ON Criminal Appeal No 169 of 1957
771 Appeal by special leave from the judgment and order dated the April 9 1956 of the Patna High Court in Cr A No 445 of 1955
WITH Criminal Appeals Nos 124 to 126 of 1958
Appeals from the judgment and order dated May 16 1958 of the Allahabad High Court in Criminal Appeals Nos 76 and 108 of 1955 and Cr M Writ No 2371 of 1955
Janardan Sharma for appellant in Criminal Appeal No 169 of 1957 The appellant has been convicted under sections 124A and 505 Indian Penal Code
Both these sections are ultra vires as they contravene the provisions of article 191a of the Constitution
A speech may disturb public order or it may not but both are made punishable under Section 124A
The section hits speeches of both varieties permissible speeches and impermissible speeches
The explanation to section 124A do not affect the interpretation of the main section
In a democratic set up a citizen is entitled to criticise the Government with a view to change it
Two questions arises in the cases namely i does section 124A enact a law which is in the interest of public order and ii does this section impose reasonable restrictions in the interest of public order
The decision in I L R 1958 2 All
84 which has declared s124A to be ultra vires takes the correct law
R C Prasad for respondent in Criminal Appeal No 169 of 1957 Referred to the decision in Ramji Lal Modi vs State of U P 1957 SCR860
Stated that he would adopt the submissions to be made by Shri C B Agarwala
C B Agarwala for the appellant in Criminal Appeals Nos
124 to 126 of 1958 The correct meaning of the provisions of section 124A in the context 772 of the present set up and the Constitution is that given by the Federal Court in Niharendu Dutt s case and not the meaning given to them by the Privy Council in Bhalerao s case 74 I A 89
Intepretation by Courts of words of statutes to a particular set of facts has been changing with the change in the social and political structure of society and the opinion of its reasonable members
Section 124A is in a chapter which deals with offencss against the State
Therefore it is not a case of libel against any offioer but of an offence against the State
Words in the English law relating to sedition are the same as in section 124A vide Stephen s Commentary on the law of England Vol 4 page 141 Halsbury s Law of England 3rd Edition Vol 10 page 169 Jowitt s Dictionary of English law page 1605 Stephen s History of Criminal Law Vol 2 page 298 and 301 Chapter 24
Under English Law a tendency to create tumult or disorder is an essential element of sedition
Russel on Crimes Vol 1 p 229 R vs Collins  R vs Sullivan 11 Cox
Section 124A has been taken from the English Law see Section 124A must therefore be interpreted in the same manner as sedition is interpreted in England and it must be held that a tendency to disturb public order is an essential element of the offence under section 124A Articles 133 and 133A of the Canadian Criminal Code which deal with sedition have been given the same interpretation 1951 canadian section C R 265
The view taken in Tilak s case  in Bhalerao s case 74 IA 89 and in Wallice Johnsons case1940 A C 231 that incitement to violence or a tendency to disturb public order was not a necessary ingredient of section 124A is not the correct view
takes the correct view and lays down that the tendency to disturb public order is a necessary ingredient of the offence under section 124A Devi Saran s case 32 Pat
1124 also takes the same view
773 There are two interpretations of section 124A before the Court one taken by the Federal Court and the other taken by the Privy Council
This Court should accept the interpretation given by the section Court as that interpretation would make the section Constitutional
Even if the interpretation put by the Privy Council be accepted as correct one section 124A will still be valid
The section certainly contemplates cases where the speech is likely to disturb public order and as such the section in the interest of public order as contemplated in article 192 and the mere fact that some cases in which the public order is not likely to be disturbed are also included therein cannot invalidate the section
This court took a similar view in Ramjilal Modi s case  and in Virendra s case 1958 section C R 308 the decision Lohia s case 1960 2 section 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 remove
Even if the section be held according to the Privy Council view to include which threaten public order and those which the section can be held valid with respect s where public order is threatened as the two of case are severable
 1951 section C R 682 1953 1059 and  P Verma for the Attorney General of Article 3742 of the Constitution perversion of the Federal Court shall have the rect as the decision of the Supreme Court
Decision of the Federal Court in be deemed to be a decision of this Court and should be held binding
A tendency to disturb public order is inherent in section 124A itself
Gopal Behari for respondent in Criminal Appeal No 124 of 1958 The interpretataion of section 124A by 774 the Privy Council has been accepted by the High Court
Even in English Law sedition does not necessarily include an intention to disturb public order  Explanations 2 and 3 would be redundant if section 124A is interpreted to incorporate the English view of sedition
The Allahabad High Court as well as other High Courts have given the same interpretation of section 124A as the Privy Council has
See 1941 All 156 1930 Lah
309 and 10 Luck
The decision in Lohia s case also  governs the present case also section 124A punishes such speeches also as have no tendency to disturb public order and contravenes article 191a
It is not saved by article 192 as placing of restriction on such speeches is not in the interest of public order
It is not open to the Court to rewrite the section by removing from its purview such speeches as have no tendency to disturb public order and to confine it to such speeches as have a tendency to disturb public order
The whole section must fail it cannot be dissected
C B Agarwala in reply In English law is a necessary ingredient of seditious intention it must have a tendency to cause tumult or di R vs Alred  R vs Burdott 101 803 R vs O Brien The Council has only said that actual incite violence was not a necessary ingredient of It has not gone further and has not laid tendency to disturb public order was not a ingredient of section 124A Even though public is not an ingredient of the offeence under there is a tendency to disturb public speeches or writings which bring or atte bring into hatered or contempt or excite or at to excite dissatisfaction towards the Government established by law
January 20
The Judgment of the court was delivered by 775 SINHA C J
In these appeals the main question in controversy is whether sections 124A and 505 of the Indian Penal Code have become void in view of the provisions of article 191a of the Constitution
The constitutionality of the provisions of section 124A which was mainly canvassed before us is common to all the appeals the facts of which may shortly be stated separately
In Criminal Appeal 169 of 1957 the appellant is one Kedar nath Singh who was prosecuted before a Magistrate 1st Class at Begusarai in the district of Monghyr in Bihar
He framed the following charges against the accused person which are set out in extenso in order to bring out the gravamen of the charge against him First
That you on 26th day of May 1953 at village Barauni P section Taghra Monghyr by speaking the words to wit a To day the dogs of the C I D are loitering round Barauni
Many official dogs are sitting even in this meeting
The people of India drove out the Britishers from this country and elected these Congress goondas to the gaddi and seated them on it
To day 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 to day
The blood of our brothers mazdoors and Kishanas is being sucked
The capitalists and the zamindars of this country help these Congress goondas
These zamindars and capitalists will also have to be brought before the peoples court along with these Congress goondas
776 b On the strength of the organisation and unity of Kisans and mazdoors the Forward Communists Party will expose the black deeds of the Congress goondas who are just like the Britishers
Only the colour of the body has changed
They have to day established a rule of lathis and bullets in the country
The Britishers had to go away from this land
They had aeroplanes guns bombs and other weapons with them
