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In light of the apparent misuse of the law of sedition by the Delhi Police in the JNU slogan shouting incidents, a closer look at the essential ingredients of the crime of sedition under Section 124A of the Indian Penal Code as clarified by the Supreme Court of India in Kedar Nath Singh vs State of Bihar (1962) is needed. 


This 1962 case was the first time that the Supreme Court had to consider the legality of the colonial law on sedition (Section 124A IPC which was enacted in 1870) in post independent India and in the context of the newly created fundamental right to free speech under Article 19. Both Section 124A and Section 505 IPC were under challenge as unconstitutional in the light of Article 19. 


Bound to deal with precedent (even if the earlier cases were from the colonial era) the Supreme Court was faced with two directly conflicting interpretations of Section 124A. The Federal Court in Niharendu Dutt's case had interpreted Section 124A in alignment with British law on sedition and held that a tendency to disturb public order was an essential element of the offence under s. 124A. On the other hand, a line of cases including the sedition case of Bal Gangadhar Tilak and culminating in the Privy Council decision in the case of King-Emperor v. Sadashiv Narayan Bhalerao  had held that incitement to violence or a tendency to disturb public order was not a necessary ingredient of the offence under s. 124A. 


The offence of sedition is an offence against the State. As understood in England the crime of sedition fell short of actual treason, and did not involve the actual use of force or violence.The following passage from the address to the Jury by Fitzerald, J., in the case of Reg v. Alexander Martin Sullivan is useful to understand the meaning of the crime of sedition as it was understood under the British Empire.   


"Sedition is a crime against society, nearly allied to that of treason, and it frequently precedes treason by short interval. Sedition in itself is a comprehensive term, and it embraces all those practices, whether by word, deed or writing, which are calculated to disturb the tranquility of the State, and lead ignorant persons to endeavour to subvert the Government and the laws of the empire. The objects of sedition generally are to induce discontent and insurrection and stir up opposition to the Government, and bring the administration of justice into contempt; and the very tendency of sedition is to incite the people to insurrection and rebellion. Sedition has been described, as disloyalty in action and the law considers as sedition all those practices which have for their object to excite discontent or dissatisfaction, to create public disturbance, or to lead to civil war; to bring into hatred or contempt the Sovereign or the Government, the laws or constitution of the realm, and generally all endeavours to promote public disorder."


In Kedar Nath Singh, the Supreme Court noted that Article 19(2) of the Constitution which carves out the right of the legislature to impose reasonable restrictions on the fundamental right to free speech guaranteed under Article 19(1) was amended in 1951 to include public order as a result of the 1950 cases of Romesh Thappar v. The State of Madras and Brij Bhushan v. The State of Delhi. 


So in Kedar Nath Singh, the question before the Supreme Court was as to the constitutionality of s. 124A and s. 505 of the Indian Penal Code under Article 19(2) with particular reference to security of the State and public order, both of which find mention in that Article. 


In its analysis of Section 124A, the Supreme Court in Kedar Nath Singh first noted that the words “Government established by law" were not a reference to “the person's for the time being engaged in carrying on the administration" but referred to the Government as the visible symbol of the State. The Supreme Court clarified that the crime of sedition was a crime against the State and was intended to protect the very existence of the State. The purpose of the crime of sedition was to prevent the Government established by law from being subverted because “the continued existence of the Government established by law is an essential condition of the stability of the State”. 


The passage which follows is the most important passage in the Supreme Court decision in Kedar Nath Singh and contains the ratio decidendi of the case. 


“Hence any acts within the meaning of s. 124A 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 tendency to public disorder by the use of actual violence or incitement to violence. In other words, any written or spoken words, etc., which have implicit in them the idea of subverting Government by violent means, which are compendiously included in the term 'revolution', have been made penal by the section in question.” 


As the above passage notes, according to the Supreme Court the essence of the crime of sedition requires acts which are intended to have the “effect of subverting the Government” by violent means. 


In Kedar Nath Singh, the Supreme Court also clarified what is not sedition. Thus it clarified that mere “strong words used to express disapprobation of the measures of Government with a view to their improvement or alteration by lawful means” is not sedition. 


