interpretation of the meaning of sedition in the Indian

Penal Code was, as has been stated earlier the prevailing view in Indian
Courts. This trend continued till the landmark judgement of the Federal Court
of India in 1942 in Niharendu Dutt Majumdar v. Emperor[10].
The case was decided in appeal from the Calcutta High Court. The accused (a
member of the legislature) had made a certain speech against the Ministry
and the Governor of Bengal against their acts and omissions in riots that had
taken place in Dhaka. The speech upbraided the government for the alleged
misuse of police forces and the governor for not fulfilling his responsibilities.
The audience was made to believe that the government was encouraging
communal disturbances and it was suggested that the ministry and the
government should be made personally liable for the suffering of the victims.
The accused was tried for the violation of Rules 34(6)(e) and (k) under the
Defence of India Act, 1939[11].
The opinion of the court of whether the speech was seditious or not[12] is
best summed up in the words of Gwyer, CJ It is true that in the course of
his observations the appellant indulged in a good deal of violent language
and had worked himself up to such a state of excitement The speech was,
we feel bound to observe, a frothy and irresponsible performance, such as
one would not have expected from a member of the Bengal Legislature; but
in our opinion to describe an act of sedition is to do it too great an honour.
Indeed the learned Chief Justice of the Federal Court opined that violent
words by themselves did not make a speech or written document seditious.
According to the Court, the gist of the offence was public disorder, or the
reasonable anticipation, or likelihood of public disorder, or must be of such
intensity as to satisfy a reasonable man that that was the intention or
tendency.
The learned Chief Justice however did not refer to any of the decisions of the
Privy Council while allowing the appeal of the accused. He justified his
decision on the grounds that the interpretation of the words of the code must
be in light of the changing circumstances and what was once seditious may
not be considered to be seditious now[13].
1.2.3 The Privy Council corrects the Niharendu Dutt judgement: KingEmperor v. Sadashiv Narayan:
Following the judgement of the Federal Court in Niharandu Dutt Majumdars
Case[14] another case with similar provisions in question went up in appeal
to the Judicial Committee of the Privy Council. The Defence of India Act was
again at issue in King-Emperor v. Sadashiv Narayan Bhalerao[15]. The
subject matter of the charge was a document published and distributed by
the accused in Jalgaon on January 23rd, 1943. The statements pertained to

the widespread poverty and hunger of the people, who had been allegedly
been the subject of several collective fines. The trial judge held himself
bound by the decision in Niharendu Dutt Majumdar and pointed out that
nowhere in the leaflet was it stated that an alternative government should be
formed and be set up by use of violent means, and the audience was rather
exhorted to achieve national unity[16]. Therefore, in the absence of any
incitement to violence or disorder, the trial court acquitted the accused.
Lord Thankerton, who delivered the judgement of the Privy Council, however
disagreed with the lower courts reliance on the conclusions of Gwyer, CJ in
Niharendu Dutts Case. According to the Committee the Federal Court had
proceeded on a mistaken construction of the section and had disregarded
previous decisions of the Privy Council by which it was bound. The judgement
of Strachey, J in Bal Gangadhar Tilak was cited with approval and it was reiterated that incitement to violence was not a necessary ingredient of the
offence of sedition.
1.3 Interpretation
Significance:

before

Independence:

Ramifications

and

The discussion above clearly shows the dual opinions that were held by the
courts of India and the Privy Council. The opinions diverged on the meaning
of certain terms[17] and what quality of intention[18] is required to establish
a speech as seditious.
On the one hand was the interpretation of the Federal Court in Niharendu
Dutt Majumdar v. Emperor[19], and on the other a great weight of precedent
in case law built up over more than half a century.
However it would be hasty to condemn any one interpretation as wrong, for
both proceeded on fairly logical grounds and in a particular historical
environment. However the conflict of opinions had certain far-reaching
consequences even after India gained Independence. The consequences are
reflected in the framing of the provisions of the constitution of a then newly
independent India.
The next section deals with certain constitutional aspects of sedition, and the
position preferred by the Supreme Court of India as far as the interpretation
of S. 124A was concerned.
MEANING AND INTERPRETATION OF S. 124A AFTER INDEPENDENCE
At the time of framing a new constitution for India there was not enough
clarity as to the scope of S. 124A of the Indian Penal Code. The basic
confusion arising out of two conflicting decisions was reflected in the
constitution. The decision in the case of King-Emperor v. Sadashiv