c The Forward Communist Party does not believe in the doctrine of vote itself
The party had always been believing in revolution and does so even at present
We believe in that revolution which will come and in the flames of which the capitalists zamindars and the Congress leaders of India who have made it their profession to loot the country will be reduced to ashes and on their ashes will be established a Government of the poor and the downtrodden people of India
d It will be a mistake to expect anything from the Congress relers
They Congress rulers have set up V Bhave in the midst of the people by causing him wear a langoti in order to divert the people s attention from their mistakes
To day Vinova is playing a drama on the stage of Indian politics
Confusion is being created among the people
I want to tell Vinova and advice his agents you should understand it the people cannot be deceived by this illusion and fraud of Vinova
I shall vinova not to become a puppet in the of the Congress men
These persons understand the Yojna of Vinova realise that Vinova is an agent to the Congress Government
e I tell you that this Congress Government will do no good to you
777 f I want to tell the last word even to the Congress Tyrants you play with the people and ruin them by entangling them in the mesh of bribery black marketing and corruption
To day the children of the poor are hankering for food and you Congress men are assuming the attitude of Nawabs sitting on the chairs  Brought or attempted to bring into hatred or contempt or excited or attempted to excite disaffection towards the Government established by law in the Indian Union and thereby committed an offence punishable under section 124A of the Indian Penal Code and within my cognizance
Secondly
That you on the 26th day of May 1953 at village Barauni P section Tegra Monghyr made the statement to wit a To day the dogs of the C I D are loitering round Barauni
Many official dogs are sitting even in this meeting
The people of India drove out the Britishers from this country And elected these Congress Goondas to the gaddi and seated them on it
To day these Congress Goondas are sitting on the gaddi due to the mistake of the people
When we have driven out the Britishers we shall strike and turn out these Congress Goondas
These Congress Goondas are banking upon the American dollars and imposing various kinds of taxes on the people to day
The blood of our brothers Mazdoors and Kisans is being sucked
The capitalists and the zamindars of this country help these Congress Goondas
These zamindars and capitalists will also have to be brought before the people s Court along with these Congress Goondas
778 b On the strength of organisation and unity of kisans and mazdoors the Forward Communist Party will expose the black deeds of the Congress Goondas who are just like the Britishers
Only the colour of the body has changed
They have to day established a rule of lathis and bullets in the country
The Britishers had to go away from this land
They had aeroplanes guns bombs and other reasons with them
c The Forward Communist party does not believe in the doctrine of votes itself
The party had always been believing in revolution and does so even at present
We believe in that revolution which will come and in the flames of which the capitalists zamindars and the Congress leaders of India who have made it their profession to loot the country will be reduced to ashes and on their ashes will be established a Government of the poor and the downtrodden people of India
d It will be a mistake to expect anything from the Congress rulers
They Congress rulers have set up V Bhave in the midst of the people by causing him wear a langoti in order to divert the attention of the people from their mistakes
To day Vinoba is playing a drama on the stage of Indian politics
Confusion is being created among the people
I want to tell Vinova and advise his agents You should understand it that the people cannot be deceived by this Yojna illusion and fraud of Vinova
I shall advice Vinova not to become a puppet in the hands of the Congress men
Those persons who understand the Yojna of Vinova realise that Vinova is an agent of Congress Government
779 e I tell you that no good will be done to you by this Congress Government
f I want to tell the last word even to Congress tyrants you play with the people and ruin them by entangling them in the mesh of bribery black marketing and corruption
To day the children of the poor are hankering for food and you Congress men are assuming the attitude of Nawabs sitting on the chairs 
With intent to cause or which was likely to cause fear or alarm to the public whereby any persons might be induce to commit an offence against the State of Bihar and against the public tranquility and thereby committed an offence punishable under section 505b of the Indian Penal Code and within my cognizance
After recording a substantial volume of oral evidence the learned Trial Magistrate convicted the accused person both under sections 124A and 505b of the Indian Penal Code and sentenced him to under go rigorous imprisonment for one year
No separate sentence was passed in respect of the conviction under the latter section
The convicted persons preferred an appeal to the High Court of Judicature at Patna which was heard by the late Mr Justice Naqui Imam sitting singly
By this judgment and order dated April 9 1956 he upheld the convictions and the sentence and dismissed the appeal
In the course of his judgment the learned Judge observed that the Judge observed of the charge against the appellant was nothing but a vilification of the Government that it was full of incitements to revolution and that the speech taken as a whole was certainly seditionus
It is not a speech critising any of is measures
He held that the offences both under sections 124A 505b of the Indian Penal Code had been made out
780 The convicted person moved this Court and obtained special leave to appeal
It will be noticed that the constitutionality of the provisions of the sections under which the appellant was convicted had not been convassed before the High Court
But in the petition for special leave to this Court the ground was taken that sections 124A and 505 of the Indian Penal Code are inconsistent with article 191 a of the Constitution
The appeal was heard in this Court in the first instance by a Division Bench on May 5 1959
The Bench finding that the learned counsel vco the appellant had raised the constitutional issue as to the validity of sections 124A and 505 of the Indian Penal Code directed that the appeal be placed for hearing by a Constitution Bench
The case was then placed before a Constitution Bench on November 4 1960 when that Bench directed notice to issue to the Attorney General of India under r 1 O41 of the Supreme Court Rules
The matter was once again placed before a constitution Bench on February 9 1961 when it was adjourned for two months in order to enable the State Governments concerned with this appeal as also with the connected Criminal Appeals Nos 124 126 of 1958 in which the Government of Uttar Pradesh is the appellant to make up their minds in respect of the proseocuions as also in view of the report that the Law Commission was considering the question of amending the law of sedition in view of the new set up
As the States concerned have instructed their counsel to press the appeals the matter has finally come before us
In Criminal Appeals 124 126 of 1958 the State of Uttar Pradesh is the appellant though the respondents are different
In Criminal appeal 124 of 1958 the accused person is one Mohd Ishaq Ihahi
He was prosecuted for having delivered a speech at Aligarh as Chairman of the Reception Committee of the All India Muslim Convention on October 30 781 1953
His speech on that occasion was thought to be seditious
After the necessary sanction the Magistrate held an enquiry and finding a prima facie case made out against the accused committed him to the Court of Session
The learned Sessions Judge by his Judgment dated January 8 1955 acquitted him of the charge under section 153A but convicted him of the other charge under section 124A of the Indian Penal Code and sentenced him to rigorous imprisonment for one year
The convicted person preferred an appeal to the High Court
In the High Court the constitutionality of section 124A of the Indian Penal Code was challenged
In Criminal Appeal No 125 of 1958 the facts are that on May 29 1954 a meeting of the Bolshovik Party was organised in village Hanumanganj in the District of Basti in Uttar Pradesh
