KEDAR NATH SINGH VS STATE OF BIHAR ON 20 JANUARY, 1962

This Case law is written by YAKASIRI UMA MAHESWARI, (B.A.LL.B), SRI PADMAVATI MAHILA VISVAVIDYALAYAM, Tirupati, during her internship with LeDroit India.

Equivalent citations: 1962 AIR 955, 1962 SCR SUPL. (2) 769

Author: Bhuvneshwar P. Sinha

Bench: Bhuvneshwar P. Sinha, S.K. Das, A.K. Sarkar, N. Rajagopala Ayyangar, J.R. Mudholkar

Brief Facts

• Kedar Nath Singh was an eminent critic and essayist and had won a myriad of prestigious awards for his poems. Kedar Nath was arrested for giving a speech in which he criticized the Congress government and instead advocated for the Forward Communist Party.
• He was found guilty by a 1st Class Magistrate at Begusarai in the district of Monghyr, where he filed an appeal to the High Court of Judicature at Patna. Having his appeal struck down by the High Court, Kedar Nath appealed to the Supreme Court wherein a constitutional bench was constituted to hear his matter.
• This appeal was combined with other matters such as:
• An appeal regarding arrests for similar speeches made in Uttar Pradesh at the India Muslim Conference;
• An appeal regarding multiple arrests made at a Bolshevik Party Convention;
• An appeal concerning the arrest of Mr Parasnath Tripathi for delivering a speech in a village in Uttar Pradesh instigating the formation of an army to overthrow the Government.
• The matter was heard by a bench consisting of Chief Justice B.P Sinha, Justice A.K. Sarkar, Justice J.R. Mudholkar, Justice N. Rajagopala Ayyangar and Justice S.K. Das.

Issues

• 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.
• R. C. Prasad, for respondent in Criminal Appeal No. 169 of 1957, Referred to the decision in Ramji Lal Modi v. State of U. P. [1957] S.C.R.860. Stated that he would adopt the submissions to be made by Shri C. B. Agarwala.
• The Judgment of the court was delivered by 775 SINHA, C. J.-In these appeals the main question in controversy is whether ss. 124A and 505 of the Indian Penal Code have become void in view of the provisions of Art. 19(1)(a) of the Constitution. The constitutionality of the provisions of s. 124A, which was mainly canvassed before us, is common to all the appeals, the facts of which may shortly be stated separately.
• After recording a substantial volume of oral evidence, the learned Trial Magistrate convicted the accused person both under ss. 124A and 505(b) of the Indian Penal Code, and sentenced him to undergo with rigorous imprisonment for one year. No separate sentence was passed in respect of the conviction under the latter section.
• Whether Sections 124A and 505 of the Indian Penal Code are ultra vires in view of Article 19(1)(a) read with Article 19(2) of the Constitution?
• Whether the intention or tendency to create disorder, or disturbance of law and order, or incitement to violence is required to constitute the offence of sedition?

Arguments of the Appellant

• Janardan Sharma, counsel for the Appellant, argued that Section 124A of the Indian Penal Code was ultra vires of the Constitution as it infringes Article 19(1)(a). He contended that sedition acted as an efficacious tool to prosecute those making permissible or impermissible speeches.
• He argued for the absolute right of any citizen in a democratic nation to criticise the Government in a bid for change.
• C.B. Agarwala interpreted crucial jurisprudence laid down by courts in earlier cases. He contended that the view of the Federal Court in Niharendu Dutt’s case was what was prevailing in India at the time and not the view of the Privy Council in Bhalerao’s case.
• He raised the need to draw parallels between English Law and Indian law as the wording of the English law of sedition is similar.
• In England, however, the offence of sedition must have the necessary mens rea to disturb public peace, the same goes for the Canadian Criminal Law.
• He argued that the case of Niharendu Dutt Majumdar adopted the correct position of law, and the jurisprudence set down in the case should also be used in the case at hand.

Arguments of the Respondent

• Gopal Behari, the counsel for Respondent, argued that the interpretation adopted in English law does not necessarily include an intention to disturb public order.
• According to him, the interpretation of the Privy Council had been accepted by many High Courts and as such that interpretation should be adopted in this case.
• He agreed that any prosecution done under Section 124A for any speech that does not induce public disorder is violative of Article 19(1)(a) and these cases do not come under the purview of 19(2) as placing restrictions on these speeches is not in the interest of public order.
• He contended that the court could not rewrite the section by removing from its purview those speeches that have no intent to disturb public order; either the Section passes or fails wholly.

Judgement

• On January 20 1962, the judgement was pronounced by the then Chief Justice of India B.P. Sinha.
• Before delving into the arguments of the appellant and respondent, the court explained the history of sedition law.

The judicial history of the law will be discussed below.

• The S.C. noted the explanation of the law of sedition by the Chief Justice to the jury in the case of Queen-Empress vs. Jagendra Chunder Bose (1891).
• The S.C. also noted the explanation of the law of sedition by the judge to the jury in the celebrated case of Queen-Empress vs. Bal Gangandhar Tilak (1916).
• Bal Gangandhar after being convicted by the High Court, appealed to the Privy Council and the case was heard by a full bench.
• The views of the Privy Council have also been mentioned in the judgement.
• The case of Queen Empress vs. Amba Prasad (1897) was also mentioned as the case laid down clarifications on the word disaffection. In the referred case, sedition was used in a special sense as meaning political alienation or discontent or disloyalty to the Government or existing authority. It was also held in this case that the word disaffection, does not mean mere absence or negation of love or goodwill but a feeling of hatred and discontent against the Government to weaken the bond of allegiance.

