Table of Contents
Introduction to Sedition laws
Sedition refers to act which excites disaffection or rebellion activities against the government established by law. Though the modus operandi for doing the same is not specific, thus any act which contempt the established government or excites insurrection is a fit case for prosecution under sedition law. Although this action must be concerted, mere expression of personal opinion against the established authority will not amount to sedition.
The concept of sedition has a long and complex history, particularly within the Anglo-American common law tradition, with its modern meaning first appearing in the Elizabethan era. During this period, sedition was defined as the “notion of inciting by words or writings disaffection towards the state or constituted authority”. This concept was then carried to the North American continent, where many colonies established their own sedition laws. For instance, in 1735, the colony of New York sought to prosecute John Peter Zenger under a seditious libel law for publishing criticisms of the government. Although in the case of Crown v. John Peter Zenger, John was exonerated of the charge as the jury found that libelious statements were true.1
Sedition laws can limit people’s freedom to speak and express their opinions, often by censoring political discussions. There’s a constant debate about how to balance the government’s need to protect national security with people’s right to disagree with and criticize the government. In India, article 19(2) of The Constitution of India provides for the reasonable restriction on the free speech and idea on the ground of “public order”. The idea of free speech is meant to protect even opinions that are not popular. However, sedition laws have sometimes been used against people who are peacefully criticizing the government, which raises worries about basic rights. When sedition laws are written in a broad or unclear way, this problem can be even worse, potentially stopping people from expressing different viewpoints and limiting open disagreement.
From a criminology standpoint, disagreement and challenge are essential for a working democracy. Open discussion and the ability to freely criticize and debate public issues are vital. When laws like sedition make it illegal to express opposing views, it weakens the very core of democracy.2 A key feature of democratic societies is that people can hold their leaders responsible.3 Therefore, any laws that unfairly limit the expression of critical opinions can damage the well-being and effectiveness of a democratic nation.
Originally the specific provision addressing sedition wasn’t there the penal code of 1860 it was introduced by the amendment in the year 1870. Though it was there in the draft bill of 1837 but its omission was unexplained and its inclusion is attributed to Sir Fitzjames Stephen. Its insertion was expedited due to increasing nationalist revolutionary movements. Earlier the provision was termed as “exciting disaffection” which later on moulded in form of sedition law.
Sedition laws in India
Section 124A of Indian Penal Code of 1860, provides for the definition and punishment of sedition in the following words
124ASedition.–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.
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.
On the analysis of the above provision one can easily spot that there is lack of any mental element in the definition, implies, that offence is a strict liability offence and exception to actus non facit reum nisi mens sit rea. Thus any act done which falls under the category of the acts mentioned in the definition will make the doer liable for punishment which further makes the offence harsher.
Further it is immaterial that any mutiny or rebellious activity has taken place or not the material thing is that the accused must have tried to excite the feelings of hatred and contempt towards the government, this is sufficient to make the offender guilty.4
The use of words “either spoken or written or by signs or otherwise” is the foresightedness of the framers that took into their consideration that there could be other possible ways except writing, speaking and demonstrating to excite the disaffection of the public towards the established government. However it is an essential element that the act should or is likely to disrupt the public order by public resorting to violence. This observation was made by Sinha CJ in the case of Kedar Nath Singh.5 In the case of Raghubir singh6 it was opined by the supreme court that it is not necessary that the accused must be the author of seditious material and the act of distributing and circulating the same will also constitute the offence. moreoever private communications are immune from the application of the provision but if that private communication is further meant to be made public will amount to publication.7
Early interpretations of the law set a broad precedent. In the 1891 case of Queen Empress v Jogendra Chunder Bose8, the term “disaffection” was defined expansively to encompass “dislike or hatred” and was linked to the concept of disobedience towards the government. Justice Arthur Strachey, during Tilak’s trial in 1897, further broadened the scope of sedition to include any attempt to incite “feelings of enmity” against the government. Under the prevailing legal understanding of the time, the truthfulness of statements deemed seditious offered no defense; in fact, it could be considered an aggravating factor, as true statements were seen as potentially more influential in undermining the authority of the state.
However explaination 2 and explaination 3 have a very limited scope to the acts which does not excite or attempt to excite the hatered contempt and disaffection.
The constitutional validity of the section as challenged many a times and some of the High Courts held it unconstitutional. However, the Supreme Court of India intervened in 1962 in the landmark case of Kedar Nath Singh v. State of Bihar.9 Overturning the High Court decisions, the Supreme Court upheld the constitutional validity of Section 124A but with a significant reinterpretation: the law would only apply in cases where there was an “incitement to violence” or an intention to overthrow the government through violent means, thus narrowing its scope. In 1973 Sedition was made a cognizable offence.
In the case of Shreya Singhal v. Union of India10, while primarily focused on Section 66A of the Information Technology Act, the Supreme Court’s decision in this case had implications for understanding the boundaries of free speech in relation to sedition. The Court struck down Section 66A as unconstitutional, emphasizing the importance of freedom of speech in the online sphere and the necessity of distinguishing between “advocacy” and “incitement”. The Court reiterated the principle that sedition law could only be invoked when there was a clear and present danger of violence or public disorder. This case underscored the fundamental nature of freedom of speech and expression, stating that restrictions on this right should only be imposed in extraordinary circumstances.
