Sedition, Section 124A, Indian Penal Code 1860 –

An Abhorrent Colonial Relic

(By B.Premnath, Advocate, High Court of Kerala, Ernakulam)

“Democracy is a charming form of Government, full of variety and disorder, and dispensing a sort of equality to equals and unequal alike”, said Plato. Civil liberties drive a democratic nation forward. Dissent, discord among the citizenry all count for its progress. The freedom which dawned on India after more than 150 years of British Colonial rule was the result of selfless struggles of freedom fighters. On November 26, 1949, we, the people of India, gave unto ourselves the Constitution of India. The fundamental rights guaranteed in our Constitution imbibes the spirits of U.S. Bill of Rights 1791, French Revolution 1789 and the English Revolution 1688 which proclaimed the valuable rights of liberty, equality and freedom of religion.

The founding fathers of the Constitution of India, themselves freedom fighters, knew the value of freedom, crafted “freedom of speech and expression” into the fundamental rights in Article 19(1)(a), only to be abridged by the laws which the State can enact within the subject matters in Article 19(2), namely; “In the interest of the Sovereignty and Integrity of India, the Security of the State, friendly relations with Foreign States, public order, decency or morality, or in relation to Contempt of Court, defamation or incitement to an offence”.

The importance of freedom of speech and expression was emphasized by the Supreme Court in S.Khushboo v. Kanniammal & Anr. (2010 (2) KLT SN 39 (C.No.46) SC = (2010) 5 SCC 600)thus: “Even though the constitutional freedom of speech and expression is not absolute and can be subjected to reasonable restrictions on grounds such as “decency and morality” among others, we must lay stress on the need to tolerate unpopular views in the socio cultural space. The Framers of our Constitution recognize the importance of safeguarding this right since the free flow of opinions and ideas is essential to sustain the collective life of the citizenry. While an informed citizenry is a pre condition for meaningful governance in the political sense, we must also promote a culture of open dialogue when it comes to societal attitudes”.

In Terminiello v. Chicago (337 US 1 (1949))the U.S. Supreme Court observed that “free speech may best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, even stirs people to anger”.

The first amendment of the U.S. Constitution that “Congress shall make no law respectingan establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances”, was drafted by James Madison as part of the Bill of Rights which was ratified in 1791. In 1833, the Supreme Court of the United States ruled that the Bill of Rights applied only to the Federal Government, not to the States. As a result, when States infringed free speech, individuals could not challenge it as per the first amendment. It all changed in 1868 by the advent of the 14th amendment which prohibited states from denying people “liberty” without due process. In 1925, in Gitlow v. New York, the Supreme Court of the United States interpreted the “due process” clause and broadened the applicability of the Bill of Rights protection of speech to the States.

In 1919, the stirring dissent of Justice Oliver Wendell Holmes in Abrams v.. United States (250 U.S. 616 (1919)) canonized free speech in the United States of America when he held: “But when men have realized that time has upset many fighting faiths, they may come to believe even more than they believe the very foundations of their own conduct that the ultimate good desired its best reached by free trade in ideas - that the best test of truth is the power of thought to get itself accepted in the competition of the market and that truth is the only ground upon which their wishes safely can be carried out. That, at any rate is the theory of our Constitution. It is an experiment, as all life is an experiment. Every year if not every day we have to wager our salvation upon some prophecy based upon imperfect knowledge. While that experiment is part of our system I think that we should be eternally vigilant against attempts to check the expression of opinions that we loathe and believe to be fraught with death, unless they so imminetly threaten immediate interference with lawful and pressing purposes of the law that an immediate check is required to save the country”.

In Whitney v. California (71 L.Ed. 1095) Justice Louis De Brandeis held: “Those who won our independence believed that the final end of the State was to make men free to develop their faculties, and that in its Government the deliberative forces should prevail over the arbitrary. They valued liberty both as an end and as a means. They believed liberty to be the secret of happiness and courage to be the secret of liberty. They believed that freedom to think as you will and to speak as you think are means indispensable to the discovery and spread of political truth; that without free speech and assembly discussion would be futile; that with them, discussion affords ordinarily adequate protection against the dissemination of noxious doctrine; that the greatest menace to freedom is an inert people; that public discussion is a political duty; and that this should be the fundamental principle of the American Government. They recognized the risks to which all human institutions are subject. But they knew that order cannot be secured merely through fear of punishment for its infraction; that it is hazardous to discourage thought, hope and imagination; that fear breeds repression; that repression breeds hate; that hate menaces stable Government; that the path of safety lies in the opportunity to discuss freely supposed grievances and proposed remedies; and that the fitting remedy for evil counsels is good ones. Believing the power of reason as applied through Public discussion, they eschewed silence coerced by law - the argument of force in its worst form. Recognizing the occasional tyrannies of governing majorities, they amended the Constitution so that free speech and assembly should be guaranteed”. It was further held: “to justify suppression of free speech there must be reasonable ground to fear that serious evil will result if free speech is practised” and further: “but even advocacy of violation, however reprehensible morally, is not a justification for denying free speech where the advocacy falls short of incitement and there is nothing to indicate that the advocacy would be immediately acted on. The wide difference between advocacy and incitement, between preparation and attempt, between assembling and conspiracy, must be borne in mind. In order to support a finding of clear and present danger it must be shown either that immediate serious violence was to be expected or was advocated, or that the past conduct furnished reason to believe that such advocacy was then contemplated”.

