Discuss the constitutional validity of Section 124-A, IPC.

Question: Discuss the constitutional validity of Section 124-A, IPC.

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Answer

Section 124A of IPC deals with the provision for Sedition. This section was carved out as Section 113 of Macaulay’s draft Indian Penal Code of 1837.

Thereafter, it was suggested to be included in the Penal Code, however, there was no mention of this section when the Indian Penal Code, 1860 was enforced due to unaccountable reasons. The need for insertion of a provision regarding Sedition was felt in 1870 by virtue of the Indian Penal Code (Amendment) Act 1870.

Section 124A as described by Sinha CJ is based on the principle that

“every State, whatever its form of Govt, has to be armed with the power to punish those who by their conduct, jeopardize the safety and stability of the state, or disseminate such feelings of disloyalty as have the tendency to lead to the disruption of the State or to public order”

The means which could be used to commit the seditious act are words, either written or spoken, signs or visual representation, or otherwise. The term ‘visual representation’ is indeterminate and can encompass any form of communication which is visible to the eyes.

Any action whose meaning is conveyed through gestures, motions, and dramatic actions of the performers are also covered under the purview of Sedition. The act of distributing seditious material also amounts to sedition.

According to Section 124A, such words either uttered or written, visual representation must bring or attempt to bring contempt or hatred towards the sitting Govt. Further, a person carrying out a seditious act is penalized under this section irrespective of the fact whether he succeeds or fails. To constitute the offense of sedition it is sufficient that he attempts to intersperse hatred and excites disaffection against the State.

In the case of Brij Bhushan v. State of Delhi, 1950 SCR 605, Fazl Ali, J. observed that sedition undermines the security of the State usually through the medium of public disorder, with which it is always connected, and that it is essentially an offence against the public tranquillity in as much as though not accompanied by violence it tends to cause it. Decisions in the case of Brij Bushan v. State of Delhi & Romesh Thappar v. State of Madras gave rise to the First Constitution Amendment, where Article 19 (2) was rewritten to replace “undermining the security of the State” with “in the interest of public order.”

The constitutional validity of Section 124A has been a controversy since the Constitution has come into force. In the case of Tara Singh v. State [AIR 1951 East Punjab 27] the contention that Section 124A is ultra vires the Constitution as it violates Article 19 (1) (a) which guarantees freedom of speech and expression. The court, in this case, observed that Section 124A does not have any place in modern India’s polity pattern.

Nevertheless, the Constitution Amendment Act, 1951, inserted the terms ‘in the interest of’ and ‘public order’ to Article 19 (2) espousing the requirement of reasonable restrictions to the right of freedom of speech and expression.

Finally, this judicial unrest regarding Section 124A was put to rest by the Apex court in the landmark judgment of Kedar Nath v. State of Bihar [1962 AIR 955]. The court observed that:

“The security of the state, which depends upon the maintenance of law and order is the very basic consideration upon which legislation, with a view to punishing an offense against a state, is undertaken. Such legislation has, on one hand, fully protect and guarantee the freedom of speech and expression, which is the sine qua non of a democratic form of government established by the constitution.

But the freedom has to be guarded against becoming a license for vilification and condemnation of the govt established by law, in words which incite violence or have a tendency to create public disorder.”

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