Narayan[20] had overruled the interpretation of the Federal Court in

Niharendu Dutts Case. The latter had significantly narrowed down the scope
of the offence of sedition and had made the intention to incite disorder on
the part of the accused a key ingredient of sedition.
2.1 Sedition, Framing of the Constitution, and Fundamental Rights:
The new constitution of India envisaged a parliamentary system of
government. Criticism of the government by members of the opposition,
public and the press was to be an important part of the system[21]. In such a
situation the final interpretation of S. 124A given by the Privy Council would
impose an unreasonably harsh restriction on the new fundamental right to
the freedom of speech and expression. The interpretation given by the
Federal Court would clearly have been preferred, but for the fact that it had
been overruled by the Privy Council[22].
With this in mind it was felt to be appropriate that sedition be left out of
Article 19(2), which laid down the restrictions on the right to freedom and
expression guaranteed in Article 19(1)(a). However, this did not mean that
seditious speech was within the ambit of the free speech right. Due to the
ambiguity in the meaning of sedition in the Code, the word itself was omitted
from the draft articles. Instead, certain terms such as security of the state,
public order, and incitement to offence were used to cover the same
subject matter without the actual use of the word sedition.
2.2 Constitutionality of S. 124A:
It was only in 1962 that the Supreme Court of India finally decided on the
interpretation S. 124A. However, due to the interpretation to S. 124A given
by the Privy Council, the courts of India were put in a difficult position. On the
one hand there was the interest of the security of the state and the broad
number of activities that came within the purview of sedition due to the
interpretation of the Privy Council. On the other hand there was the interest
of free speech enshrined in Article 19(1)(a). Sedition had been omitted from
the restriction on free speech enumerated in Article 19(2). With these
competing interests in mind, courts in India had to answer the question of
constitutionality of S. 124A.
The issue of constitutionality came up in the Punjab High Court in Tara Singh
Gopi Chand v. The State[23].
In this case the accused had made certain speeches in 1950 at Shahabad
and Ludhiana, in connection with which he was charged with sedition.
Essentially, the court accepted the wide ambit given to S. 124A in Sadashiv
Narayan[24]and used it to hold S. 124A ultra vires the constitution.

The court felt that a law of sedition that was thought necessary during a
period of foreign rule had become inappropriate by the very nature of the
changes that had come about. Unfortunately the court failed to take
advantage the its power under the Adaptation of Laws Order to construe the
section so as to make it constitutional.
2.3 Kedar Naths Case: The Law As It Stands Today:
In 1962, the Supreme Court of India decided on the ambit and scope of S.
124A of the IPC. In the facts of Kedar Nath Singh v. State of Bihar[25], the
accused in the main of the 4 appeals was a member of the Forward
Communist Party and made a harsh speech against the government in power
of the containing a good deal of violent language. Though it was not
contended by the accused that his speech did not fall under the ambit of S.
124A as construed by the Supreme Court, it became necessary to decide on
the constitutionality of S. 124A particularly and on the construction of the
section generally, in order to dispose of the other three appeals.
Sinha, C.J. who delivered the judgement of the court examined the entire
history of interpretation of S. 124A. There was no doubt that the provisions of
S. 124A were violative of the right enshrined in 19 (1)(a) S. 124A. The
question was primarily whether the section would be saved by bringing it
under the ambit of the restrictions enumerated in Article 19(2). The court
weighed the conflicting meanings given to S. 124A given by the Federal
Court and the Privy Council.
Sinha, CJ accepted the necessity of having the offence of sedition. He
favoured the presumption of constitutionality that was created by accepting
the view of the Federal Court. The court decided that S. 124A should make
penal only those matters that had the intention or tendency to incite public
disorder or violence. Therefore S. 124A was held to be constitutional. The
restrictions imposed on freedom of speech could be said to be in the interest
of public order.
Kedar Nath Singh v. State of Bihar[26] has been followed subsequently in
cases such as Bilal Ahmad Kaloo v. State of Andhra Pradesh[27] and
Raghubir Singh v. State of Bihar[28]. In the latter case a jeep containing 5
persons was intercepted at the Indo-Nepal border. The vehicle contained
certain pamphlets of Sikh separatist propaganda and a history of Amritsar
that portrayed India as the enemy. The accused raised the contention that
they were not liable for sedition as they were not the authors of the seditious
materials. While not expressing any opinion on the issue of sedition that was
raised before it, the Supreme Court said that authorship of seditious
materials was not the gist of the offence. Distribution and circulation of
seditious materials could in the particular circumstances of the case be
enough to constitute sedition.

