A journey which began in 1942 with Three Justices of the Federal Court of British India deciding Niharendu Dutt Majumdar [1942 FCR 38] ended in 1962 with Five Justices of the Supreme Court of India deciding Kedar Nath Singh [AIR 1962 SC 955]. The outcome of this journey will soon be revisited, with the Indian Supreme Court having agreed to reconsider the validity of the sedition offence as codified in Section 124-A of the Indian Penal Code 1860 [IPC]. It presents as good an opportunity as any to revisit this past. Not from the doctrinal lens which is too often reduced to a three-part act, with Niharendu and Kedar Nath Singh standing at either end of the story, and the Privy Council opinion in Sadashiv Narayan Bhalerao [1947 UKPC 8] being sandwiched in the middle. Rather, I thought of travelling across the two decades with the limited time and resources available to me to try and offer a glimpse into this fascinating period of Indian legal history.
The Many Forms of the Sedition Offence
Traditionally, when we think of sedition in India, we think of Section 124-A of the IPC. It may come as a surprise that neither Niharendu nor Sadashiv were judgments considering Section 124-A, but were tasked with interpreting other offences which incorporating nearly identical language as that of Section 124-A.
The chief culprit in both those decisions was Rule 34 of the Defence of India Rules, passed under the Act of 1939, where Rule 34(6)(e) of those Rules punished more or less the same offence as Section 124-A as a 'prejudicial act'. In addition to this was the Indian Press (Emergency Powers) Act of 1931. An already draconian law was amended in the wake of the Civil Disobedience Movement of 1932 to enable shutting down of any publication that ran material which fit the definition of sedition (besides enacting a whole slew of other repressive measures). There were some other laws as well, such as the Police (Incitement to Disaffection) Act 1922, but the chief measures to curb political speech for the period under consideration appear to be the first two statutes that I mentioned.
Were all of these laws punishing exactly the same offence? At one level, yes, and that is what the Federal Court concluded in Niharendu in respect of the Defence of India Act and Rules. However, the Privy Council differed slightly and noted that, if anything, the Defence of India Act formulation was broader than Section 124-A of the IPC because of the prefatory words to 'prejudicial act'. And the same could be said of the restriction under Section 4 of the Press Act which covered acts that tended either directly or indirectly to excite disaffection or bring the government into hatred or contempt. All this goes to show the width of potential restrictions that the government of the day could impose to curb critical speech.
The Journey from Niharendu to Kedar Nath Singh
The two decades of history bookended by these two decisions sees many changes in the legal and political landscape. It is oddly circular if you look back at it. There is a war, there is independence, there is the coming of a Constitution, there is a hasty amendment to that Constitution, there is loss of independence for some parts (and integration into India), internal turmoil, and finally there is war again. To think that these events had no impact on how the government(s), the legislature, the courts, and of course the ordinary public, thought of political speech is difficult to say the least. Reconstructing that narrative in all its depth requires far more time, effort, and resources, that I have available at my disposal. But it is still important to keep this bit of information at the back of one's mind as we move along the years looking at how courts engage with the sedition offence in its many forms.
Another thing to remember is that my drawing the line at 1942 and starting with Niharendu is an arbitrary decision. It excludes looking at one of the more interesting shifts in governance during the colonial period — the coming in of nationalist governments at the provincial level and the impact this has on sedition. Not merely at the level of studying cases, but seeing the assembly debates, correspondence, and other letters (especially since prosecuting sedition would require official sanction and would generate correspondence). Lots to consider for those interested.
Part One: From Niharendu till Sadashiv
The judgment of the Federal Court in Niharendu is quite fascinating from an institutional perspective [as was the Federal Court more generally, as Rohit De has written]. The Petitioner was a member of the state legislature. He had not been sentenced to anything harsher than being detained till the rising of the court. And yet, he took the case — and the courts agreed to hear it — all the way up to the Federal Court. He got a good chiding for his speech, but that was a small price to pay for the Court not only overturning his conviction but doing so by raising the barometer for what counted as sedition. By this I refer to the ruling of the Federal Court that this crime required establishing that the offending speech had some intention or tendency to incite disorder.
Since Niharendu was rendered by the Federal Court, which sat at the top of the judicial hierarchy in India it was bound to be followed. But it certainly did not stop prosecutions from being launched for sedition even in absence of the disorder requirement, which either ended in acquittals by trial courts or convictions being overturned by high courts [see example, here, here]. One such prosecution was the one in Sadashiv, where the accused had admitted to publishing leaflets on behalf of the Hind Communist Party regarding the war effort which criticised the 'Imperialists' and their oppression of the people. This prosecution ended in an acquittal at the trial court, which was upheld by the High Court in 1944.