On that occasion the respondent Rama Nand was found to have delivered an objectionable speech in so far as he advocated the use of violence for overthrowing the Government established by law
After the sanction of the Government to the prosecution had been obtained the learned Magistrate held an enquiry and ultimately committed him to take his trial before the Court of Sessions
In due course the learned Sessions Judge convicted the accused person under section 124A of the Indian Penal Code and sentenced him to rigorous imprisonment for three years
He held that the accused person had committed the offence by inciting the audience to an open violent rebellion against the Government established by law by the use of arms
Against the aforesaid order of conviction and sentence the accused person preferred an appeal to the High Court of Allahabad
In Criminal Appeal 126 of 1958 the respondent is one Parasnath Tripathi
He is alleged to have delivered a speech in village Mansapur PS Akbarpur in the district of Faizabad on September 26 1955 in which he is said to have 782 exhorted the audience to organise a volunteer army and resist the Government and its servants by violent means
He is also said to have excited the audience with intent to create feelings of hatred and enmity against the Government
When he was placed on trial for an offence under section 124A of the Indian Penal Code the accused person applied for a writ of Habeas Corpus in the High Court of Judicature at
Allahabad on the ground that his detention was illegal inasmuch as the provisions section 124A of the Indian Penal Code were void as being in contravention of his fundamental rights of free speech and expression under article 191a of the Constitution
This matter along with the appeals which have given rise to appeals Nos 124 and 125 as aforesaid were ultimately placed before a Full Bench consisting of Desai Gurtu and Beg JJ
The learned judges in separate but concurring judgments took the view that section 124A of the Indian Penal Code was ultra vires article 191a of the Constitution
In that view of the matter they acquitted the accussed persons convicted at aforesaid in the two appeals Nos 124 and 125 and granted the writ petition of the accused in criminal Appeal No 126
In all these cases the High Court granted the necessary certificate that the case involved important questions of law relating to the interpretation of the Constitution
That is how these appeals are before by on a certificate of fitness granted by the High Court
Shri C B Agarwala who appeared on behalf of the State of Uttar Pradesh in support of the appeals against the orders of acquittal passed by the High Court contended that the judgment of the High Court bow reported in Ram Nandan vs State 1 in which it was laid down by the Full Bench that section 124A of the Indian Penal Code was ultra article 191a of the Constitution and 783 therefore void for the reason that it was not in the interest of public order and that the restrictions imposed there by were not reasonable restrictions on the freedom of speech and expression was erroneous
He further contended that the section impugned came within the saving cl
2 of article 19 and that the reasons given by the High Court to the contrary were erroneous
He relied upon the observations of the Federal Court in Niharendu Dutt Majumdar vs The King Emperor 1
He also relied on Stephen s Commentaries on the Laws of England Volume IV 21st Edition page 141 and the Statement of the Law in Halsbury s Laws of England 3rd Edition volume 10 page 569 and the cases referred to in those volumes
Mr Gopal Behari appearing on behalf of the respondents in the Allahabad cases has entirely relied upon the full Bench decision of the Allahabad High Court in his favour
Shri Sharma appearing on behalf of the appellant in the appeal from the Patna High Court has similarly relied upon the decision aforesaid of the Allahabad High Court
Before dealing with the contentions raised on behalf of the parties it is convenient to set out the history of the law the amendments it has undergone and the interpretations placed upon the provisions of section 124A by the Courts in India and by their Lordships of the judicial Committee of the Privy Council
The section corresponding to section 124A was originally section 113 of Macaulay s Draft Penal Code of 1837 39 but the section was omitted from the Indian Penal Code as it was enacted in 1860
The reason for the omission from the Code is enacted is not clear but perhaps the legislative body did not feel sure above its authority to enact such a provision in the Code
Be that as it may section 124A was not placed on the Statute Book until 1870 by Act XXVII of 1870
There 784 was a considerable amount of discussion at the time the amendment was introduced by Sir James Stephen but what he said while introducing the bill in the legislature may not be relevant for our present purposes
The section as 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 measures of the Government with the intention of exciting only this species of disapprobation is not an offence within this clause
 The first case in Indian that arose under the section is what is known as the Bangobasi case Queen Empress vs Jagendra Chunder Bose 1 which was tried by a Jury before Sir Comer Petheram C J while charging the jury the learned Chief Justice explained the law to the jury in these terms 785 Disaffection means a feeling contrary to affection in other words dislike or hatred
Disapprobation means simply disapproval
It is quite possible to disapprove of a men s sentiments or action and yet to like him
The meaning of the two words is so distinct that I feel it hardly necessary to tell you that the contention of Mr Jackson cannot be sustained
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 with the intention of creating such a disposition in his bearers 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
It is sufficient for the purposes of the section that the words used are calculated to excite feelings of ill will against the Government and to hold it up to the hatred and contempt of the people and that they were used with the intention to create such feeling
 The next case is the celebrated case of Queen Empress vs Balqanqaddhar Tilak 1 which came before the Bobay High Court
The case was tried by a jury before Strachey J The learned judge in the course of his charge to the jury explain the law to them in these terms The offence as defined by the first clause is exciting or attempting to excite feelings of disaffection to the Government
What are feelings of disaffection  I agree with Sir Comer Petheram in the Bangobasi case that disaffection means simply the 786 absence of affection
It means hatred enmity dislike hostility contempt and every from of ill will to the Government
Disloyalty is perhaps the best general term comprehending every possible form of bad feeling to the Government
That is what the law means by the disaffection which a man must not excite or attempt to excite he must not make or try to make others feel enmity of any kind towards the Government
You will observe that the amount or intensity of the disaffection is absolutely immaterial except perhaps in dealing with the question of punishment if a man excites or attempts to excite feelings of disaffection great or small he is guilty under the section
In the next place it is absolutely immaterial whether any feelings of disaffection have been excited or not by the publication in question
It is true that there is before you a charge against each prisoner that he has actually excited feelings of disaffection to the Government
If you are satisfied that he has done so you will of course find him guilty
But if you should hold that charge is not made out and that no one is proved to have been excited to entertain feelings of disaffection to the Government by reading these articles still that alone would not justify you in acquitting the prisoners
For each of them is charged not only with exciting feelings of disaffection but also with attempting to excite such feelings
You will observe that section places on absolutely the same footing the successful exciting of feelings of disaffection and the unsuccessful attempt to excite them so that if you find that either of the prisoners has tried to excite such feeling in others you must convict him even if there is nothing to show that he succeeded
Again it is 787 important that you should fully realise another point
The offence consists in exciting or attempting to excite in others certain bad feeling towards the Government
