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Indian Journal of Law and Legal Research Volume IV Issue III IISSN: 2582-8878

DEBATING THE DESIRABILITY OF SEDITION LAW IN

MODERN INDIA

Sasmit Shailesh Powale, B.M.M. (Journalism) M.A. Political Science,

P.G. Diploma in International Studies
Student at Government Law College, Churchgate, Mumbai

ABSTRACT

The May 1 1 tV 2022 judgement of the Supreme Court of India suspended use
of IPC 124 Sedition law till it is reviewed. This has once again stirred the pot
of discussion around the topic. This article debates the desirably of sedition
law in 21s' century India. After briefly going over its origin and historical
significance, the article positions IPC 124A in its proper geo-political and
historical context while arguing for its continuance. The prevailing threat
perceptions of the nation, the author believes, have not been sufficiently
addressed when discussing utility of IPC 124A. The article also questions it
much despised 'colonial' tag and studies if that argument holds water. And
then it delves into the language employed in law from which stems much of
the concern and contestation. This article also draws attention to the statistics
provided by National Crime Records Bureau while analyzing its misuse. At
the end the article proposes amendment of the law in the light of Supreme
Court judgements, responsibility of citizens, available alternatives and bills
previously presented to rectify the law. In conclusion the article underscores
the importance of availability of free speech to critique the government by
highlighting two worst human atrocities conducted in India's neighborhood
and provides caution to the people and government.

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In 1950, Forged in the wisdom of the Indian independence struggle, freedom of speech and
expression emerged as the cardinal right enshrined in Article 19 of the Indian constitution]
bolstered by the Universal Declaration of Human Rights in 1948,2 and the International
Covenant on Civil and Political Rights, 19663 (ICCPR hereafter).

Freedom of speech is the founding block of democracy. It is the anvil on which the
substantiveness of a free society is tested. Freedom of speech is the litmus test to examine the
political education of society and the political maturity of its democratic institutions.

The purpose of this freedom, as stated by Stephen Schmidt, 4 is to allow an individual to attain
self-fulfillment, assist in the discovery of truth, strengthen the capacity of a person to take
decisions, and facilitate a balance between stability and social change.

Freedom of speech is a tool that brings a constitutional candle to the areas where there is
societal darkness. Taking the example of the Indian Penal Code (hereafter IPC) 377,5 would
light have ever penetrated this corner of society if not for the freedom of speech and expression?

In the case of Shreya Singhal v. Union of India, 6 Section 66A of the Information and
Technology Act, 2000, was declared unconstitutional on the grounds that it was in direct
conflict with the fundamental right of freedom of speech and expression. The Supreme Court
held that under the Constitutional scheme, for democracy to thrive, the liberty of speech and
expression is a cardinal value and of paramount importance.

In S. Khusboo v. Kanniamal & Anr, 7 the Supreme Court opined that "free flow of the ideas in
a society makes its citizen well informed, which in turn results into the good governance. For
the same, it is necessary that people be not in a constant fear to face the dire consequences for
voicing out their ideas, not consisting with the current celebrated opinion."

In Tata Press Ltd. v. Mahanagar Telephone Nigam Ltd. & Ors,8 the Supreme Court reminded
us that "Freedom of speech goes to the heart of the natural right of an organized freedom-loving
society to impart and acquire information about that common interest."

In the immortal words of George Orwell, "If liberty means anything at all, it means the right to
tell people what they do not want to hear."

The prominent position of freedom of speech as the crowned jewel of democracy is

indisputable; however, the same ICCPR that placed freedom of speech on a high pedestal also
splintered it by recognizing 'reasonable restrictions' that can be pressed against it. According

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to Article 19(3)9 of the ICCPR, this freedom may be subjected to restrictions, provided they
are prescribed by law and are necessary for respecting the rights or reputation of others or for
the protection of national security, public order, public health, or morals. Perhaps the
inspiration for such an action stemmed from the playbook of the then Prime Minister of India,
Jawaharlal Nehru, who introduced the first amendment to the constitution to make specific
changes in Article 19 (2)10 inserting the phrases 'public order' and 'relations with friendly
states' into the Article and the word 'reasonable' before 'restrictions.' which meant to provide
a safeguard against misuse by the government. However, in ensuing debates in the parliament,
Nehru clarified that he was not validating existing laws like sedition through this amendment.