Again, it is interesting that the government chose to appeal it to the Privy Council. Niharendu was in clear conflict with earlier Privy Council judgments and sedition was a crime across the Empire so challenging this decision to clarify the law is an obvious motive. On the other hand, this is late 1946, the war has ended and there are more important things going on, and India itself has seen the Constituent Assembly start work, so the Privy Council archives (and others) are bound to reveal interesting correspondence on what led to the appeal being filed and pursued. That too without the defendant; the opinion states that the hearing was only to clarify the law and the government had undertaken to not launch a fresh prosecution.
If setting aside Niharendu was the objective, the Crown succeeded. In February of 1947, while the first draft of the Fundamental Rights chapter for India's Draft Constitution was nearing completion, the Privy Council allowed the appeal in Sadashiv and held that there was nothing in the text of Section 124-A of the Penal Code that could justify inserting a restriction of the kinds done by the Federal Court. They weren't wrong — the text at no place carries such a requirement to link the speech with disorder. But it would not be out of place to suggest that the Privy Council's view was out of step with prevailing mores. This would become apparent in India almost immediately.
Part Two: From Sadashiv till the First Amendment to the Constitution
In February 1947, the Privy Council rendered its opinion in Sadashiv. In August of that year, India attained its independence and the nationalist government came in power across the country. How did the governments at the centre and state levels react to controversial or critical political speech? It is an impossibly difficult question to answer as there was the human cost of Partition to reckon with at the time. Which makes it rather unsurprising to find that the authorities were liberally resorting to the authoritarian playbook to quell the violence by passing various public safety acts or using existing ones to do so. This, naturally, also meant giving any critical or controversial speech short shrift.
It makes sense that authorities in now-partitioned Punjab were not averse to using coercive powers to curb publications that they thought of as problematic, even as these may not cross the legal thresholds. To do so, authorities resorted to powers under the Press Act that gave a free hand to restrict 'seditious' speech through a clause, which if you recall, was actually broader than sedition (and that principal offence itself had been unshackled by the Privy Council in Sadashiv).
In this vein we find that the publisher of 'Weekly Insaf' was directed to furnish hefty security to continue running his printing press after having run an article in August 1948 which the authorities claimed tended to bring the government into hatred or contempt, or excite disaffection against the government established by law. In a judgment delivered that December [Kidar Nath, AIR 1949 Cri LJ 756], the High Court set aside the order directing security. Importantly, it observed that:
"To accuse the ministers of imbecility was held not to be an offence [in England]. It will be placing unwarrantable restraints on the liberty of the press if a more stringent view of the matter is taken in India. This is all the more important since the attainment of independence; and the public and the press must be allowed considerable latitude in expressing themselves and in criticising the acts of the government in order to redress the grievances of the public."
Prior to the orders against 'Weekly Insaf' there had been action by the East Punjab Government demanding security against a separate publication, an Urdu daily newspaper 'Pratap', in February of 1948. Then, there were orders in May 1948, forfeiting this security to the government, after the paper ran two pieces — one a letter to the editor, and the other a news item — that tended to bring the government established by law into hatred or contempt or excited disaffection against it according to the authorities. These orders were challenged, and eventually set aside by a Full Bench of the High Court in April 1949 [In the matter of an Urdu Newspaper 'Daily Pratap', 1949 CriLJ 813].
