English inhabitants in India requested the then Indian rulers to grant them the privilege of being governed by the English law. Indian rulers acceded to this request which led to the wholesale import of English law in India.

The law of sedition in India is an offshoot of English law. In the earliest English law, any infringement of the bond of fealty was punishable. This element is well marked in ‘seditio exercitus vel regmi’ – a betraying of the army or of the realm. Incitement to disorder and exciting ill-will between different classes of the King’s subjects was a serious crime against the state. This English criminal law crystallised in the famous Treason Act, 1351 III and Treason Act, 1795. The picture of the system of law prevailing in India at the advent of the 19th century was one of confusion and chaos. In the words of Sir Henry Maine India was then “a country empty of law.” The enactment of the Charter Act, 1833 and the creation of an allIndia Legislative Council form a most significant watershed in the legal history of India. Macaulay rightly observed-“our principle is simply this – uniformity where you can have it; diversity where you must have it, but in all cases certainty.”

A Law Commission, under the aegis of Lord Macaulay, was appointed to enact a uniform criminal law for India. Section 113 of the Draft Penal Code, proposed by the Law Commission, made excitation of feelings of disaffection against the government established by law in the territories occupied by the East India Company as criminal.” The origin of Section 124A and the history of its introduction in Indian Penal Code, 1860 is both interesting and important. In 1837, it existed, in gremio, as one of the clauses of Macaulay’s draft Penal Code, but remained shelved for more than twenty years. When this Bill saw the light in 1860, strangely enough, the sedition clause, for some unaccountable reason, had been omitted.

The government of India badly felt the need for enactment of this clause when ‘Wahabi’ conspiracy case was going on. It is to be noted that Sir Barnes Peacock has appended a substitute section for Section 113 but it was rejected by the Select Committee of the House for being much more severe. Finally, on the lines of draft Section 113, Section 124A was enacted by the Special Act XXVII of 1870.

The first state trial for sedition on record is the case of Queen Empress vs. Jogendra Chunder Bose, better known as ‘Bangobasi Case,’ that being the name of the newspaper in which the alleged seditious matter appeared. In 1897 three notable trials took place – Queen Empress vs. Bal Gangadhar Tilak (ILR 22 Bom. 112), QueenEmpress vs. Ramchandra Narayan (ILR 1898 22 Bom. 45) and Queen Empress vs. Amba Prasad (ILR 1898 20 All. 55). Let us ascertain to what extent Section 124-A had been affected by the judicial utterances of the learned judges who took part in these trials. In the first place, it seems pretty clear that the term ‘disaffection’ had proved a ‘vexata quaestio’, for many definitions of this word had been offered which were not all exactly alike. Besides, the ‘explanation’ to the section had undoubtedly proved a veritable crux.

The raison d’etre of the contemplated amendment was stated by Mr. Chalmers, the member in charge of the bill. “As for the section”, he said, “which deals with the offence of exciting disaffection against the government……… I cannot say that it strikes me as model of clear drafting. The result of the cases was to establish that it is a criminal offence to stir up feelings of contempt or hatred for the government and that such conduct is nonetheless an offence because resort to actual violence is not advocated.” Thus, adapting these guidelines as to the language, Section 124-A was repealed and the present section was substituted therefor. The amendment affirmed in unmistakable terms the consentient opinions of the various High Courts which had been called to interpret the Section 124—A then extant. The introduction of the expression “bring into hatred or contempt” is traceable to Sir Comer Petheram’s charge in the Bangobasi trial, which he himself imported from the English law.

Thus, it is noticeable that Section 124-A has undergone subtle changes. It was adapted from time to time as a result of the constitutional changes by the Government of India Act, 1935, by the Independence Act, 1947 and by the Indian Constitution of 1950 (Adaptation of Laws Orders 1937, 1948, and 1950). Section 124-A has remained almost the same, with little changes, as it was in 1898.

The word ‘Sedition’ does not appear in Section 124-A, though it is only mentioned as a marginal note to Section 124-A. It simply gives the name by which the crime defined in the section is to be known. This species of offence against the state was not an invention of the Britishers in India but has been known to ancient civilizations for centuries as is discernible from the foregoing discussion. Every state has to be armed with the power to punish those who disseminate such feelings of disloyalty as have the tendency to lead to the disruption of the state or to public disorder.

By: Shrawan Sawhney (IAS Retd.)

The Views expressed by the author are personal.