Article 19 (2) of the Indian constitution now allows freedom of speech and expression to be
ringfenced by the interests of the sovereignty and integrity of India, 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.

Clearly, it is constitutional to recognize that some rights take precedence over an individual's
right to freedom of speech and conversely, the society's right to hear it or be informed. The
right to freedom of speech and expression worldwide is not an absolute but a qualified right.
The sedition law, whose desirability is so intensely debated, takes its nourishment from here.

IPC 124A"I on Sedition states,

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

estab-lished by law in India shall be punished. (emphasis

added)

Origin & Historical Significance

IPC 124A was inserted into the Indian polity with its inclusion in the Indian Penal Code in 1870.
Notably, sedition did not feature in the original code that came into force in 1860; it was later
included with the help of an amendment. James Stephens, the architect of the Criminal
Procedure Code, chalked out the omission as a mistake;12 however, Siddharth Narrian in his
article, 'Disaffection and Law: The Chilling Effect of Sedition Law in India,13 speculates that

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the British government wanted to adopt more wide-ranging strategies against the press,
including initiating systems of registration.

The first casualty of this law was Jogendra Chandra Bose,14 the editor of a Bengali magazine
"Bangobasi" was tried for sedition for publishing an article criticizing the British government's
raising of the age of consent for sexual intercourse and the negative economic impact of British
Colonialism. Later in Queen Empress v. Bal Gangadhar Tilak,15 Tilak was accused of sedition
for publishing an article in the newspaper Kesari, invoking the example of the Maratha warrior
Shivaji to incite the overthrow of British rule. In this case, Justice Strachey placed relevant
material before the jury to interpret 'disaffection' by stating:

"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. ... The
amount or intensity of the disaffection is absolutely
immaterial, ... if a man excites or attempts to excite
feelings of disaffection, great or small, he is guilty under
the section. In the next place it is absolutely immaterial
whether any feelings of disaffection have been excited or
not by the publication in question. ... the section places
absolutely on the same footing the successful exciting of
feelings of disaffection and the unsuccessful attempt to
excite them..."

The fundamental moral question that Tilak asked in response to his prosecution was whether
his trial constituted sedition of the people against the British Indian Government (Rajdroha) or
of the government against the Indian People (Deshdroha). 16

The list of Indian freedom fighters tried under this law is long. With such a contentious past as
its legacy, it is no doubt that the constituent assembly was adamant and unanimous in having
the word sedition deleted from Article 13 of the draft constitution. The anguish can only be
captured in the words of Shri Ananthasayanam Ayyangar in the constituent assembly debates: 17

"If we find that the government, for the time being, has a
knack of entrenching itself, however bad its administration

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might be it must be the fundamental right of every citizen

in the country to overthrow that government without

violence, by persuading the people, by exposing its faults

in the administration, its method of working and so on. The
word 'sedition' has become obnoxious in the previous
regime. We had therefore approved of the amendment that
the word 'sedition' ought to be removed, except in cases
where the entire state itself is sought to be overthrown or
undermined by force or otherwise, leading to public
disorder; but any attack on the government itself ought not
to be made an offence under the law. We have gained that
freedom and we have ensured that no government could

possibly entrench itself unless the speeches lead to an

overthrow of the State altogether." (emphasis added)

The birthplace of the sedition law is, by no surprises the United Kingdom, the Statute of
Westminster 1275.18 However, in 2009, sedition as an offence was abolished in the United
Kingdom. 19 In the United States, free speech against the government 20 is protected by the 'clear
and present danger' test propounded in Schenck v. United States, 2 1 by the Supreme Court of
United States America.

Meanwhile, over at the other corner of the Pacific, in Australia, on the recommendation of the
Australian Law Reform Commission, sedition was removed in 2010.

