Sedition and the Supreme Court's Kedar Nath Singh judgment: Tendency versus proximity

The Supreme Court recently called for Section 124A of the Indian Penal Code, 1860 (IPC), which criminalises the offence of Sedition, to be kept in abeyance pending the exercise to be undertaken by the Central government to assess whether the provision needs to remain on the statute books.

The Court also issued directions to protect persons who have been charged or will be charged in the future for the offence of Sedition under the law.

During the course of the hearings before the apex court, Solicitor General for India Tushar Mehta submitted before the Bench of the Chief Justice of India NV Ramana and Justices Surya Kant and Hima Kohli that the five-judge Constitution Bench judgment in Kedar Nath Singh v. Union of India has stood the test of time, and that only a bench of co-equal strength could overrule the verdict, which upheld the constitutionality of Section 124A in 1962.

So what did the apex court hold in Kedar Nath Singh six decades ago, and what bearing will it have on the future of the provision? This article attempts to decode this and a lot more.

The Kedar Nath Singh judgment

In 1962, a five-judge Bench of the Supreme Court of India was tasked with deciding on the constitutionality of the provision, which, over the years, has been used as a tool to curb dissent against the powers that be. The Bench of then Chief Justice of BP Sinha and Justices SK Das, AK Sarkar, RN Ayyangar and JR Mudholkar attempted to balance the offence of Sedition against the right to free speech and expression.

The Bench was to decide multiple appeals and petitions filed before it. One of these was an appeal filed by Kedar Nath Singh against a judgment of the Patna High Court which upheld his conviction under Section 124A of the IPC. Singh was charged for making the following speech:

"Today the dogs of the CID are loitering round Barauni. Many official dogs are sitting even in this meeting...Today these Congress goondas are sitting on the gaddi due to mistake of the people. When we drove out the Britishers, we shall strike and turn out these Congress goondas as well. These official dogs will also be liquidated along with these Congress goondas. These Congress goondas are banking upon the American dollars and imposing various kinds of taxes on the people today. The blood of our brothers - mazdoors and Kisans - is being sucked."

In appeal before the apex court, Singh had also challenged the validity of Section 505 of the IPC (statement conducting to public mischief), under which he was also charged.

The apex court, after analysing the history of the law and previous judgments on Sedition, held that the provision was constitutionally valid in light of restrictions contained under Article 19(2) of the Constitution as it is "in the interest of public order".

It was observed that the words used in Section 124A distinguishes "government established by law" from the persons who are engaged in running the government.

"“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," the Supreme Court held.

Therefore, the Court held that any spoken or written words which have "implicit in them the idea of subverting government by violent means" will fall under the definition of Sedition. However, the Court clarified that any strong statements expressing disapprobation of the measures of government or any action taken by the government will not fall within the ambit of Sedition.

"In other words, disloyalty to Government established by law is not the same thing as commenting in strong terms upon the measures or acts of Government, or its agencies, so as to ameliorate the condition of the people or to secure the cancellation or alteration of those acts or measures by lawful means, that is to say, without exciting those feelings of enmity and disloyalty which imply excitement to public disorder or the use of violence," the judgment stated.

The Court applied the "tendency test" to hold that if any spoken or written words have the intention or tendency to create disorder or disturb peace by resorting to violence, only then the offence of Sedition can be attracted. It held,

"It is only when the words, written or spoken, etc. which have the pernicious tendency or intention of creating public disorder or disturbance of law and order that the law steps in to prevent such activities in the interest of public order. So construed, the section, in our opinion, strikes the correct balance between individual fundamental rights and the interest of public order."

The Ram Manohar Lohia Judgment

Before the Kedar Nath Singh judgment, in 1960, the Supreme Court delivered another judgment in Superintendent of Police v. Ram Manohar Lohia wherein a five-judge Constitution Bench was tasked with adjudicating on the constitutionality of Section 3 of the Uttar Pradesh Special Powers Act, 1932. This provision stated,

"Whoever, by word, either spoken or written, or by signs or by visible representations, or otherwise, instigates, expressly or by implication, any person or class of persons not to pay or to defer payment of any liability, and whoever does any act, with intent or knowing it to be likely that any words, signs or visible representations containing such instigation shall thereby be communicated directly or indirectly to any person or class of persons, in any manner whatsoever, shall be punishable with imprisonment which may extend to six months, or with fine, extending to Rs. 250, or with both."