It clarified that “comments, however strongly worded, expressing disapprobation of actions of the Government, without exciting those feelings which generate the inclination to cause public disorder by acts of violence” is not sedition. 


It clarified that “commenting in strong terms upon the measures or acts of Government, or its agencies, so as to ameliorate the condition of the people or to secure the cancellation or alteration of those acts or measures by lawful means, that is to say, without exciting those feelings of enmity and disloyalty which imply excitement to public disorder or the use of violence” is not sedition. 


The Supreme Court clarified that a “citizen has a right to say or write whatever he likes about the Government, or its measures, by way of criticism or comment, so long as he does not incite people to violence against the Government established by law or with the intention of creating public disorder.” Note the use of the “whatever” here. 


As a result, the Supreme Court expressly sided with the interpretation of sedition by the Federal Court in Niharendu Dutt and stressed that “incitement to violence or the tendency or the intention to create public disorder” was also an essential ingredient of the offence of sedition. The Supreme Court expressly rejected a literal interpretation of Section 124A. It also expressly rejected the Privy Council interpretation which did not require the prosecution to establish “incitement to violence or the tendency or the intention to create public disorder” as an essential ingredient of the offence of sedition. The Supreme Court justified this stand by pointing out that the crime of sedition was a crime against “the security of the State, which depends upon the maintenance of law and order” and that acts (spoken words) which did not have the “tendency to disorder or intention to create disturbance of law and order” would not amount to sedition even if such acts/ words “create disaffection or feelings of enmity against the Government”. In order to leave no doubt as to its ruling, the Supreme Court further stated that section 124A hits only those “activities as would be intended, or have a tendency, to create disorder or disturbance of public peace by resort to violence”. The Kedar Nath ruling later refers to this as acts “involving intention or tendency to create disorder, or disturbance of law and order, or incitement to violence.” 


The Supreme Court supported its interpretation of Section 124A by stating that the alternative interpretation would render the provision unconstitutional under Article 19 (1) and (2). 


So to summarize, the Supreme Court has stated that Section 124A cannot be interpreted literally. The two essential ingredients required to establish the crime of sedition under Section 124A are 


(i) the acts complained of must be intended to have the “effect of subverting the Government” by violent means; and 

(ii) the acts complained of must be intended, or have a tendency, to create disorder or disturbance of public peace/ law and order by resort to violence and must incite violence. 


Therefore, mere slogan shouting against the State or the Government established by law which is not intended to have the “effect of subverting the Government” by violent means; and which is not intended to, nor has the tendency, to create disorder or disturbance of public peace/ law and order by resort to violence; and which does not incite violence will not amount to the crime of sedition under section 124A. 

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Like +0 Object -0 Seema Sapra 17 Feb 16, 11:35
Fali Nariman today in http://indianexpress.com/article/opinion/columns/jnu-row-a-test-of-freedom/

"... sedition” in India is not unconstitutional, it remains an offence only if the words, spoken or written, are accompanied by disorder and violence and/ or incitement to disorder and violence. Mere hooliganism, disorder and other forms of violence, though punishable under other provisions of the penal code and under other laws, are not punishable under Section 124A of the penal code. Likewise, mere expressions of hate, and even contempt for one’s government, are not sedition. When a person is dubbed “anti-Indian”, it is distasteful to India’s citizenry, but then to be “anti-Indian” is not a criminal offence, and it is definitely not “sedition”.
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Like +0 Object -0 Seema Sapra 17 Feb 16, 11:51
Read the companion piece by me titled - How We the People of India must respond to the recent #JNU incidents - on Legally India at http://www.legallyindia.com/blogs/how-we-the-people-of-india-must-respond-to-the-recent-jnu-incidents
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Like +0 Object -0 Seema Sapra 17 Feb 16, 12:16
Interesting issue with respect to sedition in Maharashtra, wonder if there have been further developments.
http://timesofindia.indiatimes.com/india/Withdraw-Maharashtra-circular-on-sedition-say-legal-experts/articleshow/48841003.cms
Can the executive even issue a circular that would guide the Police in whether or not to invoke a penal provision?
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Like +0 Object -0 Seema Sapra 17 Feb 16, 12:48
Read the Bombay High Court on sedition in the cartoonist Aseem Trivedi case. https://www.sabrangindia.in/judgements/bombay-high-court-judgement-aseem-trivedi-sedition-case