It is not the exciting or attempting to excite mutiny or rebellion or any sort of actual disturbance great or small
Whether any disturbance or outbreak was caused by there articles is absolutely immaterial
If the accused intended by the articles to excite rebellion or disturbance his act would doubtless fall within section 124A and would probably fall within other sections of the Penal Code
But even if he neither excited nor intended to excite any rebellion or outbreak or forcible resistance to the authority of the Government still if he tried to excite feelings of enmity to the Government that is sufficient to make him guilty under the section
I am aware that some distinguished persons have thought that there can be no offence against the section unless the accused either counsels or suggests rebellion or forcible resistance to the Government
In my opinion that view is absolutely opposed to the express words of the section itself which as plainly as possible makes the exciting or attempting to excite certain feelings and not the inducing or attempting to induce to any course of action such as rebellion or forcible resistance the test of guilt
I can only account for such a view by attributing it to a complete misreading of the explanation attached to the section and to a misapplication of the explanation beyond its true scope
 The long quotation has become necessary in view of what followed later namely that this statement of the law by the learned judge came in for a great deal of comment and judicial notice
We have omitted the charge to the jury relating 788 to the explanation to section 124A because that explanation has now yielded place to three separate explanations in view of judicial opinions expressed later
The jury by a majority of six to three found Shri Balgangadhar Tilak guilty
Subsequently he on conviction applied under cl 41 of the Letters Patent for leave to appeal to the Privy Council
The application was heard by a Full Bench consisting of Farran C J Candy and Strachey JJ
It was contended before the High Court at the leave stage inter alia that the sanction given by the Government was not sufficient in law in that it had not set out the particulars of the offending articles and secondly that the judge misdirected the jury as to the meaning of the word disaffection insofar as he said that it might be equivalent to absence of affection
With regard to the second point which is only relevant point before us the Full Bench expressed itself to the following effect The other ground upon which Mr Russell has asked as to certify that this is a fit case to be sent to Her Majesty in Council is that there has been a misdirection and he based his argument on one major and two minor grounds
The major ground was that the section cannot be said to have been contravened unless there is a direct incitement to stir up disorder or rebellion
That appears to us to be going much beyond the words of the section and we need not say more upon that ground
The first of the minor points is that Mr Justice Strachey in summing up the case to the jury stated that disaffection meant the absence of affection
But although if that phrase had stood alone it might have misled the jury yet taken in connection with the context we think it is impossible that the jury could have been misled by it
That expression was used in connection with the 789 law as led down by Sir Comer Petheram in Calcutta in the Bangobashi case
There the Chief Justice instead of using the words absence of affection used the words contrary to affection
If the words contrary to affection had been used instead of absence of affection in this case there can be no doubt that the summing up would have been absolutely correct in this particular
But taken in connection with the context it is clear that by the words absence of affection the learned Judge did not mean the negation of affection but some active sentiment on the other side
Therefore on that point we consider that we cannot certify that this is a fit case for appeal
 In this connection it must be remembered that it is not alleged that there has been a miscarriage of Justice
 After making those observations the Full Bench refused the application for leave
the case was then taken to Her Majesty in council by way of application for special leave to appeal to the Judicial Committee
Before their Lordships of the Privy Council Asquith Q C assisted by counsel of great experience and eminence like Mayne W C Bonnerjee and others contended that there was a misdirection as to the meaning of section 124A of the Penal Code in that the offence had been defined in terms to wide to the effect that disaffection meant simply absence of affection and that it comprehended every possible form of bad feeling to the Government
In this connection reference was made to the observations of Petheram CJ in Queen Empress vs Jogender Bose1
It was also contended that the appellant s comments 790 had not exceeded what in England would be considered within the functions of a Public journalist and that the misdirection complained of was of the greatest importance not merely to the affected person but to the whole of the Indian Press and also to all her Majesty s subjects and that it injuriously affected the liberty of the press and the right to free speech in public meetings
But in spite of the strong appeal made on behalf of the petitioner for special leave the Lord Chancellor delivering the opinion of the Judicial Committee while dismissing the application observed that taking a view of the whole of the summing up they did not see any reason to dissent from it and that keeping in view the rules which Their Lordships observed in the matter of granting leave to appeal in criminal cases they did not think that the case raised questions which deserve further consideration by the Privy Council
vide Gangadhar Tilak vs Queen Empress 1
Before noticing the further changes in the Statute it is necessary to refer to the Full Bench decision of the Allahabad High Court in Queen Empress vs Amba Prasad 2
In that case Edge CJ who delivered the judgment of the Court made copious quotations from the judgments of the Calcutta and the Bombay High Courts in the cases above referred to
While generally adopting the reasons for the decisions in the aforesaid two cases the learned Chief Justice observed that a man may be guilty of the offence defined in section 124A of attempting to excite feelings of disaffection against the Government established by law in British India although in a particular article or speech he may insist upon the desirability or expediency of obeying and supporting the Government
He also made reference to the decision of the Bombay High Court in the Satara 3 case
In that case a Full Bench consisting of Farran CJ and Parsons and Ranade JJ 791 had laid it down that the word disaffection in the section is used in a special sense as meaning political alienation or discontent or disloyalty to the Government or existing authority
They also held that the meaning of word disaffection in the main portion of the section was not varied by the explanation
Persons J held that the word disaffection could not be construed as meaning absence of or contrary of affection or love 
Ranade J interpreted the word disaffection not as meaning mere absence or negation of love or good will but a positive feeling of aversion which is akin to ill will a definite insubordination of authority or seeking to alienate the people and weaken the bond of allegiance a feeling which tends to bring the Government into hatred and discontent by imputing base and corrupt motives to it
The learned Chief Justice of the Allahabad High Court observed that if those remarks were meant to be in any sense different from the construction placed upon the section by Strachey J which was approved as aforesaid by the Judicial Committee of the Privy Council the later observations of the Bombay High Court could not be treated as authoritative
As the accused in the Allahabad case had pleaded guilty and the appeal was more or less on the question of sentence it was not necessary for their Lordships to examine in detail the implications of the section though they expressed their general agreement with the view of the Calcutta and the Bombay High Courts in the first two cases referred to above
The section was amended by the Indian Penal Code Amendment Act IV of 1898
As a result of the amendment the single explanation to the section was replaced by three separate explanations as they stand now