LAWS OF SEDITION IN INDIA, ENGLAND, AND THE UNITED STATES OF

AMERICA A COMPARATIVE STUDY
In previous sections, the evolution of the law of sedition in India and the
conflicting opinions surrounding it has been examined. However it cannot be
assumed that S. 124A embodies the common law as it stands in England or
even elsewhere. What constitutes sedition differs not only in time but also in
terms of place, in each case depending on particular circumstances that
influence their development.
In this section we look at the laws relating to sedition in two other nations,
namely the United States of America and England. The laws of both the USA
and India have their roots in English common law. It is therefore appropriate
the meaning of sedition in England.
3.1 Meaning and Scope of Sedition in England:
Sedition in the common law consists of any act done, or words spoken or
written and published, which has or have a seditious tendency and is done or
are spoken and written and published with a seditious intention.
A person may be said to have a seditious tendency if they have any of the
following tendencies[29]:
a. To bring into hatred or contempt or excite disaffection against the
sovereign or the government and constitution of the United Kingdom or
either House of Parliament,
b. Excite sovereigns subjects to attempt otherwise than by lawful means the
alteration of any mater in church or state by law established,
c. To incite persons to commit any crime in the disturbance of the peace,
d. To raise discontent or disaffection amongst the sovereigns subjects, or
e. To promote feelings of ill-will and hostility between different classes of
those subjects.
In the case of seditious libel and seditious words, there must be an
incitement to disorder and violence. However distinctions are drawn between
free comment, criticism and censure, and sedition[30].
At least as far as publications against the government and the constitution
are concerned, incitement to insurrection or disorder has been accepted as
an essential ingredient of sedition[31]. Earlier, the Privy Council held on an
appeal[32] from the Gold Coast (now Ghana) that rules of English law would

not be applicable if the Criminal Code of the colony of the country itself gave
a definition of the offence of sedition. The committee held that the Gold
Coast statute did not require any requirement of incitement to violence to
constitute sedition, and refused to apply the English rule that required
intention to incite violence or tumult.
It can be easily discerned that the law of sedition in England is clearly wider
in scope than the law of Sedition in India. The Indian Penal Code contains
various provisions that correspond to the 5 heads in English law that
constitute a seditious tendency. However they do not attract similar
punishment as the offence of sedition[33]. For instance, inciting persons to
commit crime in disturbance of the public peace corresponds broadly to S.
505 of the Indian Penal Code entitled Statements conducing to Public
Mischief. Promotion of feelings of ill will and hostility between different
classes of subjects corresponds even more closely to sub-clause (c) of S.
505(1) and S. 505(2)[34].
Unlike in England, in India, only seditious words have been brought under the
purview of sedition. Also, only a particular species of sedition in the common
law is sedition in India, namely exciting disaffection, hatred or contempt or
attempting to do so. The same status is not accorded to other common law
heads of sedition such as inciting communal hatred as in England.
In R. v. Edwards[35] the accused was the author of a comic strip that spread
hatred for certain sections of society including Jews, and persons of African
and Asian origin. The comic strips were exceedingly offensive and portrayed
these sections in a cruel and violent light. It was held that the magazine was
intended to prejudice the minds of young children against these sections of
society and could potentially incite riots.
However, deciding on cases of this nature depend greatly on the facts of
each case. In R. v. Caunt[36], the accused was the editor of a local
newspaper. He published an article in the paper (authored by him), which
was intended to be an attack on the Jews living in Britain. Towards the end of
the 900-word article was the line Violence may be the only way to bring
them (British Jews) to the sense of responsibility to the country where they
live.
The jury however upheld the right of the press to free discussion, despite the
unrestrained language used in the article in question. The jury accepted the
contention that the accused was not threatening violence but only issuing a
warning.
In R. v. Chief Metropolitan Stipendiary Magistrate, ex p Choudhury[37], the
seditious writing in question was Salman Rushdies controversial work The
Satanic Verses. In the facts of this case, one Abdul Hussain Choudhury