Balancing Freedom of Speech with Necessity to Protect Government

Nature of Government & the State of World Affairs

One of the fiercest criticisms levelled against the sedition law has been its colonial legacy. How
can an independent democratic society allow such a law, which led to the persecution of several
stalwarts of the Indian freedom movement, to remain standing? This criticism can be addressed
by pointing out its false equivalence. In pre-independence and pre-constitution India, the law
was used/misused by an imperial, colonial, and alien-foreign rule to extract subservience and
further its economic exploitation. In independent and constitutional India, the nature of the
government using IPC 124A is radically different. It is a socialist, Indian and most importantly
a democratic republic. IPC 124A being a colonial-era law is not a sufficient rebuttal to IPC

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124A when entire sections of the Government of India Act 1935, IPC, Criminal Procedure

Code, et alia stand as is and continue to enjoy the full consent of the people. It is a grave
transgression, even malicious, to equate those tried under IPC 124A in post-independent era
with the leaders of Indian independence movement.

It is also important to highlight that the United Kingdom and Australia, both thoroughly
colonial in nature, discarded the sedition law only in the 21 century after over hundreds of
years of meticulous usage. The law was assiduously used to keep the citizenry in line and
protect the government, which is the most valuable tool for nation-building. India is a nation-
in-building and therefore, Indians ought not to draw unwarranted inspiration from western
societies.

To determine the utility of the sedition law in the Indian context, it would be more appropriate
to compare it with that of other post-colonial societies that face similar challenges in nation-
building as India, if not for inspiration but at least for education.

It is also important to put the continuance of law and the amendment to Article 19(2) made by
Nehru in proper geo-politico-historical & security context.

Post cold-war saw the two standing super powers, the USA and USSR, vie for inducting as
many nations as possible into their ideology (evident from NATO, Warsaw pact, Baghdad pact
etc.). To achieve this, covert methods, such as subverting press, using NGOs as trojan horses,
funding political parties, infiltration into the civil societies 22 of post-colonial nations
(Vietnam, 2 3 Korea, 24 and Afghanistan 2 s), were used. This made the aforementioned countries

battle grounds for the ideological war between the USA and USSR. Many such attempts were
made in India too. 2 6

Take a recent example of the Arab spring which burned through the middle east taking with it
the African leaders of Libya, Egypt, Algeria, Tunisia. Grass-roots activists like Entsar Qadhi,
a youth leader in Yemen, received training and financing from groups like the International
Republican Institute, the National Democratic Institute and Freedom House, a nonprofit human
rights organization based in Washington. These groups were created by Congress and are
financed through the National Endowment for Democracy. The National Endowment receives
about $100 million annually from Congress. Freedom House also gets the bulk of its money
from the American government, mainly from the State Department. 27

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National Endowment for Democracy (NED) is the dreaded foreign policy tool also held
responsible for the pro-democracy (and also pro-US) color revolutions which swept the
countries of Eastern Europe. 21 It is role in foreign politics is severely criticized for undermining
leadership & sovereignty of the countries, fueling chaos by funding revolutions and trying to
install pro-US politicians at the driver seat of the nations. 29

It is the powerful knowledge that the right to freedom of speech can be easily weaponized in a
nascent country, such as India, that prompted Jawaharlal Nehru to amend the constitution for
the first time. There is sufficient documented evidence of foreign powers using civil society
organizations to sow seeds of disaccord in societies and attacking third world nation
governments, 30 pressuring them into taking decisions unfavorable to their people. Such
methods continue to this day.

A democratically elected republic government is the only embankment that can stop the flood
of neo-colonialism or communism from completely sweeping over the nation. In such cases, it
is imperative to immediately squash the voices raising slogans that incite hatred against the
government to protect the sovereignty and integrity of the nation.

It is a truly third-world country experience that forced well-meaning leaders like Jawaharlal
Nehru to keep the sedition law standing. There is an argument to be made that it was the use
of sedition law, among other laws, which kept the nation standing, walking the line of non-
alignment, through the tumultuous period of the cold war.

Geography & Neighborhood

In the words of Justice Oliver Wendel Holmes, "The Life of the law has not been logic. It has
been experience."3 1 If we consider India and its geographic position, it is vastly different from
the USA, UK, and Australia. For starters, the three Anglosphere countries are isolated islands
with no inimical or competing powers around them and have not faced a single war with their
neighboring countries in over a hundred years. The threat perception from their immediate
neighbors is zero. The same cannot be said about India, which continues to suffer painful
experiences of insurgency, akin to festering wounds, since its independence. It would not bode
well to deprive the government of a fighting tool when even the existing ones have proven
insufficient in dissipating the centrifugal tendencies in the states of Jammu and Kashmir,
Punjab, Nagaland, Arunachal Pradesh, West Bengal, etc. The porous borders of these states
allow for quick and efficient trafficking of anti-national elements to raise mayhem.32 The time

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afforded to the state between incitement and action can prove insufficient if IPC 124A is not
available.