Omission of “Sedition” from the draft Article 13(2)

The draft Article 13(2), corresponding to Article 19(2) before amendments, read as follows: “Nothing in Sub-Clause (a) of Clause (1) of this Article shall effect the operation of any existing law or prevent the State from making any law relating to libel, slander, defamation, sedition or any other matter which offends against decency or morality or which undermines the security of or tends to overthrow the State”. There was a general feeling that the offence of “Sedition”, as incorporated in Section 124A of the Indian Penal Code, 1860 then, (herein after referred to as “the Code”, for brevity) was enacted to secure the conviction of Sri.Bal Gangadhar Tilak. Mahatma Gandhi was put behind the bars invoking Section 124A. Founding fathers of the Constitution of India, reminded of the indiscriminate use of Section 124A, by the British against themselves and others to suppress the struggle for independence, dropped the word “sedition” from the draft Article 13(2). In the words of Sri.K.M.Munshi at the Constituent Assembly debates, 1st December 1948: “A hundred and fifty years ago in England, holding a meeting or conducting a procession was considered sedition. Even holding an opinion against, which will bring ill will towards Government, was considered sedition once. Our notorious Section 124A of Penal Code was sometimes construed so widely that I remember in a case a criticism of a District Magistrate was urged to be covered by S.124A. But the public opinion has changed considerably since and now we have a democratic Government a line must be drawn between criticism of Government which should be welcome and incitement which would undermine the security or order on which civilized life is based, or which is calculated to overthrow the State. Therefore the word ‘sedition’ has been omitted”.

Article 13(2) was transformed into Article 19(2) as originally enacted as follows: “Nothing in Sub-Clause (a) of Clause (1) of this Article shall effect the operation of any existing law or prevents the State from making any law relating to libel, slander, defamation, Contempt of Court or any matter which offends against decency or morality or which undermines the security of or tends to overthrow the State”.

Orders to prevent danger to “public order” held as unconstitutional

In Romesh Thappar v. State of Madras (AIR 1950 SC 24)and Brij Bhushan v. State of Delhi (AIR 1950 SC 129), Section 9(1-A) of the Madras Maintenance of Public Order Act 1949 and Section 7 (i)(c) of the East Punjab Safety Act, 1949 were under challenge, respectively. In Romesh Thappar, the Government of Madras issued an order under Section 9(1-A) imposing a ban upon the entry and circulation of a journal in that State for the purpose of securing the public safety and maintenance of public order. In Brij Bhushan, under Section 7(i)(c) an order was issued to a journal “to submit for scrutiny, in duplicate, before publication, till further orders, all communal matter and news and views about Pakistan including photographs and cartoons other than those derived from official sources or supplied by news agencies”. This order was issued under the premise that it is prejudicial to the public safety and maintenance of public order. The majority view of the Constitution Bench in both the cases was that Clause 2 of Article 19 having allowed the imposition of restriction on the freedom of speech only in cases where danger to public security is involved, an enactment which is capable of being applied to cases where no such danger could arise, cannot be held to be constitutional and valid to any extent. Essentially, as the orders challenged were issued to prevent danger to public order and as the word “public order” fell outside the scope of authorized restrictions under Clause 2 of Article 19(2), the Supreme Court held those orders as void and unconstitutional.

Immediately after Romesh Thappar and Brij Bushan, Article 19(2) was amended retrospectively by the Constitution First Amendment Act, 1951 in the following manner: “Nothing in Sub-Clause (a) of Clause (1) shall effect the operation of any existing law or prevent the State from making any law in so far as such law imposes reasonable restrictions on the exercise of the right conferred by the said sub-clause in the interest of the security of the State, friendly relations with foreign States, public order, decency or morality, or in relation to Contempt of Court, defamation or incitement to an offence”.

Article 19(2) now

At present Article 19(2) stands as follows: “Nothing in Sub-Clause (a) of Clause (1) shall effect the operation of any existing law or prevent the State from making any law in so far as such law imposes reasonable restrictions on the exercise of the right conferred by the said sub-clause in the interest of the Sovereignty and Integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality, or in relation to Contempt of Court, defamation or incitement to an offence”.

History of Section 124A

The law of Sedition evolved from the Statute of Westminster 1275, when the divine right of the King and the principles of a feudal society were not questioned. The Star Chamber case De Libellis Famosis of 1606 established seditious libel. Not only was truth no defence, but intention was irrelevant, as was the harm done by the libel. Punishments for the crime included imprisonment and the loss of the offenders’ ears.

Section 124A of the Indian Penal Code corresponds to Section 113 of Macaulay’s Draft Penal Code of 1837 - 39. The section was omitted from the Code when it was enacted in 1860. It was by Act XXVII of 1870 that it found a place in the Penal Code. The section then enacted, ran as follows:

“124A. Exciting Disaffection -

Whoever by words, either spoken or intended to be read, or by signs, or by visible representation, or otherwise, excites, or attempts to excite, feelings of disaffection to the Government established by law in British India, shall be punished with transportation for life or for any term, to which fine may be added, or with imprisonment for a term which may extend to three years, to which fine may be added, or with fine.

Explanation- Such a disapprobation of the measures of the Government as is compatible with a disposition to render obedience to the lawful authority of the Government, and to support the lawful authority of the Government against unlawful attempts to subvert or resist that authority is not disaffection. Therefore, the making of comments on the methods of the Government with the intention of exciting only this species of disapprobation, is not an offence within this clause”.

The case of Sri.Bal Gangadhar Thilak (Queen Empress v. Bal Gangadhar Thilak) (ILR 22 Bom. 112) in which he was convicted, is a classic example of the use of Section 124A which the British used to jail Indian leaders in the freedom struggle and suppress the freedom movement. The case was tried by a Jury before Strachey.J. The learned Judge explained the law to the Jury which in short is as follows: “The offence consists in exciting or attempting to excite in others certain bad feelings towards the Government. It is not the exciting or attempting to excite mutiny or rebellion, or any sort of actual disturbance, great or small”. The Jury found Sri. Bal Gangadhar Thilak guilty, who applied for leave to appeal to the Privy Council. The Full Bench of the Privy Council refused leave to appeal. By way of application for special leave, appeal was taken to the judicial committee. It was contended that there was a misdirection as to the meaning of Section 124A of the Code in that the offence had been defined in terms too wide to the effect that “disaffection” meant simply “absence of affection”, and that it comprehended every possible form of bad feeling to the Government. The argument was rejected and the conviction was confirmed.