applied for judicial review of the order of the chief metropolitan magistrate
refusing to issue summonses to the author, and charged the author with
blasphemy and seditious libel. The book vilified the prophet Mohammad,
calling him a conjurer, a magician, and a false prophet, his wives and his
companions. The book also ridiculed and vilified the teachings of Islam. The
court had no doubt that such passages would deeply offend the Muslims of
the United Kingdom. The court relying on Boucher v. R., a Canadian case held
that the proof of an intention to promote feelings of ill-will between classes of
subjects does not by itself establish seditious intention. The court held that
there must not only be this ingredient but also the element of public mischief
or the intention to incite violence, particularly against constituted authority.
Given the above cases from England it may be surmised that Indian cases
relating to incitement of communal hatred, which would not be sedition in
India would come under the purview of that offence in England. An example
of this is Bilal Ahmad Kaloo v. State of Andhra Pradesh[38], a Kashmiri youth
living in Hyderabad was alleged to have been spreading communal hatred
amongst Muslim youth there by distributing documentation that stated that
the Indian armed forces were perpetrating atrocities on Muslims living in
Kashmir. He was acquitted on the charge of sedition as the court held that
sedition could not be proved, as the appellant did not do anything against
the government of India or the state government[39].
It is quite possible that if such a case were tried under English law the court
may have arrived at a different conclusion, as the spreading of hatred
amongst classes of subjects is a species of sedition when coupled with
incitement to public mischief.
3.2 Law of Sedition in the United States:
In the United States of America, sedition has been defined as a commotion,
or raising a commotion in the State not amounting to insurrection, or
excitement of discontent against the government or of resistance to lawful
authority[40].
Speech that criticises or associating with others for the purpose of criticising
the government is a constitutionally guaranteed right. In this situation there
is a difficult balance that courts and the legislature have to maintain
between the right to speak and the necessity of national security. Naturally,
in America as elsewhere this balance has been affected by history.
Like in India, the laws of sedition have been used for the purpose of crushing
unwanted dissent. For instance the Aliens and Sedition Acts of 1798 were
intended to silence critics of the administration of President Adams. During
the First World War the Sedition Act of 1918 amended Espionage Act, 1917.
The amendments made criminal almost any reproach or criticism of the

government. As time passed these acts were allowed to expire or were

repealed when they outlived their purpose (as was the case with the
amended portions of the Espionage Act)[41].
Before and after the Second World War the United States was in the grip of
the fear of communism and socialism. Legislations such as the Smith Act, the
Communist Control Act and the Emergency Detention Act imposed
restrictions on speech. Many of these were repealed later on.
One of the prominent laws that deal with sedition proper in the United States
is the Smith Act. This Act makes it a crime to knowingly or wilfully advocate
the desirability or propriety of overthrowing the government of the United
States or any political sub-division of the United States[42]. It is aimed at
advocacy and teaching of concrete action for forcible overthrow. Moreover,
membership to certain organizations that may be deemed to advocate such
activities is also illegalised.
In Scales v. United States[43] the supreme court of the United States
examined and upheld the constitutionality of the Act for violation of First
Amendment (free speech) rights. Moreover the membership clause of the Act
was challenged on the grounds of being violative of the Right to Association.
The court observed that the Act did not make mere membership a crime.
Specific Intent to bring about the overthrow of the Government as speedily
as circumstances would permit was required.
In the facts of this case the accused was a member of the Communist party
in the United States. He was alleged to have said that conditions were ripe in
the United States to bring about revolution in the USA, even more in fact
then they had been in Russia. The accused was also alleged to have said,
Communists in this country (the United States) would have to start the
revolution and would have to continue fighting for it[44].
In the companion case of John Francis Noto v. United States[45], the majority
of the court held that there was not enough evidence to show that the
Communist Party, of which the defendant was the member, engaged in
advocacy, not of an abstract doctrine of forcible overthrow, but of action to
that end[46]. The case was distinguished from Scales v. United States[47]. It
was held that in Noto the showing of illegal party advocacy lacked the
compelling quality of the utterances and conduct of the petitioner in Scales.
In Noto v. United States the petitioner had distributed certain pamphlets and
materials on the basic doctrines of revolution under Communism. He had
also made certain off-hand violent remarks about persons who were hostile
to the communist ideology. It was held that such remarks represented
nothing more than the spiteful nature of the party towards its enemies. The
court also said that present advocacy of acts of sabotage and violence were
elements of the crime, and not intent to advocate such acts in the future.