The section as it now stands in its present form is the result of the several AOS of 1937 1948 and 1950 as a result of the constitutional changes by the Government of India Act 1935 by the Independence Act of 1947 and by the Indian 792 Constitution of 1950
Section 124A as it has emerged after successive amendments by way of adaptations as aforesaid reads as follows Whoever by words either spoken or written or by signs or by visible representation or otherwise brings or attempts to bring into hatred to contempt or excites or attempts to excite disaffection towards the Government established by law in India shall be punished with transportation for life or any shorter term 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 exiting or attempting to excite hatred contempt or disaffection do not constitute an offence under this section
Explanation 3
Comments expressing disapprobation of the administrative of other action of the Government without exciting or attempting to excite hatred contempt or disaffection do not constitute an offence under this section
 This offence which is generally known as the offence of Sedition occurs in chapter IV of the Indian Penal Code headed Of offences against the State 
This species of offence against the State was not an invention of the British
Government in India but has been known in England for centuries
Every State whatever its form of Government has to be armed with the power to punish those who by 793 their conduct jeopardise the safety and stability of the State or disseminate such feelings of disloyalty as have the tendency to lead to the disruption of the State or to public disorder
In England the crime has thus been described by Stephen in his Commentaries on the Laws of England 21st Edition volume IV at pages 141 142 in these words Section IX
Sedition and Inciting to Disaffection We are now concerned with conduct which on the one hand fall short of treason and on the other does not involve the use of force or violence
The law has here to reconcile the right of private criticism with the necessity of securing the safety and stability of the State
Sedition may be defined as conduct which has either as its object or as its natural consequence the unlawful display of dissatisfaction with the Government or with the existing order of society
The seditious conduct may be by words by deed or by writing
Five specific heads of sedition may be enumerated according to the object of the accused
This may be either 1
to excite disaffection against the King Government or Constitution or against Parliament or the administration of justice 2 to promote by unlawful means any alteration in Church or State 3 to incite a disturbance of the peace 4 to raise discontent among the King s subjects 5
to excite class hatred
It must be observed that criticism on political matters is not of itself seditious
The test is the manner in which it is made
Candid and honest discussion is permitted
The law 794 only interferes when the discussion passes the bounds of fair criticism
More especially will this be the case when the natural consequence of the prisoner s conduct is to promote public disorder
 This statement of the law is derived mainly from the address to the Jury by Fitzerald J in the case of Reg vs Alexander Martin Sullivan 1
In the course of his address to the Jury the learned Judge observed as follows Sedition is a crime against society nearly allied to that of treason and it frequently precedes treason by short interval
Sedition in itself is a comprehensive term and it embraces all those practices whether by word deed or writing which are calculated to disturb the tranquility of the State and lead ignorant persons to endeavour to subvert the Government and the laws of the empire
The objects of sedition generally are to induce discontent and insurrection and stir up opposition to the Government and bring the administration of justice into contempt and the very tendency of sedition is to incite the people to insurrection and rebellion
Sedition has been described as disloyalty in action and the law considers as sedition all those practices which have for their object to excite discontent or dissatisfaction to create public disturbance or to lead to civil war to bring into hatred or contempt the Sovereign or the Government the laws or constitution of the realm and generally all endeavours to promote public disorder
 That the law has not changed during the course of the centuries is also apparent from the following statement of the law by Coleridge J in the course of his summing up to the Jury in the case of Rex
vs Aldred 2 795 Nothing is clearer than the law on this head namely that whoever by language either written or spoken incites or encourages other to use physical force or violence in some public matter connected with the State is guilty of publishing a seditious libel
The word sedition in its ordinary natural signification denotes a tumult an insurrection a popular commotion or an uproar it implies violence or lawlessness in some form  In that case the learned Judge was charging the Jury in respect of the indictment which contained the charge of seditious libel by a publication by the defendant
While dealing with a case arising under Rule 346 e of the Defence of India Rules under the Defence of India Act XXXV of 1939 Sir Maurice Gwyer CJ speaking for the Federal Court made the following observations in the case of Niharendu Dutt Majumdar vs The King Emperor 1 and has pointed out that the language of section 124A of the Indian Penal Code which was in pari materia with that of the Rule in question had been adopted from the English Law and referred with approval to the observations of Fitzerald J in the case quoted above and made the following observations which are quite apposite  generally speaking we think that the passage accurately states the law as it is to be gathered from an examination of a great number of judicial pronouncements
The first and most fundamental duty of every Government is the preservation of order since order is the condition precedent to all civilisation and the advance of human happiness
This duty has no doubt been sometimes performed in such 796 a way as to make the remedy worse than the disease but it does not cease to be a matter of obligation because some on whom the duty rests have performed it ill
It is to this aspect of the functions of government that in our opinion the offence of sedition stands related
It is the answer of the State to those who for the purpose of attacking or subverting it seek to borrow from the passage cited above to disturb its tranquillity to create public disturbance and to promote disorder or who incite others to do so
Words deeds or writings constitute sedition if they have this intention or this tendency and it is easy to see why they may also constitute sedition if they seek as the phrase is to bring Government into contempt
This is not made an offence in order to minister to the wounded vanity of Government but because where Government and the law cease to be obeyed because no respect is felt any longer for them only anarchy can follow
Public disorder or the reasonable anticipation or likelihood of public disorder is thus the gist of the offence
The acts or words complained of must either incite to disorder or must be such as to satisfy reasonable men that is their intention or tendency
 This statement of the law was not approved by their Lordships of the Judicial Committee of the Privy Council in the case of King Emperor vs Sadashiv Narayan Bhalerao 1
The Privy Council after quoting the observations of the learned chief Justice in Niharendu s case 2 while disapproving of the decision of the Federal Court observed that there was no statutory definition of Sedition in England and the meaning and content of the crime had to be gathered from any decisions
797 But those were not relevant considerations when one had to construe the statutory definition of Sedition  as in the Code
The Privy Council held that the language of section 124A or of the Rule aforesaid under the Government of India Act did not justify the statement of the law as made by the learned Chief Justice in Niharendu s case1 they also held that the expression excite disaffection did not include excite disorder and that therefore the decision of the Federal Court in Niharendu s case1 proceeded on a wrong construction of section 124A of the Penal Code and of sub para e sub rule 6 of Rule 34 of the Defence of India Rules Their Lordships approved of the dicta in the case of Bal Gangadhar Tilak 2 and in the case of Annie Basant vs Advocate General of Madras 3 which was a case under section 4 of the Indian Press Act