The decision in Bal Gangadhar Thilak’s case drew inspiration from Queen-Empress v. Jogendra Chunder Bose (ILR 19 Cal. 35), the first case under Section 124A, known as the Bangobasi Case. Sir Comer Petheram C.J. explained the law thus: “If a person uses either spoken or written words calculated to create in the minds of the persons to whom they are addressed a disposition not to obey the lawful authority of the Government, or to subvert or resist that authority, if and when occasion should arise, and if he does so if the intention of creating such a disposition in his hearers or readers, he will be guilty of the offence of attempting to excite disaffection within the meaning of the section, though no disturbance is brought about by his words or any feeling of disaffection in fact, produced by them”.

Section 124A underwent an amendment many a time thereafter, lastly on 01.01.1956 by the Act of 26 of 1955, Section 117. The offence of “Sedition” now reads as follows:

“124A. Sedition -- 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, shall be punished with, 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 of 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”.

It may be immediately noticed that Section 124A of the Code had the heading “Exciting disaffection” when it was originally enacted, and the intention of the Rulers was clear as broad day light, to suppress any voice against the Government, even in its narrowest form.

Supreme Court holds Section 124A as constitutional

In a case, one Kedar Nath Singh was charged with Section 124A and 505(b) of the Indian Penal Code. It gave rise to Kedar Nath Singh v. State of Bihar, (AIR 1962 SC 955) where the constitutionality of the provisions was challenged. Supreme Court observed: “Any law which is enacted in the interest of public order may be saved from the vice of constitutional invalidity. If, on the other hand, we were to hold that even without any tendency to disorder or intention to create disturbance of law and order, by the use of words written or spoken which merely create disaffection or feelings of enemity against the Government, the offence of sedition is complete, then such an interpretation of the sections would make them unconstitutional in view of Article 19(1)(a) read with Cl.(2)”. Supreme Court then adopted the interpretation which would make the provisions constitutional and read down the provision, narrowed its wide net by limiting its application “to acts involving intention or tendency to create disorder, or disturbance of law and order, or incitement to violence”

“Disorder”, “Public order”, "Security of the State”

The question is, within the restrictive sphere of Article 19(2), whether all sorts of disorders or disturbance of law and order, give rise to a situation of “public order,” and whether in case even some of them give rise to violence or incitement to violence, threaten the security of the State? Is it not necessary that to charge one with “sedition”, his acts should threaten the security of the State? It may be noted here that Entry No.3 of List III(Concurrent List) of Schedule VII of the Constitution treats “Security of the State” and “maintenance of public order” differently and in Entry I of List II(State List) of Schedule VII, “Public Order” is separately listed. Though the offence of 'sedition' appears in Chapter VI of the Code under the heading "offences against the State", of all the provisions, enumerated there, S.124A sounds odd.

In Superintendent, Central Prison, Fateh Garh v. Ram Manohar Lohia, (AIR 1966 SC 663), the Supreme Court held: “public order” is synonymous with public safety and tranquility and that “it is the absence of disorder involving breaches of local significance in contra distinction to national upheavals ; such as revolution, civil strive, war, affecting the security of the State”.

In Ram Manohar v. State of Bihar, (AIR 1966 SC 740)Supreme Court elaborated “public order”: “One has to imagine three concentric circles. Law and order represents the largest circle. Within which in the next circle representing public order and the smallest circle represents security of the State. It is then easy to see that an act may affect law and order but not public order just as an act may affect public order but not security of the State”.

Chief Justice M.Hidayatullah, speaking for the Bench in Arun Ghosh v. State of West Bengal (AIR 1970 SC 1228) succinctly explained the situations in which it could be said there is disturbance to public order or when there is no law and order : “Take the case of assault on girls. A guest at a hotel may kiss or make advances to half a dozen chambermaids. He may annoy them and also the management but he does not cause disturbance of public order. He may even have a fracas with the friends of one of the girls but even then it would be a case of breach of law and order only. Take another case of a man who molests women in lonely places. As a result of his activities girls going to colleges and schools are in constant danger and fear. Women going for their ordinary business are afraid of being way-laid and assaulted. The activity of this man in its essential quality is not different from the act of the other man but in its potentiality and in its effect upon the public tranquility there is a vast difference. The act of the man who molests the girls in lonely places causes a disturbance in the even tempo of living which is the first requirement of public order. He disturbs the society and the community. His act makes all the women apprehensive of their honour and he can be said to be causing disturbance of public order and not merely committing individual actions which may be taken note of by the criminal prosecution agencies. It means therefore that the question whether a man has only committed a breach of law and order or has acted in a manner likely to cause a disturbance of the public order is a question of degree and the extent of the reach of the act upon the society”.

Balwant Singh & Anr.v. State of Punjab ((1955) 3 SCC 214)was a case where the case against the appellants was that in a crowded place, on 31.10.1984, the day Smt.Indira Gandhi, the then Prime Minister of India was assassinated, after coming out from their office shouted the slogan “Khalistan Zindabad” and other slogans and keeping in view of the tension which had been generated, the said act attracted Sections 124A and 153A of the Code. Supreme Court set aside the conviction and sentence and observed: “The police officials exhibited lack of maturity and more of sensitivity in arresting the appellants for raising the slogans – which arrest – and not the casual raising of one or two slogans – could have created a law and order situation, keeping in view of the tense situation prevailing on the date of the assassination of Smt.Indira Gandhi. In situations like that, over sensitiveness sometimes is counter productive and can result in inviting trouble. Raising of some lonesome slogans, a couple of times by two individuals, without anything more, did not constitute any threat to the Government of India as by law established (emphasis supplied) nor could the same give rise to feelings of enemity or hatred among different communities or religious or other groups”.

Therefore, mere acts involving intention or tendency to create disorder, or disturbance of law and order, or incitement to violence will not attract the offence of “Sedition” unless those acts threaten the security of the State and there is a “clear and present danger”.