The Supreme Court stated that no cases with direct correlation to the subject matter to the case at hand had been decided previously.

1. There were only two cases that involved consideration of the fundamental right of freedom of speech and expression, and the restrictions imposed upon these rights, these were Romesh Thoppar vs. the State of Madras and the case of Brij Bhushan vs. The State of Delhi (1950).
2. In the Romesh Thoppar case, the court declared that the Madras Maintenance and Public Order Act, which authorised the imposition of restrictions on the fundamental freedom of speech and expression was in violation of Article 19(2) of the Constitution and subsequently, it was struck down.
3. In the Brij Bhushan case, Section 7(1)(c) of the East Punjab Public Safety Act was struck down as unconstitutional as the restrictions of freedom of speech were exist in excess of Article 19(2) of the Constitution. The tacit difference between the ‘security of the state’ and ‘public order’, which was laid down in the Romesh Thapar case was also mentioned.
4. Another case that sheds light on the ambit of the legislature to impose reasonable restrictions on the exercise of the fundamental right of freedom of speech and expression is the case of Ramji Lal Modi vs. The State of U.P. (1957).
5. This case dealt with the constitutional validity of Section 295A of the IPC and the limits of the restrictions on the fundamental right to freedom of speech and expression.
6. The impugned section contains the words ‘in the interests of’ and not ‘for the maintenance of’.
7. This wording makes the scope of this Section extremely wide. This case showcased the authority of the legislature to impose reasonable restrictions on exercising the fundamental right of freedom of speech and expression.
8. The case at hand deals with the constitutionality of Section 124 by analysing its abidance with Clause 2 of Article 19, with due regard to reference to the security of the state and public order.
9. The court drew a fine line between disloyalty to the government and strongly worded criticism of governmental actions.
10. The court observed that the only contention brought before it was whether strongly worded criticism would come under the ambit of this section, and it was held that this would be outside the scope of this section.
11. The court proclaimed that it, as the custodian and guarantor of fundamental rights, has the duty to strike down any law that would jeopardise the freedom of speech and expression.
12. However, the freedom of speech has the ability to become a tool for the vilification and condemnation of the government which in turn has the possibility of creating public disorder.
13. The court recognized its duty to demarcate the fine line between a citizen’s fundamental rights and the power of legislation to impose restrictions on that right in the interest of public order.
14. The case of R.M.D. Chamarbaugwala vs. The Union of India (1957) was cited as this was a case in which many prior decisions of the Supreme Court regarding the interpretation of statutes were analysed. It is pertinent in this case as it was held that, if any provision of an impugned provision is unconstitutional through one interpretation and it is constitutional through another, the courts will take the latter interpretation and constrict the application accordingly.
15. The same ratio decidendi of that case was to be applied to the case at hand. The court recognised the tacit restrictions on freedom of speech that the impugned section imposes and goes on to explain that this restriction is in line with Article 19(2).
16. The court further declared that this restriction was in place explicitly to safeguard the public interest. The appeal was ultimately dismissed by the court.

Analysis of judgement in Kedar Nath Singh vs. State of Bihar (1962)

• The decision of the Kedar Nath case unequivocally brought into light one of the cardinal flaws in the enforcement of fundamental rights in India. The restriction imposed by the Section finds its roots in an alien government, and it is commonly accepted that laws have to be applied only to scenarios where the socio-economic paradigm befits that law.
• The constitutionality of the colonial era laws had to be decided by the judiciary in a psychologically different and entirely changed society.
• Keeping apart the purely legal arguments against the decision of the Supreme Court, this decision should be considered an anachronism in view of the democratic system that our forefathers strived for.
• This section, if not for the most quixotic interpretation that the Supreme Court has followed, reeks of authoritarianism, this can be attributed to the history of the impugned section as in the past it was enacted with a definite intent to create an authority hegemony.
• The Indian diaspora as a whole concurs that this Section should either be repealed or amended. It is the need of the hour for the judicial system in our nation to uphold the interests of the citizens of India, especially if it is a law that affects one of the very fundamentals that our nation is built on.

Principle of reasonable restrictions

• As of late the Supreme Court has made a valiant effort to promote public safety while also protecting individual rights.
• In the case at hand, the Supreme Court gave precedence to the sovereignty and integrity of the nation rather than individual freedom.
• This decision has its merits and its drawbacks and it is most important to analyse them from an unbiased standpoint.

Conclusion

• In this case, we are directly concerned with the question how for the offence, as defined in s. 124A of the Indian Penal Code, is consistent with the fundamental right guaranteed by Art. 19 (1)(a) of the Constitution, which is in these terms:
• “Art. 19(1) All citizens shall have the right.
• 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:
• “Art. 19(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 contended before us on behalf of the appellant in C.A. 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.