What is notable is how strongly worded the unanimous opinion, authored by Das C.J. was (he would later go on to become Chief Justice of the Indian Supreme Court and be part of some important decisions on the subject of laws curbing speech). The opinion express full support for the idea that sedition ought to be a crime and offers a wonderfully succinct summing up of the law as it stood at the time. It notes that it was not possible to read in the safeguards of English law on sedition into the Indian law, "however much we may regret it", of linking the speech with intention to cause disorder. Even so, the Court did not find the pieces in question as meeting the threshold of tending to bring the government into hatred or contempt or exciting disaffection against it. Such a view seemed possible in this case only if one read a passage in the pieces "hoofed of its context" in respect of the offending letter to the editor. And in respect of the news item, the Court was simply baffled with the supposed problems the government had with what was a true and correct report. The opinion ends with a startling set of observations:
"Before we conclude, we desire to state that these proceedings clearly bring home to as that the official mind still moves in old groove of suspicion and distrust. The change in the situation in the country and the new atop do not appear in the least to have brought about any change in the outlook of the executive and the old vain susceptibilities still linger in their mind. Our newly won freedom has not broadened their vision and they are still prone to stifle legitimate comments and criticisms. The outpourings of aggrieved persons who pray for redress instead of being appeased are sought to be smothered with the handy weapon of the law of sedition. We do feel that the law of sedition in our country should no longer be left in the nebulous state in which it is by reason of the judicial decisions based on the true but nevertheless narrow principle of construction. It is desirable that the safeguards let in by the Federal Court in its judgment in Niharendu Dutt Mujumdar's case should be incorporated in our law of sedition and our Press Act, for these very proceedings clearly demonstrate, to our mind, that people still require protection against the Executive Government even though it is our National Government."
Striking is the fact that there was a separate forfeiture order against the same publication, which was also challenged and struck down by a judgment delivered by the High Court a few months thereafter in July 1949 [1950 CriLJ 725]. The lead opinion by Ram J. again made some remarkable observations:
"I am not a little surprised that the Chief Commissioner should have considered it necessary to base an order of forfeiture on this material. Item 1 was published more than five months before any action was taken by the Chief Commissioner, The desire to stifle legitimate criticism is to be deprecated and the press must be allowed more liberty of expression. The proceedings in this case would appear to show that even innocent and harmless utterances of the press are looked upon with disfavour by the executive authorities."
To think that all High Courts were setting aside proceedings under the Press Act is a stretch [for instance, see here]. But it certainly appears to have been the dominant view. Another example comes from a case, in the other partitioned state, on the question of suppressing political speech came in context of action taken by the West Bengal government in relation to a paper called the 'Saptaha' in March 1949. Orders forfeiting the security furnished under the Press Act were passed after publication of pieces criticising the handling of political prisoners. The Calcutta High Court upheld the orders of forfeiture in a judgment delivered in August 1949 [AIR 1950 Cal 444]. But even whilst doing so, all three opinions were at pains to note that adhering to the position in Sadashiv would stifle a great deal of legitimate criticism in the nation that was now an independent democracy.
To cite more cases would only belabour the point [if interested, see here], which is that between 1947 and the coming of the Indian Constitution in 1950, it was certainly not the dominant intention of all arms of the new Indian State to breathe more life into critical speech. This new nation had not even begun to stand on its feet as its administrators were tasked to deal with a humanitarian crisis of unparalleled proportions. Restoring the sense of normalcy that prevailed prior to the Partition became the immediate objective and to achieve this, nationalist administrators turned to the same playbook that had served the colonial regime so well before them. It fell to the courts to remind the administrators that they could not simply go on as before, as they were now dealing with citizens not subjects. Citizens had a right to criticise the state and government established by law. This was not a formal right recognised in a document as the Constitution was yet to come into force, but a natural right that inhered in the public of a democracy.
The formal right soon came as well, in the form of Article 19(1) of the Constitution of India. The absence of the words 'public order' from the clause codifying restrictions was notable and has been a regular topic of discussion over time. One of the facets that makes this absence remarkable is the prevalence of public order statutes across the country at the time. There were 'public safety' or 'public order' statutes in almost every province, which as I mentioned above were passed to confer broad powers upon the authorities to mainly deal with the violence of Partition but were often used for much more. To willingly forsake this legal concept of public order or public safety to limit speech when crafting the Constitution, in spite of these being exceedingly prominent at the time, speaks volumes about the document and its emphasis on securing the rights of citizens. That some parts of the prevailing public order and public safety acts were some of the first pieces of legislation to be declared unconstitutional by the new Supreme Court of India in Brij Bhushan [1950 SCR 605] and Romesh Thappar [1950 SCR 594] caps an astounding turn of events.
The security and forfeiture provisions of the Press Act, though, were held as constitutional by the Calcutta High Court in April 1950 (a month prior to Brij Bhushan and Romesh Thappar) [Ramesh Saha, AIR 1951 Cal 36]. When a similar challenge came up before the Punjab High Court in context of seizure of a book after the Supreme Court had interpreted Article 19, a majority did not hesitate in declaring Section 4 of the Press Act as unconstitutional for it condemned a swathe of utterances besides those having a tendency to overthrow the state [Amar Nath Bali, 1951 CriLJ 261]. In dissent, Kapur J. agreed that this particular order of the executive was bad, but could not join the majority in declaring Section 4 of the Press Act as going beyond the scope of permitted limits on free speech. Relying heavily on prevailing U.S. law, he batted for an approach that allowed more play in the joints for each case by adopting a test of reasonableness. There was vagueness in the clause, and if authorities abused their power then that abuse or misuse could not be seen as determinative of the legality of the clause itself. For him, expanding the logic of Brij Bhushan and Romesh Thappar across the board would mean that provisions such as Section 153-A of the Penal Code would also fall by the wayside, and that was certainly beyond contemplation.