The state has the responsibility of maintaining public peace, national sovereignty, and integrity.
In Kedar Nath Singh V. State of Bihar,33 the constitutional validity of IPC 124A came to be
challenged. The constitution bench upholding the validity of the section 124A stated

"'Government established by law' is the visible symbol of

the State. The very existence of the State will be in jeopardy
if the Government established by law is subverted. Hence,
the continued existence of the Government established

by law is an essential condition of the stability of the

State. That is why 'sedition', as the offence in Section 124-

A has been characterized, comes, under Chapter VI relating
to offences against the State. Hence any acts within the
meaning of Section 124-A which have the effect of
subverting the Government by bringing that Government
into contempt or hatred, or creating disaffection against it,
would be within the penal statute because the feeling of
disloyalty to the Government established by law or enmity
to it imports the idea of the tendency to public disorder by
the use of actual violence or incitement to violence."

In the case of Kanhaiya Kumar v. State (NCT of Delhi), 34 the petitioner, charged under section
124A IPC, the Court observed that

"While exercising the right to freedom of speech and

expression under Article 19(1)(a) of the Constitution, one
has to remember that Part-IV Article 51A of the
Constitution provides Fundamental Duties of every citizen,
which form the other side of the same coin."

The Supreme Court in the case of A.K. Gopalan v. State of Madras 35 pronounced that the right
to free speech and expression is not absolute. It is subjected to the reasonable restrictions as

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enshrined in Article 19(2) and other laws, such as section 124A of IPC.

Therefore, from the above facts, a case is made for the right of the government to protect itself
as it is the fundamental means through which ends for which the nation and its constitution
were conceived. The lofty ideals of constitution, mentioned in its preamble, Part III:
Fundamental rights and Part IV: Directive Principles of State policy cannot be brought forth
without the government. Government's right to protect itself is part and parcel of a larger goal
of collective national interest which must be balanced with freedom of speech.

Vitiating through Vagueness & Obsolescence

However, all arguments in the favor of retaining the law bite dust when we take one look at the
conviction rate of the cases registered under this law, which has fluctuated between 3% and
33% over the years; the pendency of such cases in court reached a high of 95% in 2020.36

The protection given to government actions in curbing free speech under Art. 19 (2) of the
constitution of India, is limited to those actions aimed at securing sovereignty and integrity of
India, friendly relations with foreign States, public order, decency or morality or in relation to
contempt of court, defamation or incitement to an offence and security of the state, but not if
only threatens the government. Government is an element of the state and not the state itself.
The right of the government to protect itself under sedition law recognized in Kedar Nath Sigh
v State of Bihar is limited and does not encompass mere critique of the government or its
policies.

Despite IPC124A clearly stating that,

"Explanation 2 - Comments expressing disapprobation of

the meas-ures of the Government with a view to obtain
their alteration by lawful means, without exciting or
attempting to excite hatred, contempt or disaffection, do
not constitute an offence under this section" Explanation 3
- "comments expressing disapprobation of the
admin-istrative or other action of the Government without
exciting or attempting to excite hatred, contempt or
disaffection, do not constitute an offence under this
section". (emphasis added)

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There is no denying that the law has been grossly misused by the governments in power to
clamp down on political opposition and silence dissent in press.37 In fact, its ability to be
misused stems from the deliberate and mischievous language employed in the law- "... brings
or attempts to bring into hatred or contempt, or excites or attempts to excite disaffection
towards, the Government estab-lished by law...". It is quite impossible to make a successful
critique of the government or of its policies without evoking some form of negative emotion.
People are not statues. While the amount of hatred, dislike, disloyalty or disaffection evoked is
immaterial (Queen Empress v Tilak supra). While the law allows the person charged under it
to claim defense of disapprobation, it again runs into the same problem that any successful
criticism is bound to give rise to some disaffection in people towards the government. It
effectively puts freedom of speech against the government in a straitjacket, where every remark
must be carefully calculated and attached with a disclaimer pledging loyalty & affection to the
ruler like a caudal appendage. But more importantly any anti-national element can claim
protection of 'disapprobation' while spewing criticism as intention doesn't figure into the law.