The second guideline issued by the Bombay High Court is misplaced. Kedar Nath expressly clarified that sedition involves challenging the Government established by law and not actual persons who may hold Govt posts. So words against particular individuals would never come with the ambit of 124A irrespective of whether or not the words show them as representatives of Government.
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Like +0 Object -0 Ram Prakash Patel 19 Feb 16, 11:41
Nicely written article.
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Like +0 Object -0 Gautam Dhamija 23 Feb 16, 12:02
I think this article has mis-interpreted the decision of Kedar Nath.
"
It clarified that “comments, however strongly worded, expressing disapprobation of actions of the Government, without exciting those feelings which generate the inclination to cause public disorder by acts of violence” is not sedition."

Here what has to be seen are the words "strongly worded" "exciting those feelings" "generating the inclination to cause public disorder". If we see these words in conjunction with each other and the statement of the students "bharat ki barbaadi" and "will destroy India" what will surface are the basic ingredients of "Sedition".

Please have this view as well before concluding whether these people have committed the offence of sedition.
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Like +0 Object -0 Seema Sapra 23 Feb 16, 13:40
To Gautam Dhamija,

It clarified that “comments, however strongly worded, expressing disapprobation of actions of the Government, without exciting those feelings which generate the inclination to cause public disorder by acts of violence” is not sedition.

This is a verbatim quote from the Kedar Nath decision. So there is no scope for misinterpretation on my part in this sentence.

What you are suggesting is that the JNU 'facts' included the generation of "the inclination to cause public disorder by acts of violence".

That's really not true.

Kedar Nath clarifies that a literal interpretation of Section 124A is wrong and that the intent must be to overthrow or subvert the Government established by Law.

There is a subsequent powder keg test too that the Supreme Court has imposed. Feel free to look it up. Its mentioned in P Chidambaram's recent news opinion article on sedition.
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Like +0 Object -0 Arvind Lavakare 23 Feb 16, 16:35
One of the JNU slogans on the JNU campus was (as translated in English) "Will wage war till the nation is broken into pieces". If this is not a threat of endless till the objective is attained --- is it not sedition by Kedar Nath Singh verdict of the Supreme Court?violence
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Like +0 Object -0 Seema Sapra 23 Feb 16, 16:51
What was the actual slogan in Hindi? "Bharat ki Barbadi tak Kashmir ki Aazadi tak jung karenge jung karenge"?
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Like +0 Object -0 Seema Sapra 23 Feb 16, 16:53
Arvind Lavakare, what was the slogan you refer to in Hindi?
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Like +0 Object -0 Seema Sapra 23 Feb 16, 18:12
Arvind Lavakare, also can you share the video where any of the accused JNU students can be clearly seen shouting this slogan. Has such video been authenticated forensically to establish that voice was not added to the visuals later Can you attach the voice to particular individuals? The Police did no such thing but arrested Kanhaiya and had him beaten up.

Also Kashmir is a complicated issue. You can't force people to love India or want to be part of it. You need to convince them by word and deed that being part of India is in their interest. For the last 60 years, the BJP and RSS message to Muslims has been one of animosity and hatred. Will Kashmiri muslims want to remain in India if India becomes a Hindu Rashtra? The government of the day is not always the best guardian of our national interests. Was demolition of the Babri masjid the best way to convince Kashmiri muslims to remain part of India? Will sending the Indian army to fight with US forces in the middle east (as the BJP govt is contemplating) help convince Kashmiri muslims to stay with India.