“Clear and present danger” rule was propounded by Justice Oliver Wendell Holmes in Schenck v. United States: (63 L.Ed.470) “the most stringent protection of free speech would not protect a man in falsely shouting fire in a Theater and causing panic. It does not even protect a man from an injunction against uttering words that may have all the effect of force. The question in every case is whether the words used are use in such circumstances and are of such a nature as to create a clear and present danger that they will bring out the substantive evils that Congress has a right to prevent. It is a question of proximity and degree”

Determination of constutionality of an enactment

It is settled law that in interpreting an enactment the Court should have regard not merely to the literal meaning of the words used, but also take into consideration the antecedent history of the legislation, its purpose and the mischief it seeks to suppress. “the test of reasonableness, where ever prescribed, should be applied to each individual statute impugned and no abstract standard or general pattern of reasonableness can be laid down as applicable to all cases. The nature of the right alleged to have been infringed, the underlying purpose of the restrictions imposed, the extent and urgency of the evil sought to be remedied thereby, the disproportion of the imposition, the prevailing conditions at the time, should all enter in to the judicial verdict”, vide State of Madras v. V.G.Row, (AIR 1952 SC 196). The said decision also points out that “while the Court naturally attaches great weight to the legislative judgment, it cannot desert its own duty to determine finally the constitutionality of an impugned statute”.

A Constitution Bench in State of Bihar v. Bihar Distillery Limited, (AIR 1997 SC 1511)pointed out: “The approach of the Court, while examining the challenge to the constitutionality of an enactment, is to start with the presumption of constitutionality. The Court should try to sustain its validity to the extent possible. It should strike down the enactment only when it is not possible to sustain it. The Court should not approach the enactment with a view to pick holes or to search for defects of drafting, much less inexactitude of language employed. Indeed, any such defects of drafting should be ironed out as part of the attempt to sustain the validity/constitutionality of the enactment. After all, an Act made by the legislature represents the will of the people and that cannot be lightly interfered with. The unconstitutionality must be plainly and clearly established before an enactment is declared as void”.

Question of constutionality of a law infringing the fundamental rights

As per Article 13(1), any inconsistent pre constitutional law will be void to the extent of inconsistency with Article 19(2). Any law enacted beyond Article 19(2) will fall foul of the Constitution and will be void under Article 13(2). The allowance the Court grants to the legislature when judging a constitutionality of a statute is not available when the question of infringement of the fundamental rights is in the dock. In R.K.Garg v. Union of India, ((1981) 4 SCC 675), the Supreme Court has laid down that “when a law of the legislature encroaches on the civil rights and civil liberties of the people mentioned in Part III of the Constitution (the fundamental rights), such as freedom of speech, freedom of movement, equality before law, liberty, freedom of religion, etc., the Court will not grant such latitude to the legislature as the case of economic measures, but will carefully scrutinize whether the legislation on these subjects is violative of the rights and liberties of the citizens, and its approach must be to uphold those rights and liberties, for which it may some times even have to declare a statute to be unconstitutional”.

It is submitted that judging by the standards set by the decisions of the Supreme Court, and mindful of the antecedents of Section 124A of the Code, the situation and the purpose behind it, Section 124A militates against Article 19(1)(a) and is therefore unconstitutional.

The wide net of Section 124A and its vagueness

It can be seen that Section 124A of the Code as it originally stood, meant to create a simple disaffection towards the Government established by law in British India an offence. Even the heading of the section was “Exciting disaffection.” Thus any body who simply shrugs his shoulder to the Government could be roped in. It was indiscriminately used by the British to suppress the freedom struggle. Later amendments brought only cosmetic changes. The terms used in Section 124A are vague. What is meant by “disaffection” is not clear. It lays a very wide web. One may not like the policies of the Government, he may speak out against it, make people grumble with anger and immediately he is caught under Section 124A. Another person may entertain hard feelings against the Government, show dissent to its various departments and limbs and then he is charged with “Sedition”. The term disaffection, used in the provision can include anything. Explanation 1 makes the net of Section 124A even more wider. It says that the expression “disaffection” includes “disloyalty and all feelings of enmity”, which means the citizens cannot open their mouth in diffidence. Thus this provision has certainly dictatorial overtones. It does not operate only when the security of the State is under threat, as restrained under Article 19(2). Section 124A as it now stands, has a chilling effect on free speech.

Vagueness and Constitutionality of a law

But can a law be termed as unconstitutional on the ground of vagueness? Supreme Court in K.A.Abbas v. The Union of India (AIR 1971 SC 481), held that “it cannot be said as an absolute principle that no law will be considered bad for sheer vagueness” and also that “The real rule is that if a law is vague or appears to be so, the Court must try to construe it, as far as may be, and language permitting, on it, must be in accordance with the intention of the legislature. Thus if the law is open to diverse construction, that construction which accords best with the intention of the legislature and advances the purpose of legislation, is to be preferred. Where however the law admits of no such construction and the persons applying it are in a boundless sea of uncertainty and the law prima facie takes away a guaranteed freedom, the law must be held to offend the Constitution as was done in the case of the Goonda Act. This is not application of the doctrine of due process. The invalidity arises from the probability of the misuse of the law to the detriment of the individual. If possible, the Court instead of striking down the law may itself draw the line of demarcation where possible but this effort should be sparingly made and only in the clearest of cases”.

The decision of the Supreme Court in The Collector of Customs Madras v. Nathella Sampathu Chetty & Anr. (1962 (3) SCR 786), succinctly laid down: “the possibility of abuse of a statute otherwise valid does not impart to it any element of invalidity the converse must also follow that a statute which is otherwise invalid as being unreasonable cannot be saved by its being administered in a reasonable manner. The constitutional validity of the statute would have to be determined on the basis of its provisions and on the ambit of its operation as reasonably construed. If so judged it passes the test of reasonableness, possibility of the powers conferred being improperly used is no ground for pronouncing the law itself invalid and similarly if the law properly interpreted and tested in the light of the requirements set out in Part III of the Constitution does not pass the test it cannot be pronounced valid merely because it is administered in a manner which might not conflict with the constitutional requirements”.