This law in short in 21st century India looks very much like a deer caught in headlights as it
fails to distinguish between concerned citizens, patriots from saboteurs. Perhaps this was the
exact intent of the colonial law where it did not care to separate the two as free speech was not
a value the British aspired to inculcate in their regime. The historical context in which this law
was ushered in should also be kept in mind, the beginning of Indian national movement and
rise of vernacular press.

The law being unable to differentiate between a genuine criticism from a malicious one
empowers the government to persecute individuals taking a confrontational stance against the
government or its policies while allowing them to be harassed till the matter is resolved through
tedious and arduous courts proceedings. This feature emanating from the law can be said to be
being taken advantage of by the government giving the state a very colonial characteristic, the
same colonial characteristic which many fought and died to separate from India.

However, even if the vagueness of the phrasing of the law were not to be inquired into what
stands out as anachronistic is its usage of the word 'disaffection'. A particularly important trial
that took place in the pre-independence era under section 124A of IPC was that of Mahatma
Gandhi in 1922. Gandhi was charged along with Shankar Lal Banker, the proprietor of Young
India for three articles published in the magazine. Gandhi, in his submission, explained to the
judge why he had turned from a staunch royalist to an uncompromising disaffectionist and why

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it was his moral duty to disobey the law. In a stunning statement, Gandhi commented on the
law that was used to try him and demanded that the judge give him the maximum punishment
possible. Gandhi stated, "Affection cannot be manufactured or regulated by law if one has no
affection for a person, one should be free to give to the fullest expression is disaffection so as
long as he does not contemplate promote or incite violence." 38 His statement begs the
question-in a democratic society, is the citizenry expected to have affection towards the
government? Affection of the subjects towards the government is an expectation of a
monarchial state but unsuitable in a republic.

Available Alternatives

Since the arguments in favor of the sedition law have been made from the perspective of
maintaining national integrity and sovereignty by making sure it is not subverted by foreign
forces inimical to national interest, repeated efforts have been made to bring to the state's
attention to other remedies available in law to deal with anti-national and anti-social elements.
For instance, Chapter VI of the IPC includes offences against the State, waging or attempting
to wage war (section 121), collecting arms, etc. with intention of waging war against India
(section 122), concealing with intent designed to wage war (section 123), while Chapter VII
covers provisions relating to abetting mutiny (section 131 and 132). Further, Chapter VIII,
titled 'offences against the public tranquility' covers actions which, if allowed, would disturb
the peace of the society. Section 141 defines unlawful assembly, while Section 143 provides
for the punishment of the same; Section 153A prohibits the actions promoting enmity between
different groups on grounds of religion, race, place of birth, residence, language, etc., and acts
prejudicial to maintenance of harmony, along with several such provisions. These provisions
take care of any activity which might be indulged into for the purpose of waging war against
India or causing disruption of public order. Section 2 of the Unlawful Activities Prevention
Act, 1967 which deals with the demands/ assertions of cession of a part of the territory of India
from the Union, also makes itself available to deal with anti-national persons. The government
can also look at making stringent rules under Foreign Contribution Regulations Act, 2010 and
Foreign Exchange Management Act, 1999 to check on NGOs and other civil society
organizations from becoming trojan horses for foreign interests.

The Supreme Court judgement in the case of Bilal Ahmed Kaloo V. State of Andhra Pradesh39
emphasizes the above points. The court upheld the charges against Kaloo based on the violation

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of the arms act but overturned the charges under Section 124A of the Indian Penal Code. At
the end of its verdict, the court observed:

"We wish to observe that the manner in which convictions

have been recorded for the offenses under section 153A,
124A and 505(3) exhibited a very casual approach of the
trial court let alone the absence of any evidence which may
have attracted the provisions of the sections as already
observed even the charges framed against the appealing for
this offensive did not contain the essential ingredients of
the offense is at least three sections the appearance strictly
speaking should not have been put on trial for those
offenses mechanical order convicting a citizen for offenses
of such serious nature like sedition and to promote any
unity and hatred etc. does ham to the cause it is expected
add graver offense greater should be the care taken so that
liberty of the citizen is not lightly interfered with."