3.3 Recent Developments:

In the light of recent developments, particularly since the attacks on the
World Trade Centre on September 11th, 2001 there has been growing concern
around the world regarding the spread of terrorism. Many countries have
enacted special laws that amend or redefine terrorist activities.
In India, the Prevention of Terrorism Ordinance, and subsequently the
Prevention of Terrorism Act has been passed. S. 3(3) of the Ordinance and
the corresponding sections in the act make it illegal to advocate, incite or
advise acts of terrorism[48].
In the United States as well similar legislation has been passed. The Uniting
and Strengthening America by Providing Appropriate Tools Required to
Intercept and Obstruct Terrorism (USA PATRIOT) Act, 2001 has attracted
much controversy and debate. Section 802 of the USA PATRIOT Act creates a
federal crime of domestic terrorism that broadly extends to acts
dangerous to human life that are a violation of the criminal laws if they
appear to be intendedto influence the policy of a government by
intimidation or coercion, and if they occur primarily within the territorial
jurisdiction of the United States. It has been suggested that due to the wide
wording of this statute vigorous protest activities, by their very nature, could
be construed as acts that appear to be intendedto influence the policy of
a government by intimidation or coercion. Further, clashes between
demonstrators and police officers and acts of civil disobedience even those
that do not result in injuries and are entirely non-violent-could be construed
as dangerous to human life and in violation of the criminal laws.
Environmental activists, anti-globalization activists, and anti-abortion
activists who use direct action to further their political agendas are
particularly vulnerable to prosecution as domestic terrorists.
CONCLUSION
The power of words can never be underestimated. Indeed, words and
language may be the only thing that separates man from beast. It is the
importance of words in the continuing development of civilization and
humanity and for the spread of ideas and knowledge that causes most States
around the world to protect words. This is done through various means, the
most important of which is the guarantee of the right to free speech.
However words can be a double-edged sword. They can be used to
undermine the authority of the very state that protects them. They can be
used to incite violence and disorder against he state and its citizens. In order
to protect itself and its citizens the state makes sedition an offence.

In Reg. v. Alexander Sullivan[49], Fitzgerald, J described the sedition in the

following terms Sedition is a crime against society nearly allied to that of
treason, and it frequently precedes treason by a short interval the objects
of sedition are to induce discontent and stir up opposition to government
the very tendency is to incite the people into insurrection and rebellion.
This definition clearly lays down the main ingredient of sedition as the
incitement of violence amongst the people, encouraging them to wage war
against the State or its manifestation, the government. However, before
independence the law of sedition as interpreted for India excluded this vital
trait. This meant that a broad range of speeches and commentaries that
criticised the government of the day came under the purview of sedition,
thus severely restricting free speech. A long line of judicial decisions in India
and on appeal to the Privy Council in England held that incitement to
violence was not an ingredient of the offence of sedition, despite the fact
that incitement to violence had long been part of the offence of sedition
under the common law.
All of this changed in 1942 when the Federal Court of India held that
incitement to violence and disorder or an intention to incite violence was an
essential element of the offence of sedition. The decision was later
overruled, but it formed the basis of the narrowing down of the scope of S.
124A by the Supreme Court in Kedar Nath v. State of Bihar[50].
The law of sedition in other countries is by and large wider in scope than the
law of Sedition in India as embodied in S. 124A. In India the scope of the
offence is restricted to seditious words and representations, whereas in a
country like India includes seditious acts as well. Only certain types of words
are construed as seditious in India. The category of seditious words is wider
in England. For instance, inciting communal tensions coupled with an
incitement to violence amounts to the offence of sedition in England whereas
in India it is given the status of a lower offence. There may be a need to
adopt the English law and practice in this regard given the danger posed to
the ideals of secularism enshrined in the constitution by various religious
fundamentalist groups of late.
In the United States, the law of Sedition grew in response to particular
challenges posed to the State. In addition to words and seditious libel,
membership to organizations that incite violence or the overthrow of the
State also raises the presumption of sedition. However active participation in
seditious activities has been held to be an ingredient of the offence by the
American Supreme Court.
The development of the law of sedition in America is a good illustration of
how historical circumstances affect the development of offences against the
State. The Smith Act, an act that deals with sedition came into existence