I of 1910 which was closely similar in language to section 124A of the Penal Code
The Privy Council also referred to their previous decision in Wallace Johnson vs The Kinq4 which was a case under sub section 8 of section 326 of the Criminal Code of the Gold Coast which defined seditious intention in terms similar to the words of s124A of the Penal Code
In that case their Lordships had laid down that incitement to violence was not necessary ingredient of the Crime of sedition as defined in that law
Thus there is a direct conflict between the decision of the Federal Court in Niharendu s case 1 and of the Privy Counsil in a number of cases from Indian and the Gold Coast referred to above
It is also clear that either view can be taken and can be supported on good reasons
The Federal Court decision takes into consideration as indicated above the pre exiting Common Law of England in respect of sedition
It does not appear from the report of 798 the Federal Court decision that the rulings aforesaid of the Privy Council had been brought to the notice of their Lordships of the Federal Court
So far as this Court is concerned the question directly arising for determination in this batch of cases has not formed the subject matter of decision previously
But certain observations made by this Court in some cases to be presently noticed with reference to the interrelation between freedom of speech and seditious writing or speaking have been made in the very first year of the coming into force of the Constitution
Two cases involving consideration of the fundamental right of freedom of speech and expression and certain laws enacted by some of the States imposing restrictions on that right came up for consideration before this Court
Those cases reported in Romesh Thappar vs The State of Madras1 and Brij Bhushan vs The State of Delhi2 were heard by Kania CJ Pazl Ali Patanjali Shastri Mehr Chand Mahajan Mukherjea and Das JJ and judgments were delivered on the same day May 26 1950
In Romesh Thappar s case 1 the majority of the Court declared section 91 A of the Madras Maintenance of Public Order Act Mad XXXIII of 1949 which had authorised imposition of restrictions on the fundamental right of freedom of speech to be in excess of cl
2 of article 19 of the Constitution authorising such restrictions and therefore void and unconstitutional
In Brij Bhushan s case 2 the same majority struck down section 71c of the East Punjab Public Safety Act 1949 as extended to the Province of Delhi authorising the imposition of restrictions on the freedom of speech and expression for preventing or combating any activity prejudicial to the public safety or 799 the maintenance of public order
The Court held those provisions to be in excess of the powers conferred on the Legislature by cl
2 of article 19 of the Constitution
Mr Justice Patanjali Sastri speaking for the majority of the Court in Romesh Thappar s case 1 made the following observations with reference to the decisions of the Federal Court and the Judicial Committee of the Privy Council as to what the law of Sedition in India was It is also worthy of note that the word sedition which occurred in article 132 of the Draft Constitution prepared by the Drafting Committee was deleted before the article was finally passed as article 192
In this connection it may be recalled that the Federal Court had in defining sedition in Niharendu Dutt Majumdar vs The King Emperor 2 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 Tilak s case 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 King Emperor vs Sadashiv Narayan Bhalerao
Deletion of the word sedition from the draft article 132 therefore shows that criticism of Government exciting disaffection or bad feelings toward 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 of or tend to overthrow the State
It is also significant that the corresponding 800 Irish formula of undermining the public order or the authority of the State article 406i of the Constitution of Fire 1937 did not apparently find favour with 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 domocratic organisations for without free political discussion no public education so essential for the proper functioning of the processes of popular government is possible freedom of such amplitude might involve risks of 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 naxious branches to their luxuriant growth than by prunning them away to injure the vigour of those yielding the proper fruits  quoted in Near vs Minnesotta
Those observations were made to bring out the difference between the security of the State and public order
As the latter expression did not find a place in article 192 of the Constitution as it stood originally the section was struck down as unconstitutional
Fazl Ali J dissented from the views thus expressed by the majority and reiterated his observations in Brij Bhushan s case 1 In the course of his dissenting judgment he observed as follows It appears to me that in the ultimate analysis the real question to be decided in this case is whether disorders involving menace to the 801 peace and tranquillity of the Province and affecting Public safety will be a matter which undermines the security of the State or not
I have borrowed the words quoted within inverted commas from the preamble of the Act which shows its scope and necessity and the question raised before us attacking the validity of the Act must be formulated in the manner I have suggested
If the answer to the question is in the affirmative as I think it must be then the impugned law which prohibits entry into the State of Madras of any document or class of documents for securing public safety and maintenance of public order should satisfy the requirements laid down in article 192 of the Constitution
From the trend of the arguments addressed to us it would appear that if a document is seditious its entry could be validly prohibited because sedition is a matter which undermines the Security of the State but if on the other hand the document is calculated to disturb public tranquillity and affect public safety its entry cannot be prohibited because public disorder and disturbance of public tranquillity are not matters which undermine the security of the State
Speaking for myself I cannot understand this argument
In Brij Bhushan vs The State
I have quoted good authority to show that sedition owes its gravity to its tendency to create disorders and authority on Criminal Law like Sir James Stephen has classed sedition as an offence against public tranquillity
 In Brij Bhushan case 1 Fazl Ali J who was again the dissenting judge gave his reasons to greater detail
He referred to the judgment of the Federal Court in Niharendu Dutt Majumdar s case 2 802 and to the judgment of the Privy Council to the contrary in King Emperor vs Sada Shiv Narayan 1
After having pointed out the divergency of opinion between the Federal Court of India and the Judicial Committee of the Privy Council the learned Judge made the following observations in order to explaim why the term sedition was not specifically mentioned in article 192 of the Constitution 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 article 192 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 Indian 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 words 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 which 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
 803 As a result of their differences in the interpretation of Art192 of the Constitution the Parliament amended cl2 of article 19 in the form in which it stands at present by the Constitution First Amendment Act 1951 by section 3 of the Act which substituted the original cl
2 by the new cl
This amendment was made with retrospective effect thus indicating that it accepted the statement of the law as contained in the dissenting judgment of Fazl Ali J in so far as he had pointed out that the concept of security of the state was very much allied to the concept of public order and that restrictions on freedom of speech and expression could validly be imposed in the interest of public order
Again the question of the limits of legislative powers with reference to the provisions of articles 19 1a and 192 of the Constitution came up for decision by a Constitution Bench of this Court in Ramji Lal Modi vs The State of UP 1
In that case the validity of section 295A of the Indian Penal Code was challenged on the ground that it imposed restrictions on the fundamental right of freedom of speech and expression beyond the limits prescribed by cl2 of article 19 of the Constitution
