Sedition Law in India: A Timeline

The Indian Penal Code (IPC) was drafted by Thomas Babington Macaulay (1800-59) and passed in 1860 by the Legislative Council. However, Section 124A of the IPC, which criminalises ‘disaffection towards the Government established by law’ or sedition, was introduced by British politician and lawyer James Fitzjames Stephen through an amendment in 1870. Scholars have argued that the amendment was passed in response to growing Wahabi activities in the subcontinent. The British claimed that the amendment was introduced to account for political conditions in India—‘Language may be tolerated in England which it is unsafe to tolerate in India because in India it is apt to be transformed into action instead of passing off as harmless gas’.

India’s first case on sedition was heard the Calcutta High Court in 1891 in Queen Empress v Jogendra Chunder Bose. The proprietor, editor, manager, and printer of a Bengali magazine Bangobasi were all tried for sedition for publishing an article criticising the British government’s raising of the age of consent for sexual intercourse. While the trial was held, the charges against the accused were ultimately dropped after they tendered an apology.

Bal Gangadhar Tilak, a key figure in the independence movement, was convicted of sedition twice. In 1897, Tilak was convicted by the Bombay High Court for his speeches at a Shivaji festival that had allegedly prompted the murder of two British officers. The presiding Judge broadened the scope of ‘disaffection’ towards the government under Section 124A of the IPC to include disloyalty. In 1908, Tilak was convicted of sedition once again by the same Court for his writings in Kesari, the Marathi newspaper he founded in 1881.

In 1922, Mohandas Karamchand Gandhi was charged with sedition and tried at the Sessions Court in Bhadra, Gujarat, for his politically sensitive articles in the Young India journal. Both Gandhi and the publisher of the journal pled guilty. At the trial, Gandhi read out a statement detailing the history of his disaffection towards the British government. He referred to Section 124A of the IPC as suppressing the liberty of citizens, stating that ‘affection [towards the government] could not be manufactured’. Gandhi was convicted and sentenced to six years in prison.

In 1942, the Federal Court of India defined sedition as leading to ‘public disorder or the reasonable anticipation or likelihood of public disorder’. The Court emphasised that sedition implies some form of resistance or lawlessness. This decision was subsequently overruled by the Privy Council in King Emperor v Sadashiv Narayan Bhalerao (1947).

In April 1947, while discussing the (yet to be enacted) Rights to Freedom of Expression in the Constituent Assembly Debates, Vallabhbhai Patel proposed an exception for ‘seditious’ language—saying that it must serve as an exception to the right to free speech. After further debate, the Constituent Assembly rejected this proposal in 1948 on the basis of a proposal by K.M. Munshi, who cited the colonial origins of the provision and how it had been used to stifle the independence movement.

In 1950, the SC held that the State of Madras’s decision banning the circulation of a leftist journal on the basis of ‘public safety’ violated the Right to Free Expression. Justice Patanjali Shastri emphasised that the Constituent Assembly had specifically deleted the word ‘sedition’ as an exception to the Freedom of Expression.

A 5-Judge Bench of the SC upheld the constitutional validity of the Section 124A of the IPC. The Court conceded that while the criminalization of sedition imposed a restriction on the Right to Free Speech under Article 19(1)(a) of the Constitution of India, 1950, it was nevertheless a ‘reasonable restriction’ within the meaning of Article 19(2) (which states the restrictions that may be imposed on the Right to Free Speech) and could not be struck down.  

However, Justice P.B. Sinha, writing for the Court, clarified that criticism of the government did not amount to sedition unless it was accompanied by an incitement or call for violence. Some have argued that the Court in Kedar Nath did not provide direction about who decides if there is an incitement to violence.

A two-Judge Bench of the SC reaffirmed its earlier decision in Kedar Nath. The petitioners in Balwant Singh had allegedly raised incendiary slogans after the assassination of Prime Minister Indira Gandhi and were convicted of sedition by the lower courts. The SC acquitted the petitioners, stating that merely raising slogans without any other action that incites violence did not amount to sedition.

In 2018, two journalists were charged with sedition for their posts on social media platforms criticising government functionaries. In 2021, they filed a writ petition at the SC challenging the constitutionality of Section 124A of the IPC. They argued that the provision infringes on an individual’s rights to Freedom of Expression under Article 19(1)(a) of the Constitution, and that the restriction imposed by Article 124A is not a ‘reasonable restriction’ within the meaning of Article 19(2). They further claim that the precedent set by the SC in Kedar Nath in 1962 is archaic as it has not stayed abreast of current laws concerning safety, security, and public order. Other petitions challenging the constitutionality of this provision have also been tagged with this petition.

A two-Judge Bench of the SC quashed the sedition FIR filed against late journalist Vinod Dua for his comments on the Prime Minister’s handling of the COVID-19 crisis. Justice U.U. Lalit held that while Dua had criticised the government, his comments could not be termed as seditious. Dua’s petition further asked the SC to constitute a committee that would screen FIRs against journalists. In its Judgment in this case, the Court reiterated its earlier decision in Kedar Nath, but refused to constitute a screening committee as this would breach the legislature’s powers.