In the said judgment, the Court applied the "proximity test" and held,

"The limitation imposed in the interests of public order to be a reasonable restriction, should be one which has a proximate connection or nexus with public order, but not one far-fetched, hypothetical or problematical or too remote in the chain of its relation with the public order."

The top court explicitly refrained from applying the tendency test. It held that if the a restriction on a fundamental right has no proximate relationship to the achievement of public order, it cannot be said to be a reasonable restriction. In other words, the Court held that the relationship between the alleged act and public disorder must be "proximate," or there must be a close connection.

Tendency v. proximity

But what is proximity? Constitutional law expert and lawyer Gautam Bhatia explains that if a person incites a mob to burn down a place, then the speech is proximately connected to the act of public disorder.

But if a person delivers a speech to maintain peace and demands for an oppression-free society, and subsequently, riots take place in the city, there is no proximity between the alleged speech and riots, as there is a "wide gap" between the demand for an oppression-free society and violence. There must be a proximity between the speech and public disorder.

On the other hand, the tendency test is far too remote. The invocation of Sedition charges for a number of speeches and even Facebook posts over the years can be attributed to the application of this test.

In the words of GD Khosla, author of Pornography and Censorship in India,

"Anything may have a tendency for almost anything. A lamp post may be taken as a phallic symbol, a convenient object for canine relief, a source of light, evidence of civilization, something to lean against when waiting for a bus or something to demolish in order to demonstrate a sense of rebellion or discontent. So what is the tendency of a lamppost?"

The Constitution Bench in Kedar Nath Singh only made a passing reference to Lohia, with the judges opining,

"...the decision in Lohia's case [1960] 2 S. C. R. 821 does not affect this case, as in that case it was found that that provisions curtailing freedom of speech were not in the interest of public order as the connection between the provisions and disturbance of public order as too remote."

Surprisingly, the Court in Kedar Nath Singh neither discussed the proximity test nor gave an explanation for shifting its stance from applying the proximity test to the tendency test. It is also interesting to note that the Constitution Benches in both the cases were headed by then Chief Justice BP Sinha.

The road ahead

The tendency test is too wide and does not balance the right of the citizens and the restrictions imposed on their fundamental rights proportionately. While it is true that these rights are not absolute, the fact remains that restrictions are only exceptions to the general rule, and cannot dilute the essence of the right.

The proximity test is similar to the Brandenburg Test, which was developed by the United States Supreme Court in Brandenburg v. Ohio, in which it was held that the incitement by speech, written or spoken, must be such which leads to "imminent lawless action". The Supreme Court of India has adopted the proximity test in various judgments like S Rangarajan v. P Jagjivan Ram, Arup Bhuyan v. State of Assam, and Shreya Singhal v. Union of India.

If the Central government does not decide to strike down the law on Sedition or make adequate modifications to the provision and its implementation, all eyes will be on what course of action the Supreme Court will take. If the Court seeks to revisit the judgment of Kedar Nath Singh, it will have to refer the matter to a seven-judge Constitution Bench to decide on the constitutionality of the Section 124A.

The Court has previously hinted at its "tendency" to frown upon the provision, questioning the need for it after 75 years of independence, and highlighting its misuse and the lack of accountability on the part of the executive while invoking it.

And while the Central government has agreed to re-examine Section 124A, vowing that it is in favour of protection of civil liberties and human rights, there are some who believe that the Court should have passed a detailed, reasoned order in the matter as opposed to having expectations from the government.

And while one hopes that a decision on the issue is "proximate", this might not be the last time we see the provision coming up before the Court.

The author is a legal correspondent at Bar and Bench. He can be reached at chaitanya@barandbench.com. The views expressed are personal.