Striking down of Section 153-A and 124-A of the Penal Code (as well as parts of the East Punjab Public Safety Act) by a different bench of the Punjab High Court is exactly what happened a few months later in Tara Singh [1951 CriLJ 449]. The opinion says peculiarly little about the specific acts that resulted in the Petitioner being prosecuted of these offences. What is even more curious, and also telling from the view of hindsight, is that the government argued that while the statutory clauses are vague, so was Article 19(2), and the Court should try to adopt a construction of the law that renders it valid. Such an interpretation could be found in Niharendu. This time, the High Court disagreed, noting that a bare reading of Section 124-A did not support any such limitation, and it was impermissible to read in new phrases into a penal statute. Ironically, sticking to the expansive logic of Sadashiv is what condemned Section 124-A.
For the interim Union Government, these opinions confirmed the judiciary was realising their worst fears of permitting all sorts of disreputable and incendiary speech at a time when the country was still reeling from separatist rhetoric. The outcome of the decisions in Brij Bhushan, Romesh Thappar, Tara Singh is well documented. It led to amending Article 19(2) to clarify that restricting speech in interests of public order was not beyond the pale [something hinted at in the dissenting opinion of Kapur J. in Amar Nath Bali]. The new formulation widened possible grounds for limiting speech and expression while adopting a test of reasonableness to decide if government action was valid.
Another less widely documented development was the repeal of the Press Act of 1931. Perhaps this was in line with Prime Minister Nehru's remarks at the time of bringing in the amendment to Article 19 that sedition was an obnoxious offence that deserved no place in India's laws. But removing the hydra required much more than repealing one of sedition's manifestations in the law.
Part Three: From the First Amendment till Kedar Nath
The First Amendment continues to divide foes and friends. For some, it put the bird of free speech back in the cage by broadening restrictions. For others, it did broaden possible grounds for curbing speech but in fact ushered in a more sensible regime by inserting a reasonableness requirement which meant there had to be a real connection between the offending speech and the problems Article 19(2) identified rather than a mere formalistic one.
If we look at how courts took to interpreting Article 19 in the wake of the amendment, it appears that some judges thought the amendment allowed more restrictions to free speech. The clearest adherent to this view appears to have been S.K. Das, J., during his time as a member of the Patna High Court [incidentally, the first Justice to the Supreme Court of India without a legal background; he was an ICS officer]. His decisions in Debi Soren [1954 CriLJ 758], Ramanand Tiwari [AIR 1956 Pat 188 - in context of a 1947 law on maintaining essential services] took a view that amended Article 19(2) was broad enough to embrace the Privy Council's reading of the sedition offence in Sadashiv — even as he expressly disapproved of that interpretation as being 'unduly literal'. The key, he argued, was that the amendment permitted restricts not for maintaining 'public order' but those 'in the interests of' public order, which was a broad formulation. Importantly, around this time, a separate bench of the Patna High Court upheld the convictions of Kedar Nath Singh by a judgment in April, 1956.
Then was the view of the Gauhati High Court which agreed that the amended Article 19 was a broader set of restrictions, but even so did not save Section 124-A in its entirety [Sagoslem Singh, 1955 CriLJ 184].
And practically on the other side of this spectrum was the view of the Allahabad High Court. It construed Article 19(2) by reading 'public order' narrowly and interpreting the reasonableness prong as requiring a proximate link between offending speech and threat to disorder [Das J. expressly rejected this approach in Ramanand Tiwari]. This led a full bench of that Court to unanimously strike down Section 124-A in May 1958 while deciding a batch of appeals [Ram Nandan, AIR 1959 All 151], with three separate concurring opinions being authored. The government seems to have adopted a two pronged approach — it first argued that restrictions suggested in Niharendu ought to be read in to the law, which the Court declined for this would amount to re-writing the text. Next, the government sought to overcome absence of any public disorder requirement by claiming that comments causing disaffection under Section 124 had an inherent tendency to cause such disorder. This framing was regarded as far too broad by the Court, and its dangers were elaborated to different degrees by the three opinions.
