India till needs sedition law

It is worthy of note that the word “sedition” which occurred in Art. 13 (2) of the draft Constitution prepared by the Drafting Committee was deleted before the article was finally passed its Art.19 (2). In this connection it may be recalled that the Federal Court had, in defining sedition in Niharendu Dutt vs. Emperor, 1942 F. C. R. 38 held that “the acts or words complained of must either incite to disorder or must be such as to satisfy reasonable men that that is their intention or tendency”, but the Privy Council overruled that decision and emphatically reaffirmed the view expressed in Queen-Empress vs. Bal Gangadhar Tilak, 22 Bom. 112 to the effect that

“the offence consisted in exciting or attempting to excite in others certain bad feelings towards the Government and not in exciting or attempting to excite mutiny or rebellion, or any sort of actual disturbance, great or small” Emperor vs. Sadashiv Narayan, 74 I. A. 89”

Deletion of the word ‘sedition’ from the draft Art.13 (2), therefore, shows 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 or tend to overthrow the State. It is also significant that the corresponding Irish formula of “undermining the public order or the authority of the State” (Art. 40 (6) (i) of the Constitution of Eire, 1937) did not apparently find favour wish the framers of the Indian Constitution. Thus, very narrow and stringent limits have been set to permissible legislative abridgement of the right of free speech and expression and this was doubtless due to the realisation that freedom of speech and of the press lay at the foundation of all democratic organisations, for without free political discussion no public education, so essential for the proper functioning of the processes of popular Government, is possible. A freedom of such amplitude might involve risks of a abuse. But the framers of the Constitution may well have reflected with Madison who was ‘the leading spirit in the preparation of the First Amendment of the Federal Constitution”, that “it is better to leave a few of its noxious branches to their luxuriant growth than, by pruning them away, to injure the vigour of those yielding the proper fruits” (Quoted in Near vs. Minnesotta 283 U. S 607 at 717-8 ).