In Shreya Singhal v.Union of India (2015 (2) KLT 1 (SC) = (2015) 5 SCC 1), the Supreme Court struck down Section 66A of the Information Technology Act, 2000 as unconstitutional as it is against Article 19(1)(a) and not saved by Article 19(2) on the ground that it creates an offence which is vague and over broad.

In Musser v. Utah, (92 L.Ed. 562), the U.S. Supreme Court struck down a statute where no reasonable standards are laid down define guilt in a Section which creates an offence, and where no clear guidance is given to either law abiding citizens or to authorities and Courts, on the ground of vagueness. In United States v. Reese, (92 US 214 (1874)), it was held that “the Constitution does not permit a legislature to set a net large enough to catch all possible offenders and leave it to the Court to step in and say who could be rightly detained and who should be set at liberty”. It was further held that a penal law is void for vagueness if it fails to define the criminal offence with sufficient definiteness. Ordinary people should be able to understand what conduct is prohibited and what is permitted. Also, those who administer the law must know what offence has been committed so that arbitrary and discriminatory enforcement of the law does not take place.

In Grayned v. City of Rockford, (33 L.Ed. 2d 222), it was held that “a vague law permissibly delegates basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis with the attendant dangers of arbitrary and discriminatory applications”.

Conclusion

Section 124A of the Code is a penal provision, restraining the freedom of the subject. A penal provision has to be explicit. Bathing in the guaranteed freedom of speech and expression and assured of it as his fundamental right, a citizen needs to know as to exactly on what ground he is charged with or where has he gone beyond

Article 19(1)(a), to be in the teeth of Article 19(2). A citizen cannot be asked to wait for the interpretative process by the law enforcing machinery. There is a probability of misuse. Section 124A as it stands now, is an abhorrent colonial relic. It militates against the spirit of the Constitution of India. The British, who have liberally used the provision against the Indians, have done away with the Sedition laws in England. More than thirty years ago, Lord Denning expressed the opinion that the offence of seditious libel is obsolete:

“The offence of seditious libel is now obsolescent. It used to be defined as words intended to stir up violence, that is, disorder, by promoting feelings, of ill-will or hostility between different classes of His Majesty’s subjects. But this definition was found to be too wide. It would restrict too much the full and free discussion of public affairs...So it has fallen into disuse for nearly 150 years” (Landmarks in Law, Lord Denning).

Sedition under Section 124A is an arcane offence of a bygone era where freedom of expression was not the same as today. Now as the Law Commission is reviewing the Law of sedition, one can fervently hope that Section 124A will be overhauled so as to cover only those acts which threaten the security of the State. Otherwise it attracts the wrath of Article 13(1) and is void.

Hindu Marriage Act, 1955, Christian Marriage Act 1872,

Indian Divorce Act, 1869 -- A Very Recent Decision Regarding Dissolution of Marriage between a Christian Wife and a Hindu Husband

(By N.Subramaniam, Advocate, High Court of Kerala, Ernakulam)

Wife - Jerry Garman @ Geraldine @ Jayalakshmy filed a petition under Indian Divorce Act 1869 for dissolution of marriage solemnized between herself and husband Sethuraman in Family Court under Christian Marriage Act, 1872. Marriage was on 17.8.1992. Sethuraman, the husband filed an interlocutory application to dismiss the petition filed by wife for dissolution of marriage on the ground that marriage was solemnized under Hindu rites and customs and hence petition under Indian Divorce Act, 1869 is not maintainable legally.

Family Court allowed the interim petition filed by the husband and dismissed the petition filed by wife for dissolution of marriage. Wife filed appeal.

Question posed was whether Family Court is justified in allowing the interlocutory application and dismiss the O.P. filed by wife.

MADRAS HIGH COURT - Held

1. From the evidence it was found that the wife was a Christian at the time of marriage.

2. So the marriage could not have been taken place under Hindu Marriage Act, 1955.

3. There is no case for any party that wife was converted into Hinduism from Christianity.

4.Marriage has taken place under Christian Marriage Act 1892, and so cannot be dissolved under Hindu Marriage Act, 1955.

5. For a marriage to be conducted under Hindu Marriage Act, both parties should be Hindus.

On the above reasoning the order passed by Family Court is set aside by Madras High Court. 2016 (2) MLJ 169 (D.B.) - Jerry Garman @ Geraldine @ Jayalakshmy v.
A.S. Sethuraman. The Madras High Court has considered AIR 1992 Karnataka (Jacintha Kamath v. V.K.Padmanabha Kamat) (AIR 1984 SC 411) - S.Anbalagan v. B.Devaraja)

The mode and method of conversion to Hinduism has also been considered on the basis of AIR 1971 SC 2352 (Perumal Nadar v. Ponnu Swami) AIR 1984 SC 411 has been followed in AIR 1984 SC 600.

Tailpiece:-

Substantial question of law under Section 100.

If a wrong finding, which has stemmed out on complete misreading of evidence or based on surmises and conjunctives, has been arrived by court, then that is a substantial question of law.

AIR 2016 SC 262 = (2016) 1 CCC 92 SC (Damodar Lal v. Sohan Devi) (para 13).

This Happened in 1940

(Extracted from 1995 (1) KLT Journal Section page 33)

Article by T.G.John, Advocate, Thrissur)

It is a well-known fact that spies are worse than the attacking enemy. Some spy for money and others for love of a cause. For Anna Wolkoff and Tyler Kent there were no mercenary motives to drive them into the network of espionage.

Tyler Kent was in the prime of his youth when he entered the U.S. Diplomatic Service in 1934. In 1939 he was transferred to the London Embassy where he met a Russian woman named Anna Wolkoff, about thirty six years old, who was a naturalised British subject and working in the Auxiliary Fire Service. Anna was a good  Nazi disciple and believed implicitly that national socialism was for the good of mankind.