The appeals filed against Ram Nandan and other judgments were finally decided by a Constitution Bench of the Supreme Court in Kedar Nath Singh in 1962 [which incidentally consisted of S.K. Das, J.]. While it agreed with the Allahabad High Court that the sedition offence could not be saved as it stood on the statute book, the Supreme Court was not hamstrung by precedent to craft a different reading of the law if needs required. Needs did require, and so it decided to conduct the kind of judicial surgery of a statute which the High Courts had deemed inapposite. The Court read in a requirement of the speech to excite disorder or use of violence, and retained the law on the books. Less than ten months thereafter, India found itself in the middle of a war where the Defence of India Act and Rules would be revived with the 'prejudicial act' definition being as it was when Niharendu and Sadashiv were decided; only Rule 34(6)(h) was now Rule 35(6)(e).
Taking Stock
The point of this post is not Kedar Nath Singh, but the journey to this destination that spans two decades. We saw that between 1947 and 1950, the High Courts were unhappy with the literal reading of Section 124-A preferred by the Privy Council in Sadashiv, and even more unhappy with how the provincial governments were using the idea of sedition to muzzle political speech. Between 1950 and 1958 there had been several challenges to the validity of sedition and similar offences / laws. State governments fought for validating the sedition offence within the folds of the new Constitution, as well as fought for retaining broad powers that vested curbing speech and expression on a similar logic under other laws [the Dramatic Performances Act 1876, for instance; or using the Police Disaffection law; or suspending agitating public servants under conduct rules]. Nowhere did the Union Government intervene, nor was any bill pushed to formally repeal sedition and allied laws. So, while the Union Government claimed to dislike sedition — recall the speech of the Prime Minister during debates on the First Amendment to the Constitution— this dislike was seemingly not reflected in practice.
The manner in which the state governments sought to defend sedition when it was challenged is important. The first line of argument was to invite judges to rewrite the law, in line with Niharendu, and acknowledge the need for an explicit test linking the offending speech with an intention to cause disorder. The High Courts disagreed for reasons of principle and precedent. Principally they saw this as rewriting the offence which was beyond the judicial role. On precedent they considered the opinion in Sadashiv as having been accepted by the Indian Supreme Court as correct and thus binding on High Courts. The second, alternate line of argument, was that sedition is so obviously connected with public order that it was justified under Article 19(2). This meant either claiming that the phrase 'interests of public order' did not necessarily require disorder, which the Patna High Court agreed with; or claiming that a tendency to public disorder was inherent in sedition, which the Allahabad High Court rejected as being an extremely broad view of the law.
Equally noteworthy is what was not being argued in court. The debate on whether sedition itself ought to be a crime in the first place was lukewarm at best. The dominant view seemed to treat sedition somewhat like obscenity; part of a category of harmful speech that did not deserve legal protection yet seemingly incapable of precise definition. The only issue for courts used to become whether the extant formulation of the Penal Code curbed the dangerous speech without casting too broad a net to also embroil a great deal of fair criticism.
One would imagine that concerns about overbreadth would mean being critical about the usage of phrases like 'hatred', 'contempt', and 'disaffection' to describe the allegedly problematic speech and this vagueness resulting in the offence being declared unconstitutional. But this was not so. Much like their colonial predecessors, Courts in independent India took the view that they knew what real disaffection or hatred was when they saw it so the vagueness of the phrases was not a problem. Instead, the problem was a lack of clear signalling to the government, which could be resolved by inserting the disorder requirement in the offence. This was, after all, at a time when Articles 19 and 21 were of a rather limited import and the main emphasis to secure fairness was insertion of procedural tests to first curb the exercise of power and then confer sufficient opportunity for review. Vagueness as a test for determining the validity of crimes was not a theory in vogue, not only in India but also the world [the U.S. Supreme Court adopted it only in 1972 with Papachristou]
Summing up then. Reading Kedar Nath Singh suggests a compromise was being struck by the Supreme Court. By looking at a sliver of the rich history of judicial engagement with the sedition offence as under Section 124-A of the Penal Code and allied laws, this post sought to help shed more light on the context behind Kedar Nath Singh as we return to re-evaluate the choices it made.
[Disclaimer: The author is part of the legal team involved in one of the petitions challenging the validity of the sedition offence]
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