This statement reflects the mechanical process of the government filing sedition charges
against persons targeted by the state, judges refusing bails, and in some cases, convicting
accused persons of sedition based on flimsy evidence.4 0

In Kedar Nath V. State of Bihar, the Court struck a balance between the right to free speech
and expression and the power of the legislature to restrict such rights, determining thus:

"A citizen has a right to say or write whatever he likes

about the Government, or its measures, by way of criticism
or comment, so long as he does not incite people to
violence against the Government established by law or
with the intention of creating public disorder"

Finally, perhaps owing to growing exasperation, on 11 May 2022, the Supreme Court of India
put the sedition law on hold until review by the government. No new cases under this law will
be registered and investigated, and with persons under trial free to apply for bail.

It is therefore recognized that the availability of free speech to critique the government, under
Part III: Fundamental Rights Art. 19(1), is just as important part and parcel of collective

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national interest as the right of the government to protect itself. Infact critique of the
government is fundamental to making sure the state machinery is not subverted by the
government and continues to work under the aegis of the basic structure of the constitution.
This sentiment was echoed even in the constituent assembly when Shri Ananthasayanam
Ayyangar said "it must be the fundamental right of every citizen in the country to overthrow
that government without violence, by persuading the people, by exposing its faults in the
administration, its method of working and so on. The word 'sedition' has become obnoxious in
the previous regime." The constitution makers would not have any of the obnoxiousness creep
of the regime whose shackles they had just overthrown.

CONCLUSION

The Supreme Court has nowhere doubted the government's right to protect itself. It has even
recognized that the right to security of the government is important for collective national
interest. It has only ever questioned the diameter 4 1 of its sensitivity and asked the government
to grow a thicker skin.

The sedition law as it is suffering from the anxieties of the colonial regime which was ever
suspicious of the subjects it ruled over. This color does not suit the Indian democratic

&
republic government. While the government is justified in securing protection for itself, the
law ought to incorporate the test of "spark in a powder keg (clear and present danger)" evolved
in S. Rangarajan v. P. Jagjivan Ram 42, & the principle of "reasonable mind" laid down Ramesh
v. Union of India 43 . The suggestion of the 42nd report of the Law Commission titled -Indian
Penal Code, also needs to be looked at for inclusion of 'mens rea' in Section 124A of the IPC.
This suggestion is nothing but an echo of the judgement passed in Kedar Nath Singh v State of
Bihar and Pankaj Butalia v. Central Board of Film Certification & Ors. 4

A bill moved by Mr. Shashi Tharoor also promises to provide solutions. The Indian Penal
Code (Amendment) Bill, 2015103,45 introduced in the Lok Sabha by Mr. Shashi Tharoor in
2015 to amend Section 124A of the IPC suggested that only those actions/words that directly
result in the use of violence or incitement to violence should be termed seditious.

Now, reviewing the law is a job before the government.

The Supreme Court does not absolve the Indian public from its responsibility in maintaining
public peace & tranquility, national integrity, and sovereignty. Judgements in the cases of
Kanhaiya Kumar V. State of Delhi (NCT) & N.R. Narayana Murthy v. Kannada Rakshana

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Vakeelara 46 are most enlightening. The courts have shown willingness to hold the public
accountable to their duties. In addition to fundamental duties mentioned in Article 51A, there
are various laws hold ordinary citizenry accountable for maintaining public peace & order,
national integrity and sovereignty of India such as The Prevention of Insults to National Honour
Act, 1971. There is an option available with the state to educate the public on the importance
of the government and to exercise their right to freedom of speech and expression responsibly.
In a democracy, policies are never one-size-fits -all; while some are beneficial to a section of
the population, they could be detrimental to others. Hence, a careful critique of policies must
be placed in the public square and thus, not call for violence against the entire government.

In the end, peace is a fragile thing; it takes courage to secure it and wisdom to maintain it. If
the object behind using sedition law is at maintaining public peace and security, it must be
noted that stifling concerned, legitimate, and lawful freedom of speech and expression is not
the means to that end. Unscrupulous use of IPC 124A fosters the same hatred that it aims to
check. The voices of the people, when trampled by sedition law, are relegated to the fringes of
society, where these voices stew in the pool of their own self-victimization, radicalizing and
brewing a larger conspiracy. Peace is a state of mind and not just of the environment.