Anna was not the proverbial beauty of a female spy. But still she fascinated Tyler Kent and dominated him throughout. The Hitler spies knew of Anna, her eagerness to help the Nazis and her relationship with Kent and exploited the situation. Anna printed into Kent’s mind the idea that Britain was steering America into a bloody war and that he could stop this war by following her directions.

“What do you want me to do?” he asked Anna while they were, alone in her apartment in a whirlwind of romance. “I am only a code and clipher clerk and what part can I play in preventing America from entering the war?” Kent repeated.

Anna’s answer was a peroration. Kent was handling all the top-secret messages passing between the President of U.S. and the British Cabinet. If the American people knew of the disastrous policy being followed by President Roosvelt and of the friendship between Roosvelt and Britain’s First Lord of the Admiralty, Winston Churchill, the public’s eyes would be opened. Roosevelt would be voted out and a man who was not a war-monger would be installed in his place.

The modus operandi which Anna suggested was very simple. Kent was to pass over to Anna copies of every message that passed through his hands for coding and transmission. Like a hypnotised man with the Stardust of romance, Kent obeyed her faithfully. All these messages were passed by Anna to Berlin.

Meanwhile, Department M.I5 was watching Anna for subversive activities. The British counter-intelligence was searching for some leaks in their top-secret messages. The leak, Scotland Yard decided was from the American Embassy and it was confirmed when a woman counter-intelligence Officer who had had Anna Wolkoff under observation for thirty hours reported that she saw Tyler Kent enter her apartment. Tyler Kent and Anna Wolkoff, were arrested on a charge of espionage.

The trial was sensational. It was October 1940 and London was being bombarded from the air on trial days themselves. Feelings towards spies were not kindly. The trial opened in a secret session in London and the prosecution set out to prove that Kent was guilty of copying top-secret documents and communicating them to Anna Wolkoff and that these documents were useful to the enemy. The trump card of the prosecution was that Anna Wolkoff had sent several letters to William Joyce known during the last war as Lord Haw-Haw. In some letters Anna Wolkoff had used information received from Tyler Kent and this information, Joyce relayed back to Britain in his broadcasts. The court took fifteen minutes to bring in a verdict of guilt. Anna was convicted in the record time of twenty seconds. She was sentenced to ten years hard labour.

“Your primary allegiance you owe to your own Government” the Judge told Kent, “but while you are living in Britain you have to conform to the laws of this country. You will go to prison for seven years”.

Three Roses of Judicial Ethics

(By A.M. Ashraf, Munsiff, Alathur)

The concept of Justice has a dominant value in the matter of judicial thinking. Judges are the important element of it. Judges are owed to the Law. It makes confidence in judicial independence, fairness and impartiality. A Judge represents societal realities. Public confidence mainly depends upon the quality and propriety of Judge. Judges can’t be accountable to the electorate as politicians. The duties of judiciary are not owed to the electorate, they are owed to the Law of the nation. The concept of judicial independence and judicial accountability are mostly inter linked, which point a finger about cherished canons of judicial ethics. The Constitution of India provides for an independent and impartial judicial systems. It is no doubt true that, in this realm the three attempts namely Restatement of Values of Judicial Life (Code of Conduct), the Bangalore Principles of Judicial Conduct, 2002 and the Oath of a Judge as contained in the Third Schedule of Constitution of India have swiftly achieved its object for the time being. Ideo, it will be apposite to look into its wings and dreams.

(I) Restatement of values of judicial life

 On 3.12.1999 and 4.12.1999 a conference of Chief Justices of all High Courts was held in the Supreme Court premises. During the said conference Chief Justices unanimously adopted a charter called “restatement of values” of judicial life (Code of Conduct) as the principles to be followed by the Judges, for the independent strong and respected judiciary, indispensable in the impartial administration of justice delivery system. It was a complete Code of Conduct and incorporates, therein all the canons of judicial ethics. It can be encapsulated as here under:

i. Justice must not merely be done but also be seen to be done. The behaviour and conduct of members of higher judiciary must reaffirm the people’s faith in the impartiality of the judiciary. Accordingly, any act of a Judge of the Supreme Court or High Court, whether in official or personal capacity, which erodes the credibility of this perception has to be avoided.

ii. A Judge should not contest the election to any office of a club, society or other association, further shall not hold such elective office in a society or association connected with the law.

iii. Close association with individual members of the Bar, particularly those who practice in the same Court, shall be eschewed.

iv. A Judge should not permit any member of his immediate family, such as spouse, son, daughter, son-in-law or daughter-in-law or any other close relative, if a member of the Bar, to appear before him or even be associated in any manner with a cause to be dealt with by him.

v. No member of his family, who is a member of the Bar, shall be permitted to use the residence in which the Judge actually resides or other facilities for professional work.

vi. A Judge should practice a degree of aloofness consistent with the dignity of his office.

vii. A Judge shall not hear and decide a matter in which a member of his family, close relation or a friend is concerned.

viii. A Judge shall not enter into public debate or express his views in public on political matters or on matters that are pending or are likely to arise for judicial determination.

ix. A Judge is expected to let his judgments speak for themselves, he shall not give interview to the media.

x. A Judge shall not accept gift or hospitality except from his family, close relations, friends.

xi.  A Judge shall not hear and decide a matter in which a company in which he holds shares is concerned unless he has disclosed his interest and no objection to his hearing and deciding the matter is raised.

xii. A Judge shall not speculate in shares, stocks or like.

xiii. A Judge should not engage directly or indirectly in trade or business, whether by himself or in association with any other person (publication of a legal treatise or any activity in the nature of a hobby shall not be construed as trade or business.)

xiv. A Judge should not ask for, accept contribution or otherwise actively associate himself with the raising of any fund for any purpose.

xv.  A Judge should not seek financial benefit in the form of a perquisite or privilege attached to his office unless it is clearly available. Any doubt in this behalf must be got resolved and clarified through the Chief Justice.

xvi. Every Judge must at all time be conscious that he is under the public gaze and there should be no act or omission by which is unbecoming of the high office he occupies and the public esteem in which that office is held.