Some of the similar cases where Supreme Court of India gave protection to those who were engaged in activism and upheld their right of free speech and expression are Binayak Sen v. State of Chhattisgarh (2011)11.
Sedition laws in the United Kingdom, the United States, and Australia
United Kingdom: Historically, the UK had sedition laws, like the Sedition Act of 1661, aimed at protecting the government and monarch. Sedition was a common law offense that broadly prohibited actions, speech, or publications intended to violently overthrow democratic institutions or incite disaffection against the Crown, government, or justice system. The Law Reform Commission recommended abolishing these laws in 1977 due to their potential to suppress legitimate criticism. Ultimately, the UK abolished the common law offenses of sedition and seditious libel in 2009 with the Coroners and Justice Act. The last sedition prosecution in the UK was in 1972. The UK repealed these laws because they were seen as outdated and a hindrance to freedom of expression, also hoping to influence other countries to do the same.
United States of America: Unlike the UK, the US addresses sedition within the framework of the First Amendment, which guarantees free speech. The US had the Sedition Act of 1798, which criminalized false and malicious writings against the government, but it was controversial and eventually expired. The Supreme Court case Brandenburg v. Ohio (1969) established a strict standard, stating that speech is seditious only if it is intended and likely to incite immediate illegal action. While laws against seditious conspiracy exist (18 U.S.C. § 2384), they are narrowly interpreted to involve actual plots to violently overthrow the government. The First Amendment’s strong protection of free speech significantly limits the criminalization of speech as seditious.
Australia: Australia has laws against urging violence, overthrowing the constitution, and interfering with elections through force, mainly in the Federal Crimes Act (1914) and the Criminal Code Act (1995). These laws, like India’s and the UK’s, have British common law origins. Amendments in 2005, as part of anti-terrorism measures, updated the definitions and increased penalties. Australian law specifically targets intentionally urging violence against the Constitution, government, or democratic processes. It also includes “good faith” defenses for those genuinely trying to point out government errors or advocating for lawful changes. Australia’s approach is more specific than India’s previous law, focusing on direct incitement of violence, and the “good faith” defenses offer some protection for legitimate criticism.
Changes in the Indian Law
However certain changes that are brought by Bhartiya Nyay Samhita 2023, that replaced the sedition by a new offence that is
S. 152 Acts endangering sovereignty unity and integrity of India.
Whoever, purposely or knowingly, by words, either spoken or written, or by signs, or by visible representation, or by electronic communication or by use of financial mean, or otherwise, excites or attempts to excite, secession or armed rebellion or subversive activities, or encourages feelings of separatist activities or endangers sovereignty or unity and integrity of India; or indulges in or commits any such act shall be punished with imprisonment for life or with imprisonment which may extend to seven years and shall also be liable to fine.
Explanation: Comments expressing disapprobation of the measures, or administrative or other action of the Government with a view to obtain their alteration by lawful means without exciting or attempting to excite the activities referred to in this section.
Here some of the basic differences are inclusion of mental elements in the definition of the crime by inclusion of words “purposely or knowingly” that makes presence of mens rea sine qua non for liability under the said offence. Moreover certain acts that are supposed to be penalized are enumerated as “secession or armed rebellion or subversive activities, or encourages feelings of separatist activities” makes the definition more specific and relevant, as an instance certain trends reveal that sometimes separatist activities turn violent and disrupts the public order.
However no explanation of the term “subversive activities”, “endangers sovereignty or unity and integrity of India” and no specific mention of an essential element that is disruption of public order that is accountable to the violence motivated by the acts mentioned in the definition, again leaves a grey area. There is still vagueness evident from the interpretation that renders the new offence vulnerable to politically motivated prosecutions.
Conclusion
John Stuart Mill in his essay On Liberty, Mill argued vehemently for the “harm principle,” suggesting that the only legitimate basis for restricting individual liberty is to prevent harm to others. He championed the marketplace of ideas, believing that even false or unpopular opinions should be allowed to be expressed freely so that truth can emerge through debate. The law of sedition is not adequate for India as it can be said as the shadow of the colonization of a country. One should not be deprived of his liberties on account of dissent, however the state must maintain the public order the same time. It is not the government but “We the people of India” who are sovereign and thus the law should be worded in such a manner that it must protect the public not those who are in power and even being unable to fulfill their obligations are susceptible to dissent.
- https://history.nycourts.gov/case/crown-v-zenger/ as accessed on 09/04/2025 ↩︎
- https://www.ijlra.com/paper-details.php?isuur=3579 ↩︎
- https://thediplomat.com/2020/02/sedition-laws-and-their-post-colonial-legacy-in-india-and-pakistan ↩︎
- Emperor v. Bal Gangadhar Tilak, (1908) 10 BOMLR 848 ↩︎
- Kedarnath v. State of Bihar, AIR 1962 SC 955 ↩︎
- Raghubir Singh, AIR 1987 SC 149 ↩︎
- Suresh Chandra sanyal, (1912) 39 Cal 606 ↩︎
- Queen Empress v. Jogendra Chunder Bose, (1891) 19 Cal 35 ↩︎
- Kedarnath v. State of Bihar, AIR 1962 SC 955 ↩︎
- AIR 2015 SC 1523 ↩︎
- https://indiankanoon.org/doc/94313095/ as accessed on 09/04/2025 ↩︎