Attempts at extinguishing dissent also exhaust the real-time feedback that all governments rely
on for immediate course correction. Indians only need to look to their north and into the
histories of communist regimes of the USSR where millions starved to death47 or toward China
where unborn and newborn children were either trafficked or murdered 48 because critique of
the established government and its policies met with a crushing blow.

Freedom of speech and expression is soul ingredient of a democratic society and a nation
envisioned by the Indian constitution and must be treated as thus.

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Footnotes

1. The Constitution of India, 1950, Art. 19(1)(a)

2. Universal Declarations of Human Rights, G.A. Res. 217A, Preamble, (1948)
3. International Covenant of Civil and Political Rights 99 U.N.T.S. 171 Art. 19 (1966)
4. STEPEHEN SCHMIDT & MARK C. SHELLY ET. AL, AMERICAN
GOVERNMENT AND POLITICS TODAY 11 (2014)
5. The Indian Penal Code, 1860, Ch. 16, § 377
6. Shreya Singhal v. Union of India, AIR 2015 SC 1523
7. S. Khusboo v. Kanniamal & Anr AIR 2010 SC 3196
8. Tata Press Ltd. v. Mahanagar Telephone Nigam Ltd. & Ors, AIR 1995 SC 2438
9. International Covenant of Civil and Political Rights 99 U.N.T.S. 171Art. 19(3) (1966)
10. Parliamentary Debates of India, Vol XII, Part II (1951), cited in Para 81, Ram Nandan
v. State of Uttar Pradesh AIR 1959 All 101
11. The Indian Penal Code, 1860, Ch. VI, § 124A
12. DONOGH, A TREATISE ON THE LAW OF SEDITION AND COGNATE
OFFENCES IN BIRITSH INDIA (1911)
13. Siddharth Narrian, Disaffection and Law: The Chilling Effect of Sedition Law in Indi,
EPW, Feb 19-25 2011, Vol. 46, No. 8, pp. 33-37
14. Queen Empress v. Jogender Chandra Bose (1892) 19 ILR Cal 35
15. Queen Empress v. Bal Gangadhar Tilak ILR (1898) 22 Bom 112
16. GANACHARI, COMBATING TERROR OF LAW IN COLONIAL INDIA: THE
LAW OF SEDITION AND THE NATIONALIST RESPONSE" in ENGAGING
TERROR: A CRITICAL AND INTERDISCIPLINARY APPROACH (M Vandalos, G
K Lotts, H M Teixera, A Karzai & J Haig, 2009)
17. Constituent Assembly of India, 2nd December 1948; Constituent Assembly Debates
Official Report, Vol.VII, Reprinted by Lok Sabha Secretariat, New Delhi, Sixth Reprint
2014
18. William T. Mayton, -Seditious Libel and the Lost Guarantee of a Freedom of Speechll
84 Colum. L. Rev. 91 (1984)
19. Criminal libel and Sedition Offences Abolished, Press Gazette (Jan. 13, 2010)
20. The Sedition Act, § 2, 1798
21. Schenck v. United States 341 U.S. 494 (1951)
22. Poh Phaik Thien, Explaining the Color Revolutions, E-International Relations, July 31
2009 (10th July, 2022, 4:00 PM) https://www.e-ir.info/2009/07/31/explaining-the-
color-revolutions/
23. George C. Herring, The Cold War and Vietnam, 18 No. 5, OAH MAGAZINE OF
HISTORY 18-21 (2004),
24. Mark O'Neill, Soviet Involvement in the Korean War: A New View from the Soviet-
Era Archives, 14, No. 3 OAH MAGAZINE OF HISTORY (2000)
25. Charles G. Cogan, Partners in Time: CIA and Afghanistan since 1979, 10 No. 2, WPJ,
(1993), pp. 73-82
26. Paul Micheal McGarr, "Quiet Americans in India": The CIA and the Politics of
Intelligence in Cold War South Asia, 38 issue 5 Diplomatic History (2014)
27. Ron Nixon, US Groups Helped Nurture Arab Spring, NYT, Apr 14, 2011 (14h July,
2022, 5:00 PM) https://www.nytimes.com/2011/04/15/world/15aid.html
28. Tristan Landry, The Colour Revolutions in the Rearview Mirror: Closer Than They
Appear, 53, No. 1 Canadian Slavonic Papers, 6 (2011) see also : David Lane, 'Coloured
Revolution' as a Political Phenomenon, 25:2-3 Journal of Communist Studies and
Transition Politics (2009)

