Sedition, Hate Speech and Offensive Speech

In one line

The same speech is a crime in India, a crime of a narrower kind in Britain, and constitutionally protected in the United States, and the reason is that the three systems disagree about where danger begins.

In the wording a student can write in an exam: sedition in its Indian form punished exciting disaffection towards the Government established by law; hate speech punishes expression promoting enmity between groups; and offensive speech is expression that wounds without endangering, which India and the United Kingdom may restrain and the United States may not.

Sedition as it was: section 124A

The repealed section read: whoever by words, either spoken or written, or by signs, or by visible representation, or otherwise, brings or attempts to bring into hatred or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 said that disaffection includes disloyalty and all feelings of enmity. Explanations 2 and 3 excluded comments expressing disapprobation of the measures, or of the administrative or other action, of the Government with a view to obtaining their alteration by lawful means, without exciting or attempting to excite hatred, contempt or disaffection.

The narrowing. Kedar Nath Singh v. State of Bihar, AIR 1962 SC 955, upheld the section but read it down: it applies only where the words have the pernicious tendency or intention of creating public disorder or disturbance of law and order, and strong words used to express disapprobation of government measures with a view to improvement by lawful means are not within it. Without that reading the section would have been outside article 19(2).

What happened to it

2022. In S.G. Vombatkere v. Union of India, order of 11 May 2022, the Union told the Court it had decided to re-examine and reconsider the provision. The Court recorded that the Union agreed with its prima facie opinion that the rigours of section 124A are not in tune with the current social milieu and were intended for a time when the country was under a colonial regime. It then directed that all pending trials, appeals and proceedings on a charge under section 124A be kept in abeyance, and expressed the hope and expectation that governments would refrain from registering first information reports, continuing investigations or taking coercive measures under it. That was an interim order and not a decision on validity.

2024. The Indian Penal Code was repealed and replaced by the Bharatiya Nyaya Sanhita 2023. There is no offence of sedition in it. Section 152 creates a different offence: 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, is punishable with imprisonment for life or up to seven years and fine. The Explanation preserves the protection for comments expressing disapprobation of measures or administrative action with a view to obtaining their alteration by lawful means.