- This post is from a series of posts dealing with basic Indian content laws. Other posts from the series can be accessed at Content101.
Defamation law, in general, does not prohibit critical statements being made in public about persons if those statements are true (and, possibly, if their publication is in the public interest). There is one notable exception to this general rule though: it does not apply when it is the State which is defamed.
Otherwise known as sedition, the law relating to defamation of the State is a law which is a legacy of the British Raj, and its bare text is every bit as stringent as one would expect a law from that era controlling criticism of the State to be. The offence is articulated in Section 124A of the Indian Penal Code which reads as follows:
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 established by law in India, shall be punished with imprisonment for life, to which fine may be added, or with imprisonment which may extend to three years, to which fine may be added, or with fine.It is also dealt with in the Code of Criminal Procedure, 1973, which states that it is cognizable, non-compoundable and non-bailable, and that a Court may only take cognizance of the offence or a criminal conspiracy to commit the offence if the prior sanction of the Central Government or of the State Government has been obtained.
Explanation 1.—The expression "disaffection" includes disloyalty and all feelings of enmity.
Explanation 2.—Comments expressing disapprobation of the measures 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 administrative or other action of the Government without exciting or attempting to excite hatred, contempt or disaffection, do not constitute an offence under this section.
As such, as far as the Indian Penal Code is concerned, to be liable to be convicted of having committed sedition, all a person needs to do is bring or attempt to bring into hatred or contempt, or to excite or attempt to excite disaffection towards, the Government of India. It does not matter how this it done — sedition may be comment by spoken or written words, or signs or by any other visible representation. The provisions in the Code of Criminal Procedure may, however, be considered to temper those in the Penal Code as they do not allow the courts to take cognizance of the offence of sedition without governmental approval.
That said, the only rigid requirement for sedition to have been committed is that the seditious content or statement be communicated to someone. As long as it remains unpublished, the person responsible for authoring it cannot be held guilty of sedition. Once published, however, both the author and those involved in distributing seditious content are liable to be punished for sedition.
As was held in the case of Raghuvir Singh v. State of Bihar [AIR 1987 SC 149], ‘Authorship of seditious material alone is not the gist of offence of sedition. Distribution, circulation of seditious material may also be sufficient.’ It does not matter if the publication is an original publication at the first instance or a reprint from an earlier publication. And as far as newspapers are specifically concerned, the editor, printer, or publisher of seditious content is considered to be as responsible as its author, [Bhaskar, (1906) 8 Bom LR 421], and the fact that such seditious content may merely have been reprinted from foreign newspapers is not a defence [Alexander M Sullivan, (1886) 11 Cox 44].
Unfortunately, it is extremely difficult to tell in advance of a judicial determination being reached whether or not a statement would be considered to be seditious. The law in this regard was expressed in simple terms in the case of Gangadhar v. State, [1963 MPLJ 247]: ‘In order to sustain a conviction under section 124A, IPC it must be proved that (a) the accused spoke the words in question, (b) that he thereby brought or attempted to bring into hatred or contempt or excites or attempts to excite disaffection, and (c) that such disaffection was towards the government established by law in India.’
Although there is little more that could be expected in terms of clarity, even a cursory glance at this statement of the legal position reveals that one of the critical factors used to determine liability is the existence of intent to bring the government into hatred or contempt (particularly if the attempt to do so was unsuccessful).
This appears to be prima facie contrary to a 1962 Supreme Court ruling which clearly stated that a failed attempt to excite feelings of disaffection towards the government would not constitute sedition — although, perhaps, the particulars differ. (In Kedar Nath’s case[AIR 1962 SC 955], the Supreme Court unequivocally stated that ‘comments, however strongly worded expressing, disapprobation of the actions of government, without exciting those feelings which would generate the inclination to cause public disorder by act of violence, would not be penal’.)
Nonetheless, what is inescapable is that ‘intention’ which was also recognized in the case of Vishambar Dayal v. Emperor [AIR 1941 Oudh 33], is required for a person to be held guilty of having committed sedition. The ‘intention’ of a person, however, is next to impossible to determine with any degree of surety, and the law is less than clear about the mechanism it uses to determine what a person’s intention is. People are assumed to intend the natural and reasonable consequences of their actions. While this is clear enough, there appears to be a dichotomy in case law: on one hand, persons accused of committing sedition are given the benefit of that doubt, and on the other, the law infers intention from conduct and then requires persons to show that their words were harmless and their motives innocent.
This is not the only inconsistency in Indian sedition law: there is also a dichotomy when it comes to the quantum of matter in a publication which must be seditious for a person to be liable to be punished. For example, a book must be judged as a whole with its introduction and acknowledgement or dedication [Saigal v. Emperor, AIR 1930 All 401], but when it comes to a speech, a conviction may be made on the basis of the short abstracts taken down from the speech [Krishna Chandra Pangoria v. Emperor, AIR 1937 All 466].
Unsurprisingly, these inconsistencies have made the law relating to sedition extremely unclear. Nonetheless, it is important to note that the letter of the law has generally been interpreted liberally so that free speech and legitimate criticism of the State is not stifled. Further, courts have also interpreted the applicability of Section 124A narrowly so that it only includes attacks on the sovereign or on the established government and does not include attacks on the administration of justice, the administrative machinery of the State or Government officers. [Sher Muhammad v. Crown, AIR 1949 Lah 218 read with Explanation 3 of Section 124A, IPC]
As far back as 1927, it was held in the case of Satyaranjan Bakshi v. Emperor, [AIR 1927 Cal 698]:
‘The expression “brings or attempts to bring into hatred or contempt or excites or attempts to excite disaffection” must, as a rule of construction, be very narrowly construed so as to interfere as little as possible with the liberty of the subject and the freedom of speech. If a party publishes any matter in a newspaper and it contains no more than a calm, dispassionate and quiet discussion showing possibly a little feeling in the man's mind, that will not be sedition; but if the article goes beyond and attributes improper and dishonest or corrupt motive and thereby is calculated to excite tumult then it is sedition. While a very large amount of latitude is and must be allowed to writers in the public press, the interests of the state must at the same time be not lost sight of and writers cannot under the guise of criticism of public affairs, be allowed to indulge in attributing base, improper or dishonest motives.’This basic legal position had not changed in close to a hundred years. And as such, although there is much confusion when it comes to technicalities and specifics, in broad strokes, the fundamental position of law is that allegations of sedition are not intended be resorted to in order to silence those who engage in fair and dispassionate criticism of the State.
Reference: Ratanlal and Dhirajlal