(II) Bangalore Draft Principles:

The independent impartially, integrity, propriety, equality are the hall mark of our judicial system. Based on these values in the year 2002, it has been drafted another Code of Conduct called “the Bangalore Draft Principles”. This principles are expected to establish standards for ethical conduct of Judges and to afford the judiciary a frame work for regulating judicial conduct. The Bangalore Draft had underwent a few discussions and finally approved by a round table meeting of Justices from several law systems, held in Peace Palace in the Hauge, Netherlands in November 2002. The mechanism and methodology of ‘accountability’ may differ from country to country; therefore it was left to be taken care of individually by the participating jurisdictions. With the second meeting held in Bangalore in February 2001 the draft was given a shape developed by Judges by drawn principally from Common Law countries. The preamble of Bangalore Principles of Judicial Conduct can be summed as under:

i. Judicial independence is a pre-requisite to the rule of law and fundamental guarantee of a fair trial. A Judge shall therefore uphold and exemplify judicial independence in both its individual and institutional aspects.

ii. Impartiality is essential to the proper discharge of the judicial office. It applies not only to the decision itself but also to the process by which the decision is made.

iii. Integrity is essential to the proper discharge of the judicial office.

iv.  Propriety and the appearance of propriety, are essential to the performance of all the activities of a Judge.

v. Ensuring equality of treatment to all before the Courts is essential to the due performance of the judicial office.

vi. Competence and diligence are prerequisites to the due performance of judicial office.

vii. Implementation – By reason of the nature of judicial office, effective measures shall be adopted by national judiciaries to provide mechanisms to implement those principles, if such mechanisms are not already in existence in their jurisdiction.

 (III). The Oath of affirmation by Judge:

The Constitution of India has drafted this realm upholding the Indian judiciary to reach the goal of securing Justice, Liberty, Equality and Fraternity. This means and includes in the form of oath to be made by the Judges. Though the path is tough, the Judges have to adopt it and bear out the oath or “Pramana Vachana” (swearing) they have taken when entering the office.

Swearing in the name of God or making a solemn affirmation a Judge ordains himself:-

i. That I will bear true faith and allegiance to the Constitution of India as by law established;

ii. That I will uphold the sovereignty and integrity of India;

iii. That I will truly and faithfully and to the best of my ability, knowledge and judgment perform the duties of office without fear or favour, affection or ill will; and

iv. That I will uphold the Constitution and the laws.

The oath of a Judge is a complete code of conduct and incorporates therein all the canons of judicial ethics. These canons can’t be consigned in formula in achieving the goals. Mostly these canons have originated in and have been handed down by generation after generation of Judges by tradition. A Judge may commit error, the noble things is that the Judge must recognize his mistakes. The famous dictum of Justice Jackson is that “we are not final because we are infallible, we are infallible only because we are final” Justice Robert Jackson in Brown.v.Allen (1953). In concise, if we admit our mistakes as Judges, we strengthen the public confidence in the judiciary.

Subhash Saitv. Sree Gokulam Chits:
‘A  Practical  Solution  or Petition Allergy’

(By Rohit Nandakumar, X Semester, Batch of 2011-16,

The National University of Advanced Legal Studies (NUALS)

The question that was considered by the High Court of Kerala in the decision Subhash Sait v.Sree Gokulam Chits (2015 (4) KLT 497) was whether a convict sentenced to fine, if fails to deposit the same within the time granted by the High Court or Sessions Court, can subsequently deposit the fine without any further direction from the High Court or Sessions Court, as the case may be, to avoid the default sentence.

Facts of the case has been summarized as follows: the applicant in the instant petition was an accused who was convicted by the trial court in case under S.138 of the Negotiable Instruments Act, 1881. The conviction was upheld by a single Judge of the Kerala High Court in revision and modified the sentence into one of fine of `1,88,000/- with a default clause for simple imprisonment for three months. It was also directed that if the fine amount is realized, the entire amount shall be given to the complainant u/S.375(1) of Cr.P.C. The petitioner/convict was also permitted by the High Court to either deposit the amount before the court below or to pay the compensation directly to the complainant within six months of the order. The petitioner/convict was directed to produce a memo before the trial court in case of direct payment. The time limit fixed for payment was later extended by the court once. But, the convict could not remit the amount within the extended time also. Subsequently, he paid the amount in instalments to the complainant and intimated the matter to the trial court. However, the trial court was not prepared to accept the said payment as the said payment was effected beyond the time prescribed by the High Court and initiated coercive steps against the petitioner/convict to recover the amount. In such a circumstance the petitioner/convict approached the High Court by Criminal Miscellaneous Application for remedies, praying for extension of time. The question that had to resolved by the court was whether a payment made by the applicant directly to the complainant, as directed by the High Court, after the period stipulated by the High Court be accepted by the trial court, as sufficient compliance of the direction of the High Court, without any further order from the High Court granting enlargement of time?

In reaching a solution for the problem before it, the court considered two important provisions from the Indian Penal Code- Ss 68 and 69. The sections read as follows:

68. Imprisonment to terminate on payment of fine.—The imprisonment which is imposed in default of payment of a fine shall terminate whenever that fine is either paid or levied by process of law.

69. Termination of imprisonment on payment of proportional part of fine.—If, before the expiration of the term of imprisonment fixed in default of payment, such a proportion of the fine be paid or levied that the term of imprisonment suffered in default of payment is not less than proportional to the part of the fine still unpaid, the imprisonment shall terminate.

