The Right to Dissent

Sedition: the law, and what became of it

Section 124A of the Indian Penal Code punished bringing or attempting to bring into hatred or contempt, or exciting or attempting to excite disaffection towards, the Government established by law in India, by words, signs or visible representation. "Disaffection" was explained to include disloyalty and all feelings of enmity.

It was upheld only by being narrowed. In Kedar Nath Singh v. State of Bihar, 1962 AIR 955; 1962 SCR Supl. (2) 769. Facts. Prosecutions under section 124A for speeches said to be seditious, in which the constitutionality of the section was challenged as an infringement of the freedom of speech and expression. Held. SECTION 124A IS CONSTITUTIONALLY VALID, BUT ONLY WHEN READ DOWN. There was a conflict of authority: the Federal Court had held that words are an offence under the section only when they have the intention or tendency to disturb public tranquillity, create public disturbance or promote disorder, while the Privy Council had held that such an intention or likelihood was not an essential ingredient. On the Privy Council view the section would be unconstitutional; on the Federal Court view it would be constitutional. Where one construction saves a provision and another destroys it, the Court leans to the former. The section must therefore be so construed as to LIMIT its application to acts involving an intention or a tendency to create disorder or disturbance of law and order or incitement to violence, and so read the restriction is in the interest of public order and within permissible legislative interference. Why it matters here is that the words that make sedition compatible with article 19(2) are not in the section. They are in the judgment, which is exactly why prosecutions kept being brought for speech the judgment protects.

And in 2022 the Court stopped the machine. In S.G. Vombatkere v. Union of India, Writ Petition (C) No. 682 of 2021, order of 11 May 2022. Facts. A challenge to section 124A. The Union of India filed an affidavit stating that the Government, mindful of civil liberties and human rights while committed to the sovereignty and integrity of the nation, had decided to re-examine and reconsider the provision, and asked the Court not to spend time examining its validity again. Held. The Court directed that ALL PENDING TRIALS, APPEALS AND PROCEEDINGS IN RESPECT OF A CHARGE FRAMED UNDER SECTION 124A BE KEPT IN ABEYANCE, adjudication on other sections being allowed to proceed where no prejudice would be caused, and gave the Union liberty to issue the proposed directive to the States. Why it matters here is what it is NOT. It is an order regulating proceedings while the Government reconsidered; the section was not struck down and Kedar Nath Singh was not overruled.

Then Parliament replaced the Code. The Bharatiya Nyaya Sanhita 2023 came into force on 1 July 2024 and there is no section 124A in it. Section 152 punishes whoever purposely or knowingly, by words spoken or written, or by signs, or by visible representation, or by electronic communication or by use of financial means, 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, with imprisonment for life or imprisonment up to seven years, and fine. The EXPLANATION provides that 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 the section names, do NOT constitute an offence.

The three changes worth stating. The object of protection has moved from the GOVERNMENT to the STATE: section 124A protected "the Government established by law", section 152 protects sovereignty, unity and integrity. The conduct is now named specifically, secession, armed rebellion, subversive activities, separatist feelings, instead of the general "disaffection". And the Kedar Nath Singh protection for criticism, which used to sit in a judgment and in explanations to section 124A, now sits in the section's own explanation. What has not changed is that "subversive activities" is undefined and that the maximum sentence has risen from the alternative of three years under section 124A's lesser limb to seven years or life.

Dissent inside institutions

A dissenting judgment is dissent constitutionalised, and MU's paper asks about the right in a PLURAL society, where the point is sharpest: a permanent minority that loses every vote is not thereby wrong, and an institution that records the losing view keeps the argument alive.

The illustration every student should be able to give is Additional District Magistrate, Jabalpur v. Shivakant Shukla, AIR 1976 SC 1207. Facts. During the emergency proclaimed on 25 June 1975 a Presidential Order under article 359 suspended the right of detenus to move any court to enforce articles 14, 21 and 22; detenus nevertheless applied to High Courts for habeas corpus, and the State took the preliminary objection that the Order barred the High Courts from even entertaining the applications. Held. By four to one the Court upheld the objection: in view of the Presidential Order no person had any locus standi to move a writ petition under article 226 for habeas corpus to challenge the legality of a detention, on any ground including mala fides, and section 16A(9) of the Maintenance of Internal Security Act was valid. KHANNA J. DISSENTED, holding that the State had no power to deprive a person of life or personal liberty without the authority of law even during an emergency. Why it matters here is that the dissent is now regarded as the correct view and the majority as the Court's worst hour, and that the Forty-fourth Amendment gave effect to the dissent by making articles 20 and 21 non-suspendable under article 359.

The pattern repeats. Fazl Ali J. dissented in Romesh Thappar and Brij Bhushan, and the First Amendment enacted his position within a year. Radhakrishnan J. dissented in the 2012 Right to Education case and Pramati reached his result in 2014. Indu Malhotra J. dissented in the Sabarimala judgment and the questions she raised went to a Bench of not less than seven. A dissent is a claim addressed to the future, and in a plural society that is what a losing minority most needs.

A worked example

A person is prosecuted for a speech at a public meeting calling a State Government corrupt, demanding its resignation, and urging listeners to court arrest by blocking a highway. Consider the charge under section 152 and the constitutional position.