Also, these are students and not jihadis at JNU. If some very objectionable slogans were shouted the University administration should have been used to talk to the students and to warn them that they must be careful that they are not infiltrated by people advocating violence. Dialogue works, not force. The University should have helped the students draw the line they would not allow to be crossed. The University and faculty should have set up dialogues on the slogans being shouted and issues being raised so that discussion could happen without crossing lines. And in a university, these lines must only prohibit that which is illegal. Everything else must be allowed to be said.

Condemning the State is allowed under our Constitution. Discussion of Kashmir is allowed. Discussion of terrorism is allowed. We can discuss whether Afzal Guru's trial was fair and we can disagree with the Court verdicts. Slogans on these topics are also allowed.

Our Constitution permits us to think anything and even say anything as long as we are not advocating violence.

When someone uses the word jung, it is not necessarily a call to violence. Jung means battle. It can also be a non-violent battle.

When you apply the criminal law on sedition, you must be really really sure that the accused deserves it.

The BJP and RSS agenda here is different. They are seeking to establish ABVP control over universities. They want to stifle any ideas or speech that challenges their narrative. The BJP and RSS ideology is by definition narrow-minded.

Can we also be sure that the JNU incident was not instigated/ planned by the BJP and ABVP. There is some evidence to think so. Has this been investigated? JNU was under attack for the last several months. Did the BJP deliberately add fuel to what was happening at JNU using the ABVP so that they could bring the University under their control. How can we even know that the ABVP/ BJP did not bring in outsiders to shout objectionable slogans. The Feb 9th incident looks staged.
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Like +0 Object -0 Vinay 18 Mar 16, 16:27
Dear Seema Madam,
Thank you for this explanation. However i have a query
- Both the conditions mentioned above contains the 'intention of the act'.Pray tell me how is this intention justified? is it an event after the proposed act or the act itself
eg: a) if an act (oral/written) merely states the fact, however the public order get disturbed by this information itself
b) if an act (oral/written) has every ingredient of public order getting disturbed, however the public in effect takes it as a joke and does not react to it
which of the above a) or b) or both qualify this offence?
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Like +0 Object -0 Seema Sapra 26 Mar 16, 13:48
Vinay, are you a lawyer, your question is so badly drafted. And you don't need to "Madam" me.
What do you mean by "intention justified"?
How is intention according to you an "event"?
How is intention according to you an "act"?
What "fact" are you talking about?
What "information" are you talking about?
Your convoluted and incoherent question is about "effect" and whether the consequence or effect of the alleged seditious act is relevant in determining whether the offence was actually committed.
If the public treats an alleged seditious statement as a joke, then is it sedition? I think not. The intention must be both subjectively (from the position of the alleged offender) and objectively assessed. If A has the intent to incite violence against the State. but his statement does not incite violence and is in fact treated as a joke by the target audience, it cannot be said to have the tendency to incite violence or public disorder and the act cannot be sedition.
If A has no intent to incite violence, but his statement makes some lumpen aggressive stupid people to commit violence or to use the statement as an excuse for violence, then we really have a Patiala House Court like situation where A has certainly not committed sedition but the persons who became violent have certainly broken the law.
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Like +0 Object -0 shivam jain 30 Sep 16, 10:10
Hello mam,as you are more knowlegible than me i can call you mam as you can teach me something...
I am not getting one thing what are those words which can promote hatred or disaffection towards government established by law or what are those comment which can incite people to do violence can we say "kashmir jab tak ajad nhi hoga hm jung krte rhenge" as inciting slogan to violence.as you said earlier jung can be fought by violent or may be non violent means both but can still this slogan is not inciting or inclining people to do violence...
In short my doubt is how can we classify which comment can incite violence against state or which can not....it will be helpful if you can give me some examples of slogan which can incite people to violence or public disorder....thank you so much mam.
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Like +0 Object -0 SahilBalotra 30 Jun 17, 16:22
I'm satisfied with your logic. But don't you think it is not morally correct to condemn our state.
Happy with your criticism of Government and even the BJP or RSS but criticising one's country is not correct at all.

And yes it is true that there was no effective evidence and not even a charge sheet was filed in JNU case. But if there were slogans already mentioned then it is a case of additional. And I think Supreme Court have to alter it one day.

Thanking you for your valuable ideas...
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