primarily to combat the communist threat to the United States. As the

threat of Communism receded, such acts restricting the freedom of speech
and expression lost the reason for their existence and were repealed.
This thesis is borne out in other countries. S. 124A of the Indian Penal Code
was not part of the original Code and was introduced only later. It was
enacted primarily to reign in the press and vernacular newspapers that were
adding fuel to the fire of nationalism in the country. After independence,
there was a dramatic change in the interpretation of the section.
In recent times, most states have come face to face with the very real threat
of global terrorism. They have done this by enacting laws to combat
terrorism. In India this has taken the form of the Prevention of Terrorism Act
and in the United States it has taken the form of the USA PATRIOT Act. In
both countries several doubts have been raised about restrictions imposed
on the freedoms of speech by these Acts. History may well illustrate that
such restrictions are necessary in the changing circumstances.
Finally, it would be interesting to see what the Law Commission has had to
say about S. 124A and the offence of sedition. The 41 st Law Commission
Report made the following recommendations as to the possible changes that
could be brought about in the law of sedition in India:
a. In view of the controversy that has surrounded the role of intention in S.
124A an amendment should be made that makes the causal link between
the words and the security and safety of the State. The mens rea should be
expressed as intending or knowing it (the words or representations in
question) to endanger the integrity or security of India or of any State or to
cause public disorder.
b. The Law Commission was also in favour of he English rule where a verbal
attack on the Constitution, Legislature and the administration of justice are
brought under the purview of this section. A new section was also proposed
to make desecration of the national flag and anthem and the Constitution an
offence.
c. The punishment section that provides for either imprisonment for life or for
imprisonment up to 3 years and nothing in between was thought to be odd
by the Law Commission. It recommended a maximum punishment of up to 7
years with the option of imposing a fine.
BIBLIOGRAPHY

ARTICLES:

1. H.C. Trapnell, The Indian Press Prosecutions, in 14 Law Quarterly

Review (1898).
2. Seditious Libel and the Press, in 64 Law Quarterly Review (1948).

BOOKS:

1. Ratanlal and Dhirajlals Law of Crime, 1 (C.K. Thakker ed., New Delhi:
Bharat Law House, 1997).
2. W.O. Russel, Crime, 1 (12th ed., London: Stevens and Sons, 1964).

MISCELLANEOUS:

1. 41st Law Commission Report.

2. 70 American Jurisprudence 2d.
3. Halsburys Laws of England, 11(1) (London: Butterworths, 1994).
[1] As cited in H.C. Trapnell, The Indian Press Prosecutions, in 14 Law
Quarterly Review (1898) at 72.
[2] For instance truth is no defence for sedition. Ram Chandra v. Emperor,
AIR 1930 Lah 371.
[3] See generally, Ratanlal and Dhirajlals Law of Crime, 1 (C.K. Thakker ed.,
New Delhi: Bharat Law House, 1997).
[4] ILR 22 Bom 112. This case was decided in the Bombay High Court.
Unfortunately, the researcher did not have access to this reporter and details
of the case are obtained from other sources.
[5] H.C. Trapnell, The Indian Press Prosecutions, in 14 Law Quarterly
Review (1898) at 82.
[6] The decision followed earlier decisions of the courts of British India such
as Queen Empress v. Jogendra Chunder Bose, ILR 19 Cal 35.
[7] Gangadhar Tilak v. Queen-Empress, (1898) 25 IA 1.
[8] (1919) 46 IA 176.
[9] Supra note 7.

[10] AIR 1942 FC 22.