Illustration

 A is sentenced to a fine of one hundred rupees and to four months’ imprisonment in default of payment. Here, if seventy-five rupees of the fine be paid or levied before the expiration of one month of the imprisonment, A will be discharged as soon as the first month has expired. If seventy-five rupees be paid or levied at the time of the expiration of the first month, or at any later time while A continues in imprisonment, A will be immediately discharged. If fifty rupees of the fine be paid or levied before the expiration of two months of the imprisonment, A will be discharged as soon as the two months are completed. If fifty rupees be paid or levied at the time of the expiration of those two months, or at any later time while A continues in imprisonment, A will be immediately discharged.

Sections 68 and 69 of the Penal Code may be seen as conferring a right to a convict imprisoned for default in payment of fine to escape imprisonment by paying the fine or such a proportion of the fine be paid or levied that the term of imprisonment suffered in default of payment is not less than proportional to the part of the fine still unpaid.

A reading of Section 68 and 69 would point out that an imprisonment imposed is to terminate on the payment of fine. Section 68 lays down that an imprisonment imposed is to terminate on payment of fine. An imprisonment imposed need not necessarily mean that the convict is actually undergoing the imprisonment. It would also envisage a situation where a person is merely sentenced to undergo an imprisonment rather than actually undergoing the imprisonment

With Sections 68 and 69 of the Penal Code in place, one would have to consider the effect of an imprisonment being meted out to the convict in the case at hand (ie., Subhash Sait v. Sree Gokulam Chits). Payment of the fine has already been made to the complainant and the coercive step that was initiated is imprisonment to which the convicted person may be subjected to is one in default of payment of fine. As the fine has already been paid and keeping in view Section 68 of I.P.C., a reluctance to recognise the payment of fine, even though a belated one may only be seen as an exercise in futility. Once the imprisonment commences the convict would again have a right to pay off the fine and escape imprisonment. Imprisonment in default of payment is a coercive step to ensure payment of fine. Where the payment has already been done, whether belated or not, a move to initiate any coercive step cannot be seen as one ensuring justice. 

In the facts of the instant case, from what can be inferred from the statements in the judgment, it may be safe to infer that no complaint had been made by the original complainant as against the belated payment by the convict/petitioner.

The payment was carried out by the convict and intimated the matter to the trial court. But, it was the trial court which was not prepared to accept the said payment as being effected beyond the time prescribed by the High Court. The provisions for sentence of imprisonment for non-payment of fine is incorporated and imposed for the purpose of inducing an offender to pay the fine. Such an inducement would no longer be required, where the payment of fine has already been carried out by the offender. Any coercive step by way of imprisonment shall terminate whenever the fine is paid or levied by a process of law or a proportional payment or levying of fine causes proportional reduction of the term of imprisonment by virtue of Ss.68 and 69 of the I.P.C. It is also important to note that the provisions for termination of imprisonment on payment of fine as laid down under Ss.68 and 69 of the I.P.C. is one of mandatory nature. In such a circumstance the adamancy in not recognising a belated payment and in initiating coercive steps would be an abuse of the process of law and serve no benefit.

Another aspect to be considered is that such an insistence in not recognising a belated payment and in initiating coercive steps would only deny timely justice to both the complainant and the convicted. Failure to recognise or permit an accused to deposit a fine amount after the date stipulated by the High Court/Sessions Court on the mere reason that no direction for extension of time has been granted by the High Court/Sessions Court can never be justified and would only result in increasing number of petitions being filed before the Honourable Courts. It is therefore important to draw one's attention to the observation made by the Law Commission of India in its 245th report, “denial of ‘timely justice’ amounts to denial of ‘justice’ itself. Timely disposal of cases is essential for maintaining the rule of law and providing access to justice which is a guaranteed fundamental right. However, the judicial system is unable to deliver timely justice because of huge backlog of cases for which the current judge strength is completely inadequate. Further, in addition to the already backlogged cases, the system is not being able to keep pace with the new cases being instituted, and is not being able to dispose of a comparable number of cases. The already severe problem of backlogs is, therefore, getting exacerbated by the day, leading to a dilution of the Constitutional guarantee of access to timely justice and erosion of the rule of law.”

In such situation the decision taken by the Honourable Court in the instant case of Subhash Sait v. Sree Gokulam Chits deserves appreciation. The court has emphatically laid down that default sentence is not punitive, but is only a measure to enforce payment of fine/compensation ordered by the court. It also laid down that it is illegal, incorrect and unjust to refuse to permit the convict to deposit the fine amount after the date stipulated by the High Court/ Sessions Court on the mere reason that no direction for extension of time has been granted by the High Court/Sessions Court.

The judgment does not place any absolute restriction on any court in initiating any coercive steps against the defaulting person. It lays down the where fine has been tendered by the accused it should be accepted even after the time prescribed by any court in this regard. The courts are free to resort to coercive methods where fine is not tendered, but only until the payment of the defaulting fine. What has been prohibited is only the refusal on the mere reason that no extension of time has been granted, if any other legitimate compelling reasons prevail no prohibition has been laid by this judgment against refusing the acceptance the fine amount. Adamantinsistence to approach Higher Courts for ratification of belated payments of fine would only lead to increasing number of unnecessary petitions being filed before the higher courts in a judicial system that suffers from lack of sufficient number of judges and from backlogging and pendency of cases. Even if the belated payment is refused by the higher court, by virtue of Ss.68 and 69 of the I.P.C. the authorities would have to accept the fine as and when tendered by the convict and terminate his imprisonment accordingly. A direction to accept the fine even if tendered late cannot be therefore seen as any sort of “PETITION ALLERGY”, “APPLICATION PHOBIA” OR “MOTION DISGUST”. As repeatedly pointed out by the Honorable Courts, procedure is to be viewed as the handmaid of justice and not meant to hamper the cause of justice or sanctify miscarriage of justice.

 This judgment may be seen as a practical solution to question that had been considered by the court, which would in turn serve justice to the parties and prevent unnecessary petitions being filed before court the aftermath of which would be mechanically predictable and thereby contribute its fair share in reducing any backlog that may be created and to ensure timely justice.