First, which words are protected? Calling the Government corrupt and demanding its resignation is criticism of the measures and actions of the Government, protected by the explanation to section 152 and by article 19(1)(a). On Shreya Singhal it is discussion and advocacy, not incitement.

Second, do the words fall within the section's conduct? Section 152 requires exciting secession, armed rebellion or subversive activities, or encouraging separatist feelings, or endangering sovereignty or unity and integrity. Demanding a resignation does none of these. A charge under section 152 on these facts is misconceived.

Third, what of urging listeners to block a highway? That is a different matter. Blocking a highway is not an assembly "peaceably and without arms" in a place where others have rights, and offences relating to obstruction and unlawful assembly may be attracted. But the constitutional test is still the article 19(2) one: is the restriction reasonable and proportionate, and is the speech incitement rather than advocacy?

Fourth, does the abeyance order in Vombatkere help? Not directly. It concerned charges under section 124A of the Indian Penal Code, and section 124A no longer exists. It remains relevant as an indication of how the Court views prosecutions of this class.

Answer: the section 152 charge fails on its own terms and on the explanation. The highway offences, if any, must be judged separately and on the ordinary law, and the speech remains protected.

Distinctions

What it does NOT mean

It does not mean sedition was struck down. Vombatkere is an ORDER holding proceedings in abeyance. Kedar Nath Singh was not overruled, and section 124A ceased to exist because the whole Code was repealed and replaced, not because a court invalidated it.

It does not mean section 152 is sedition renamed. It protects a different object, names different conduct and carries a heavier maximum. A candidate who calls it "the new sedition" without stating the differences has not answered the question.

It does not mean every protest is protected. Article 19(1)(b) protects assembly PEACEABLY AND WITHOUT ARMS, and the qualification is inside the right, not in the restriction clause.

It does not mean dissent is protected only against the State. In a plural society the pressure on a dissenter often comes from the dissenter's own community. Bijoe Emmanuel is a case about a school, and the essential-practices cases are about communities disciplining their own members.

And it does not mean a dissenting judgment has legal force. It has none. Its force is that it survives, and Additional District Magistrate, Jabalpur is the proof: the dissent is the law today and the majority is not.

Quick revision

No separate right; the combination of article 19(1)(a) (say it), 19(1)(b) (assemble peaceably and without arms to say it) and article 21 (not to be detained for it). Shreya Singhal: discussion and advocacy protected, only incitement restrictable. Bijoe Emmanuel 1986: expulsion for not singing the anthem violated articles 19(1)(a) and 25; genuinely and conscientiously held belief; no law obliged anyone to sing. Sedition: section 124A IPC, upheld in Kedar Nath Singh 1962 ONLY as read down to an intention or tendency to create disorder or incite violence, on the principle that a construction which saves is preferred to one which destroys. Vombatkere, order of 11 May 2022: pending trials, appeals and proceedings on a section 124A charge kept in ABEYANCE after the Union said it would reconsider the section; NOT a striking down. Bharatiya Nyaya Sanhita 2023 in force 1 July 2024: section 152, exciting secession, armed rebellion, subversive activities, encouraging separatist feelings, or endangering sovereignty or unity and integrity; life or up to seven years; explanation saves disapprobation of the measures or actions of the Government sought to be altered by lawful means. Institutional dissent: Khanna J. in Additional District Magistrate, Jabalpur 1976, vindicated by the Forty-fourth Amendment; Fazl Ali J. in Romesh Thappar and Brij Bhushan, enacted by the First Amendment.

Test yourself

1. Which provisions together make up the right to dissent? Articles 19(1)(a), 19(1)(b) and 21, read with article 19(2) and 19(3) for the permissible restrictions. There is no article that names dissent.

2. On what basis was section 124A held valid in Kedar Nath Singh? Only as read down. Following the Federal Court rather than the Privy Council, the Court limited the section to acts involving an intention or tendency to create disorder or disturbance of law and order or incitement to violence, on the principle that where one construction saves a provision and another destroys it the saving construction is preferred.

3. What exactly did the Supreme Court order in Vombatkere, and what did it not do? It directed that all pending trials, appeals and proceedings on a charge framed under section 124A be kept in abeyance, and gave the Union liberty to issue a directive to the States. It did not strike down the section and it did not overrule Kedar Nath Singh.

4. State three differences between section 124A and section 152 of the Sanhita. The object protected moved from the Government established by law to the sovereignty, unity and integrity of India; the conduct is now named specifically as secession, armed rebellion, subversive activities or separatist feelings instead of the general "disaffection"; and the maximum on the lesser limb rose from three years to seven.

5. What protects criticism of the Government under section 152? Its explanation: comments expressing disapprobation of the measures, or administrative or other action, of the Government, with a view to obtaining their alteration BY LAWFUL MEANS, without exciting the activities the section names, are not an offence.

6. Give an example of dissent protected where nothing was said at all. Bijoe Emmanuel v. State of Kerala: children who stood respectfully but did not sing the national anthem could not be expelled, there being no law obliging anyone to sing and their belief being genuinely and conscientiously held.

7. Why does a dissenting judgment matter in a plural society? Because a permanent minority loses every vote and is not thereby wrong, and a recorded dissent keeps its claim alive for a later court or legislature. Khanna J.'s dissent in Additional District Magistrate, Jabalpur is now treated as the correct view, and the Forty-fourth Amendment enacted it by making articles 20 and 21 non-suspendable under article 359.