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29. Huang Lanlan, Lin Xiaoyi and Cui Fandi, Splashing $10m a year to split and subvert
China, US govt-backed foundation unabashedly reveals funding scheme, GT, Mar 09,
2021, (14h July, 2022, 5:10 PM)
https: //www. globaltimes. cn/page/202103/1217774. shtml#: -: text=The%20National%2
OEndowment%20for%20Democracy%20%28NED%29%2C%20a%20veteran,organi
zations%20and%20subversive%20activities%20in%20China%20in%202020. see also
Fact Sheet on the National Endowment for Democracy, Ministry of Foreign Affairs of
the People's Republic of China, 7h May 2022, (14h July, 2022, 5:18 PM)
https: //www.fmprc. gov.cn/eng/zxxx_662805/202205/t20220507_10683090. html
30. The Soviets in India : Moscow's Major Penetration Program, CIA (14h July, 2022)
(https: //www. cia. gov/readingroom/docs/CIA-RDP86T00586R000400490007-7. pdf)
31. Justice Oliver Wendell Holmes, Lowell Institute Boston, Lecture on his book The
Common law 1881
32. Vikram Sharma, Poor and porous: Why India needs to tighten up its border
management, The New Indian Express, September 16th 2017 (10h July, 2:00 PM)
https: //www. newindianexpress.com/nation/2017/sep/16/poor-and-porous-why-india-
needs-to-tighten-up-its-border-management-1658005. html
33. Kedar Nath Sigh v. State of Bihar AIR 1962 SC 955
34. Kanhaiya Kumar v. State (NCT of Delhi) (2016) 227 DLT 612
35. A.K. Gopalan v. State of Madras AIR 1950 SC 27
36. Deeptiman Tiwary, 399 sedition cases since 2014, pendency high, INDIAN EXPRESS,
May 31, 2022
37. Abhishek Hari, Explainer: How the Sedition Law Has Been Used in the Modi Era, The
Wire.in 12th May 2022 (14h July, 2022, 3:30PM) https://thewire.in/law/explainer-how-
the-sedition-law-has-been-used-in-the-modi-era
38. Arvind Narrain & Poorna Ravishankar, When Gandhi put the entire colonial system on
trial after being charged with sedition, Scroll.in, 30h Jan, 2021 (14h July, 2022,
3:00PM) https: //scroll.in/article/984942/when-gandhi-put-the-entire-colonial-system-
on-trial-after-being-charged-with-sedition
39. Bilal Ahmed Kaloo v. State Of Andhra Pradesh 1995 (1) SCR 411
40. Siddharth Narrian, Disaffection and Law: The Chilling Effect of Sedition Law in Indi,
EPW, Feb 19-25 2011, Vol. 46, No. 8, pp. 33-37
41. Ram Manohar Lohiya v. State of Bihar AIR 1966 SC 740
42. S. Rangarajan v. P. Jagjivan Ram (1989) 2 SCC 574
The Court held : The anticipated danger should not be remote, conjectural or far-
fetched. It should have proximate and direct nexus with the expression. The
expression of thought should be intrinsically dangerous to the public interest. In
other words, the expression should be inseparably locked up with the action
contemplated like the equivalent of a "spark in a powder keg"

43. Ramesh v. Union of India AIR 1988 SC 775

44. Pankaj Butalia v. Central Board of Film Certification & Ors (2015) 221 DLT 29.
45. The Indian Penal Code (Amendment) Bill, 2015, available at:
http://164.100.47.4/BillsTexts/LSBillTexts/Asintroduced/2535LS.pdf
46. N.R. Narayana Murthy v. Kannada Rakshana Vakeelara, AIR 2007 Kant 174
47. Holodomor,
https: //en. wikipedia.org/wiki/Holodomor#: -: text=During%20an%20international%20
conference%20held,of%20starvation%20across%20the%20USSR (10h July, 2022
10:00 AM)

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48. Nanfu Wang & Jialing Zhang, One Child Nation, 2019

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