[11] These provisions were framed almost identical to S. 124A of the IPC.
[12] The issue of sedition though the most important in the case was not the
only one. There were also two other issues relating to constitutional law and
the law of evidence.
[13] The historical context of the decision make this decision all the more
courageous and forward looking. Gwyer, CJ clearly was aware of the
precarious position of British Rule in India. This is made all the more evident
by the following statement Nor, we hope are we exceeding our functions,
if we observe in grave times like the present , with the enemy at the gate,
language which might not attract attention at other times may to-day or tomorrow bear a very different significance
[14] Supra note 10.
[15] (1947) 74 IA 89.
[16] Ibid at 91.If we blindly carry on sabotage activities simply because the
Imperialists are not transferring power to us the Japanese Imperialism may
dominate over us we must achieve this great task of bringing about
national unity and must take over the control of national defence.
[17] The most important of these being the term disaffection.
[18] Namely whether the intention should be to incite violence.
[19] Supra note 10.
[20] Supra note 15.
[21] the essence of democracy is Criticism of Government. The party
system which necessarily involves an advocacy of replacement of one
government by another is its only bulwark; K.M. Munshi on 1st December
1948, Constitutional Assembly Debates.
[22] The general confusion about the meaning of the infamous section was
expressed by at least one member at the time of framing the constitution.
The dilemma created by the overruling of Niharendu Dutt and consequent
need to exclude sedition from 19(2) is illustrated by the following statement
of Mr. K.M. Munshi the equivocal word sedition only is sought to be
deleted from the article. Otherwise, an erroneous impression would be
created that we want to perpetuate 124A of IPC or its meaning which was

considered good law in earlier days. 1st December 1948, Constitutional

Assembly Debates.
[23] AIR 1951 Punj 27.
[24] Supra note 15.
[25] AIR 1962 SC 955.
[26] Id.
[27] (1997) 7 SCC 431.
[28] AIR 1987 SC 149.
[29] Halsburys Laws of England, 11(1) (London: Butterworths, 1994) para
89.
[30] Ibid para 90. An English judgement of relevance is that of Littledale, J
in R. v. Collins, (1839) 9 C&P 456, at 460-461. Every man has a right to give
every public matter a candid, full and free discussion. Something, must be
allowed for a feeling in mens minds and for some warmth of expression, but
an intention t incite the people to take power into their own hands and to
provoke them to tumult and sdisorder is seditious intention.
[31] W.O. Russel, Crime, 1 (12th ed., London: Stevens and Sons, 1964) at 219220.
[32] Wallace-Johnson v. R, [1940] 1 All ER 241.
[33] S. 124A prescribes life imprisonment as the maximum punishment for
the offence of sedition.
[34] S. 505(2) Statements creating or promoting enmity, hatred or illwill between classes Whoever makes, publishes or circulates, or any
statement or report containing rumour or alarming news with intent to create
or promote, or which is likely to create or promote, on grounds of religion,
race, place of birth, residence, language, caste or community, or any other
grounds whatsoever, feelings of enmity, hatred or ill-will between different
religious, racial, language, or regional groups, or castes and communities
shall be punished with imprisonment which may extend to three years, or
fine, or both.
[35] [1983] Crim LR 539.

[36] Unreported, as cited in Seditious Libel and the Press in 64 Law

Quarterly Review (1948) at 203.
[37] [1991] 1 All ER 306.
[38] (1997) 7 SCC 431.
[39] The courts conclusion is a little difficult to understand as the accused
was found possessing arms and the spreading of communal hatred could
eventually lead to violence.
[40] Sedition, 70 (Ss .2) American Jurisprudence 2d.
[41] Ibid at Ss. 10.
[42] Ibid at Ss. 32.
[43] 367 US 203, 6 L. Ed. 782. Harlan, J and 4 others formed the majority. 4
judges dissented.
[44] Ibid at 810.
[45] 367 US 290, 6 L. Ed. 836.
[46] The court relied on the case of Yates v. United States, 354 US 298, 1 L.
Ed. 1356. The court in this case held that the Smith Act does not prohibit
advocacy or teaching a doctrine of forcible overthrow, even though the
advocacy and teaching is engaged in with an evil intent.
[47] Supra note 43.
[48] S. 3(3) Whoever conspires or attempts to commit, or advocates, abets,
advises or incites or knowingly facilitates the commission of, a terrorist act or
any act preparatory to a terrorist act, shall be punishable with imprisonment
for a term which shall not be less than five years but which may extend to
imprisonment for life and shall also be liable to fine.
[49] (1868) 11 Cox CC 44 as cited in the 41st Law Commission Report.
[50] AIR 1962 SC 944.