In this connection the Court observed as follows the question for our consideration is whether the impugned section can be properly said to be a law imposing reasonable restrictions on the exercise of the fundamental rights to freedom of speech and expression in the interests of public order
It will be noticed that language employed in the amended clause is in the interests of and not for the maintenance of
As one of us pointed out in Debi Saron vs The State of Bihar the expression in the interests of makes the ambit of the protection very wide
A law may not have 804 been designed to directly maintain public order and yet it may have been enacted in the interests of public order
 Though the observations quoted above do not directly bear upon the present controversy they throw a good deal of light upon the ambit of the power of the legislature to impose reasonable restrictions on the exercise of the fundamental right of freedom of speech and expression
In this case we are directly concerned with the question how for the offence as defined in section 124A of the Indian Penal Code is consistent with the fundamental right guaranteed by article 19 1 a of the Constitution which is in these terms 19
1 All citizens shall have the right
a to freedom of speech and expression  This guaranteed right is subject to the right of the legislature to impose reasonable restrictions the ambit of which is indicated by cl
2 which in its amended form reads as follows 2 Nothing in sub clause a of clause 1 shall affect 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 interests 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
 It has not been questioned before us that the fundamental right guaranteed by article 191a of the freedom of speech and expression is not an absolute right
It is common ground that the right is subject to such reasonable restrictions as would come within the purview of cl
2 which comprises a security of the State b friendly relations with foreign States c public order d decency or morality etc
With reference to the constitutionality 805 of section 124A or section 505 of the Indian Penal Code as to how far they are consistent with the requirements of cl
2 of article 19 with particular reference to security of the State and public order the section it must be noted penalises any spoken or written words or signs or visible representations etc which have the effect of bringing or which attempt to bring into hatred or contempt or excites or attempts to excite disaffection towards the Government established by law has to be distinguished from the person s for the time being engaged in carrying on the administration
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
That is why sedition  as the offence in section 124A has been characterised comes under Chapter VI relating to offences against the State
Hence any acts within the meaning of section 124A which have the effect of subverting the Government by bringing that Government into contempt or hatred or creating disaffection against it would be within the penal statute because the feeling of disloyalty to the Government established by law or enmity to it imports the idea of tendency to public disorder by the use of actual violence or incitement to violence
In other words any written or spoken words etc which have implicit in them the idea of subverting Government by violent means which are compendiously included in the term revolution  have been made penal by the section in question
But the section has taken care to indicate clearly that strong words used to express disapprobation of the measures of Government with a view to their improvement or alteration by lawful means would not come within the section
Similarly comments 806 however strongly worded expressing disapprobation of actions of the Government without exciting those feelings which generate the inclination to cause public disorder by acts of violence would not be penal
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
It has not been contended before us that if a speech or a writing excites people to violence or have the tendency to create public disorder it would not come within the definition of sedition 
What has been contended is that a person who makes a very strong speech or uses very vigorous words in a writing directed to a very strong criticism of measures of Government or acts of public officials might also come within the ambit of the penal section
But in our opinion such words written or spoken would be outside the scope of the section
In this connection it is pertinent to observe that the security of the State which depends upon the maintenance of law and order is the very basic consideration upon which legislation with a view to punishing offences against the State is undertaken
Such a legislation has on the one hand fully to protect and guarantee the freedom of speech and expression which is the sine quo non of a democratic form of Government that our Constitution has established
This Court as the custodian and guarantor of the fundamental rights of the citizens has the duty cast upon it of striking down any law which unduly restricts the freedom of speech and expression with which we are concerned in this case
But the freedom has to be guarded again 807 becoming a licence for vilification and condemnation of the Government established by law in words which incite violence or have the tendency to create public disorder
A citizen has a right to say or write whatever he likes about the Government or its measures by way of criticism or comment so long as he does not incite people to violence against the Government established by law or with the intention of creating public disorder
The Court has therefore the duty cast upon it of drawing a clear line of demarcation between the ambit of a citizen s fundamental right guaranteed under article 191a of the Constitution and the power of the legislature to impose reasonable restrictions on that guaranteed right in the interest of inter alia security of the State and public order
We have therefore to determine how far the sections 124A and 505 of the Indian Penal Code could be said to be within the justifiable limits of legislation
If it is held in consonance with the views expressed by the Federal Court in the case of Niharendu Dutt majumdar vs The King Emperor1 that the gist of the offence of sedition  is incitement to violence or the tendency or the intention to create public disorder by words spoken or written which have the tendency or the effect of bringing the Government established by law into hatred or contempt or creating disaffection in the sense of disloyalty to the State in other words bringing the law into line with the law of sedition in England as was the intention of the legislators when they introduced section 124A into the Indian Penal Code in 1870 as aforesaid the law will be within the permissible limits laid down in cl
2 of article 19 of the Constitution if on the other hand we give a literal meaning to the words of the section divorced from all the antecedent background in which the law of sedition has grown as laid down in the several decisions of the Judicial Committee of the Privy Council it will be true to 808 say that the section is not only within but also very much beyond the limits laid down in cl
2 aforesaid
In view of the conflicting decisions of the Federal Court and of the Privy Council referred to above we have to determine whether and how far the provisions of sections 124A and 505 of the Indian Penal Code have to be struck down as unconstitutional
If we accept the interpretation of the Federal Court as to the gist of criminality in an alleged crime of sedition namely incitement to disorder or tendency or likelihood of public disorder or reasonable apprehension thereof the section may lie within the ambit of permissible legislative restrictions on the fundamental right of freedom of speech and expression
There can be no doubt that apart from the provisions of 2 of article 19 sections 124A and 505 are clearly violative of article 191a of the Constitution
But then we have to see how far the saving clause namely cl2 of article 19 protects the sections aforesaid
Now as already pointed out in terms of the amended cl
2 quoted above the expression in the interest of public order are words of great amplitude and are much more comprehensive than the expression for the maintenance of as observed by this Court in the case of Virendra vs The State of Punjab 1
