The decision of Gwyer, C.J., held the field for several years until the Privy Council, dealing with a case under the defence of India Rules, expressed the view in King-Emperor v. Sadhasiv Narayan Bhalerao (5) that the test laid down by the learned Chief Justice was not applicable in India where the offence under section 124A of the Penal Code should be construed with reference to the words used in that section. They also added :-
“The word ‘sedition’ does not occur either in section 124A or in the Rule; it is only found as a marginal note to section 124A, and is not an operative part of the section, but merely provides the name by which the crime defined in the section will be known. There can be no justification for restricting the contents of the section by the marginal note. In England there is no statutory definition of sedition; its meaning and content have been laid down in many decisions, some of which are referred to by the Chief Justice, but these decisions are not relevant when you have a statutory definition of that which is termed sedition, as we have in the present case.
Their Lordships are unable to find anything in the language of either section 124A or the Rule which could suggest that ‘the acts or words complained of must either incite to disorder or must be such as to satisfy reasonable men that this is their intention or tendency.’“
14. The framers of the Constitution must have, therefore, found themselves face to face with the dilemma as to whether the word “sedition” should be used in Art. 19(2) and if it was to be used, in what sense it was to be used. On the one hand, they must have had before their mind the very widely accepted view supported by numerous authorities that sedition was essentially an offence against public tranquillity and was connected in some way or other with public disorder; and, on the other hand, there was the pronouncement of the Judicial Committee that sedition as defined in the Penal Code did not necessarily imply any intention or tendency to incite disorder. In these circumstances, it is not surprising that they decided not to use the word “sedition” in clause (2) but used the more general worse which cover sedition and everything else which makes sedition such a serious offence. That sedition does undermine the security of the State is a matter cannot admit of much doubt. That it undermines the security of the State usually through the medium of public disorder is also a matter on which eminent Judges and jurists are agreed. Therefore it is difficult to hold that public disorder or disturbance of public tranquillity are not matters which undermine the security of the State.
15. It will not be out of place to quote here the following passage from Stephen’s Criminal Law of England (Vol. II, pp. 242 and 243) :-
“It often happens, however, that the public peace is disturbed by offences which without tending to the subversion of the existing political Constitution practically subvert the authority of the Government over a greater or less local area for a longer or shorter time. The Bristol riots in 1832 and the Gordon riots in 1780 are instances of this kind. No definite line can be drawn between insurrections of this sort, ordinary riots, and unlawful assemblies. The different between a meeting stormy enough to cause well founded fear of a breach of the peace, and a civil war the result of which may determine the course of a nation’s history for centuries, is a difference of degree. Unlawful assemblies, riots, insurrections, rebellions, levying of war, are offences which run into each other, and are not capable of being marked off by perfectly definite boundaries. All of them have in common one feature, namely, that the normal tranquillity of a civilised society is in each of the cases mentioned disturbed either by actual force or at least by the show and threat of it.
Another class of offence against public tranquillity are those in which no actual force is either employed or displayed, but in which steps are taken tending to cause it. These are the formation of secret societies, seditious conspiracies, libels or words spoken.
Under these two heads all offences against the internal public tranquillity of the State may be arranged.”
Brij Bhushan and Another-(1950) Suppl. SCR 245