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Freedom of Speech V. The Law of Sedition

“Raise your words sensibly, not your voice. It is rain that grow flowers, not thunder”




People nowadays are very conscious about their fundamental rights. Also, they are aware that no one can infringe their rights, if anyone does so, people know how to protect their right.

Most popular of all the fundamental rights is of the freedom of speech and expression. The power or right to express one’s opinions without censorship, restraint or legal penalty is known as Freedom of Speech. In India, freedom of speech is guaranteed under Article 19(1) (a) of the Constitution of India.

Article 19(1)(a) of the Constitution of India says that “All citizens shall have the right to freedom of speech and expression”. But this right is subject to limitations imposed under Article 19(2) which empowers the State to put ‘reasonable’ restriction on various grounds, namely, security of the State, friendly relations with foreign States, public order, decency and morality, or in relation to contempt of court, defamation, incitement of an offence.

The right to express or speak what an individual feel is therefore guaranteed by the Constitution of India. But there are some cases where the people misuse their right to expression and freedom of speech. There have been instances during election campaigns or during public meetings where people knowingly or unknowingly cross their limits and ends up creating hatred towards government in the public. After all the government is the sovereign institution of our country that is governing our whole country. Wrongdoings of the government can be criticised by the public in their personal capacity by not voting for them in next elections but not by the opinions of any other person or an organisation.

In a democracy, freedom of speech & expression opens up channels of free discussion of issues. Freedom of speech plays a crucial role in the formation of public opinion on social, economic and political matters. It embraces within its scope the freedom of propagation and exchange of ideas, circulation of information which would help formation of one’s opinion and view point and debates on matters of public concern. So long as the expression is confined to nationalism, patriotism and love for the motherland, the use of national flag by the way of expression of those sentiments would be a Fundamental Right.

Explaining the scope of freedom of speech and expression Supreme Court has said that the words “freedom of speech and expression” must be broadly constructed to include the freedom to circulate one’s views by words of mouth or in writing or through audio visual instrumentalities. Freedom of Speech and expression means the right to express one’s own convictions and opinions freely by words of mouth, writing, printing, pictures or any other mode. It thus includes the expression of one’s idea through any communicable medium or visible representation. Moreover, it is important to note that liberty of one must not offend the liberty of others.

To limit the freedom of speech, Section 124A of Indian Penal Code,1860 is designed that punishes the person who, by words, either spoken or written, by signs or by visible representation attempts to bring hatred or excites disaffection toward the Government established by law in India. In short, this section is known as Sedition. And he 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.

In Kedar Nath v. State of Bihar [AIR 1962 SC 955] the Supreme Court held, ‘Government established by law’ is the visible symbol of the State. The very existence of the State will be in jeopardy if the Government established by law is subverted. Hence, the continued existence of the Government established by law is an essential condition of the stability of the State.

In its very first year, a Constitution Bench of the Supreme Court had occasion to examine this provision in the case of Romesh Thappar vs The State Of Madras, the Supreme Court significantly noted that the deletion of the word ‘sedition’ from draft Article 13(2) exhibited that criticism of Government exciting disaffection or bad feelings towards it is not to be regarded as a justifying ground for restricting the freedom of expression and of the press, unless it is such as to undermine the security of State, or tends to overthrow the State.

Later, a 1962 case, Kedar Nath Singh v. State of Bihar, became the landmark judgment on the vires (powers) of sedition law. In this case, despite there being bolder judgments of three High Courts, striking down the provision, the Supreme Court upheld the constitutional vires of Section 124A. Guided by Article 19(2), the Constitution Bench set the benchmark, i.e., an act could be of seditious nature only if it has an intention or tendency to “create disorder or disturbance of public peace by resort to violence”.

In the recent case of Kanhaiya Kumar v. State of NCT of Delhi, Kanhaiya Kumar along with other students of Jawaharlal Nehru University organized an event on the Parliament attack convict Afzal Guru and Kashmiri separatist Maqbool Bhat, who was hanged in 2013. The event was a protest through poetry, art, and music against the judicial killing of Afzal Guru. Allegations were made that the students in the protest were heard shouting anti-Indian slogans. A case therefore filed against several students on charges of offence under Sections [124-A, 120-B, and 34].

The University’s Students Union president Kanhaiya Kumar was arrested after allegations of ‘anti-national’ sloganeering was made against him and two other students along with Umar Khalid were arrested. Kanhaiya Kumar was released on bail by the Delhi High Court as the police investigation was still at nascent stage, and Kumar’s exact role in the protest was not clear.

 Although it was later observed that Kanhaiya Kumar did criticised government but did not said anything that hampered the reputation of the government or was anti national. Kanhaiya in his one of his interviews said that his sloganeering was not against the government but the slogans unintentionally created hatred and excited the public against the ruling government. This issue made people think that their rights aren’t safe and are being tampered especially their right to freedom of speech and expression.

In Maneka Gandhi v. Union of India, Justice P.N. Bhagwati has emphasized on the significance of the freedom of speech & expression in these words:

“Democracy is based essentially on free debate and open discussion, for that is the only corrective of government action in a democratic set up. If democracy means government of the people, by the people, for the people, it is obvious that every citizen must be entitled to participate in the democratic process and in order to enable him to intelligently exercise his rights of making a choice, free & general discussion of public matters is absolutely essential.”



The freedom of speech and the law of sedition are contrary to each other but the need of both stands at the same level. Everyone should have right to express their opinions but not to the extent where they infringe the right of other person or create hatred towards the ruling government. Limitations on the rights must be sustained otherwise its result will be adverse in nature as when somebody gets the power, it is more misused than used efficiently.