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 enmity against the Government the offence of sedition is complete then such an interpretation of the sections would make them unconstitutional in view of article 191a read with cl
It is well settled that if certain provisions of law construed in one way would make 809 them consistent with the Constitution and another interpretation would render them unconstitutional the Court would lean in favour of the former construction
The provisions of the sections read as a whole along with the explanations make it reasonably clear that the sections aim at rendering penal only such activities as would be intended or have a tendency to create disorder or disturbance of public peace by resort to violence
As already pointed out the explanations appended to the main body of the section make it clear that criticism of public measures or comment on Government action however strongly worded would be within reasonable limits and would be consistent with the fundamental right of freedom of speech and expression
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
It is also well settled 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 vide 1
The Bengal Immunity Company Limited vs The State of Bihar 1 and 2 RMD Chamarbaugwalla vs The Union of India 2
Viewed in that light we have no hesitation in so construing the provisions of the sections impugned in these cases as to limit their application to acts involving intention or tendency to create disorder or disturbance of law and order or incitement to violence
We may also consider the legal position as it should emerge assuming that the main section 124A is 810 capable of being construed in the literal sense in which the Judicial Committee of the Privy Council has construed it in the cases referred to above
On that assumption it is not open to this Court to construe the section is such a way as to avoid the alleged unconstitutionality by limiting the application of the section in the way in which the Federal Court intended to apply it  In our opinion there are decisions of this Court which amply justify our taking that view of the legal position
This Court in the case of RMD Chamarbaugwalla vs The Union of India 1 has examined in detail the several decisions of this Court as also of the Courts in America and Australia
After examining those decisions this Court came to the conclusion that if the impugned provisions of a law come within the constitutional powers of the legislature by adopting one view of the words of the impugned section or Act the Court will take that view of the matter and limit its application accordingly in preference to the view which would make it unconstitutional on another view of the interpretation of the words in question
In that case the Court had to choose between a definition of the expression Prize Competitions as limited to those competitions which were of a gambling character and those which were not
The Court chose the former interpretation which made the rest of the provisions of the Act Prize Competitions Act XLII of 1955 with particular reference to sections 4 and 5 of the Act and Rules 11 and 12 framed thereunder valid
The Court held that the penalty attached only to those competitions which involved the element of gambling and those competitions in which success depended to a substantial degree on skill were held to be out of the purview of the Act
The ratio decidendi in that case in our opinion applied to the case in hand in so far as we propose to limit its operation only to such activities as come within the ambit of 811 the observations of the Federal Court that is to say activities involving incitement to violence or intention or tendency to create public disorder or cause disturbance of public peace
We do not think it necessary to discuss or to refer in detail to the authorities cited and discussed in the reported case RMD Chamarbaugwalla vs The Union of India 1 at pages 940 to 952
We may add that the provisions of the impugned sections impose restrictions on the fundamental freedom of speech and expression but those restrictions cannot but be said to be in the interest of public order and within the ambit of permissible legislative interference with that fundamental right
It is only necessary to add a few observations with respect to the constitutionality of section 505 of the Indian Penal Code
With reference to each of the three clauses of the section it will be found that the gravamen of the offence is making publishing or circulating any statement rumour or report a with intent to cause or which is likely to cause any member of the Army Navy or Air Force to mutiny or otherwise disregard or fail in his duty as such or b to cause fear or alarm to the public or a section of the public which may induce the commission of an offence against the State or against public tranquillity or c to incite or which is likely to incite one class or community of persons to commit an offence against any other class or community
It is manifest that each one of the constituent elements of the offence under section 505 has reference to and a direct effect on the security of the State or public order
Hence these provisions would not exceed the bounds of reasonable restrictions on the right of freedom of speech and expression
It is clear 812 therefore that cl
2 of article 19 clearly save the section from the vice of unconstitutionality
It has not been contended before us on behalf of the appellant in CA 169 of 1957 or on behalf of the respondents in the other appeals No 124 126 of 1958 that the words used by them did not come within the purview of the definition of sedition as interpreted by us
No arguments were advanced before us to show that even on the interpretation given by us their cases did not come within the mischief of the one or the other section as the case may be
It follows therefore that the Criminal Appeal 169 of 1957 has to be dismissed
Criminal Appeals 124 126 of 1958 will be remanded to the High Court to pass such order as it thinks fit and proper in the light of the interpretation given by us
Appeal No 169 of 1957 dismissed
Appeals Nos
124 to 126 of 1958 allowed


Summary:
Section 124A of the Indian Penal Code which makes sedition an offence is constitutionally valid
Though the section imposes restrictions on the fundamental freedom of 770 speech and expression the restrictions are in the interest of public order and are within the ambit of permissible legislative interference with the fundamental right
There is a conflict on the question of the ambit of section 124A between decision of the federal Court and of the Privy Council
The Federal Court has held that words deeds or writings constituted an offence under section 124A only when they had the intention or tendency to disturb public tranquility
to create public disturbance or to promote disorder whilst the Privy Council has taken the view that it was not an essential ingredient of the offence of sedition under section 124A that the words etc should be intended to or be likely to incite public disorder
Either view can be taken and supported on good reasons
If the view taken by the Federal Court was accepted section 124A would be use constitutional but if the view of the Privy Council was accepted it would be unconstitutional
It is well settled that if certain provisions of law construed in one way would make them consistent with the constitution and another interpretation would render them unconstitutional the Court would lean in favour of the former construction
Keeping in mind the reasons for the introduction of section 124A and the history of sedition the section must be so construed as to limit its application to acts involving intention or tendency to create disorder or disturbance of law and order or incitement to violence
Niharendu Dutt Majumdar vs King Emperor  followed
King Emperor vs Sadashiv Narayan Bhalerao 1947 LR 74 IA 89 and Wallace Johnson vs The King not followed
Romesh Thapar vs The State of Madras
1050 SCR 594
Brij Bhushan vs The State of Delhi  and Ramji Lal Modi vs The State UP   referred to
The Bengal Immunity Company Limited vs The State of Bihar and R M D Chamarbaugwala vs The Union of India 1957 section C R 930 applied
Each one of the constituent elements of the offence of making publishing or circulating statements conducing to public mischief punishable under section 505 of the Indian Penal Code had reference to and a direct effect on the security of the State or public order
Hence the provisions of section 505 were clearly saved by article 192