According to section 124A of Indian penal code, Whoever by words, either spoken or written, or by signs, or by visible representation, or otherwise, brings or attempts to bring into hatred or contempt, or excites or attempts to excite disaffection towards, the Government established by law in India, a shall be punished with imprisonment for life, to which fine may be added, or with imprisonment which may extend to three years, to which fine may be added, or with fine.
The offence means that the intention is to bring disaffection includes disloyalty and all feelings of enmity against the Government of India.
Abetting the war is a special type of offence. The main purpose of such instigation should be necessarily waging of war. Comments expressing disapprobation of the measures of the Government with a view to obtain their alteration by lawful means, without exciting or attempting to excite hatred, contempt, or disaffection, do not constitute an offence under this section. In Navjot Sandhu’s case, the appellant was a part of the criminal conspiracy and was deemed to have abetted the offence. He took an active part in a series of steps taken for the purpose of the conspiracy. Therefore, the judgement given by the High Court was upheld and the appellant was convicted under Section 121 of IPC.
In a case under Section 121 of IPC if the charge doesn’t set out the speeches to be seditious, then this doesn’t spoil or affect the proceedings. Thus, it can be concluded that there is a difference between sedition and abetting war.
Sanskar Marathe vs The State of Maharashtra and Anr on 17 March 2015
Assem Trivedi, a political cartoonist and social activist, through his cartoons, not only defamed Parliament, the Constitution of India and the Ashok Emblem but also tried to spread hatred and disrespect against the Government and published the said cartoons on `India Against Corruption” website, which not only amounts to insult under the National Emblems Act but also amounts to serious act of sedition. After the arrest of Assem Trivedi on 9 September 2012, he was produced before the learned Metropolitan Magistrate. The petitioner alleged that Assem Trivedi refused to make an application for bail till the charges of sedition were dropped. Struggling that publication and/or posting such political cartoons on website can by no stretch of imagination attract a serious charge of sedition
On 10 January 2012, Bandra-Kurla Complex Police Station received a written complaint from Amit Katarnavare asking the Police to register an FIR, inter alia, under Sections 124A, 153-A, 120-B, 167 and 109 of Indian Penal Code. For opinion, the Assistant Director, Public Prosecution, Brihanmumbai vide his opinion dated 10 January 2012 advised to invoke Section 124A of the IPC and provisions of State Emblem of India Act, 2005. On 30 January 2012, Bandra-Kurla Complex Police Station registered an FIR under Section 66-A of Information Technology Act based on statement of Amit Katarnavare, which was recorded on 30 December 2011.
After, Bandra-Kurla Police obtained opinion of the then Advocate General with regard to invocation of Section 124A of IPC to the facts of present case, amongst other queries. It was decided to drop invocation of Section 124A of IPC. The Police Department, however, took a view that as far as application of Section 2 of Prevention of Insult to National Honour Act, 1971 and Section 66(A) of Information Technology Act is concerned, the same will apply only to three out of seven cartoons, which will be dealt with in accordance with law.
In view of the above developments, the controversy about invocation of Section 124A of IPC would not survive any longer in the facts of the present case. However, learned counsel for petitioner submitted that since the Police had 5 / 21 Cri PIL 3-2015 arbitrarily invoked the serious charge of sedition under Section 124A of IPC in a matter where the cartoonist was entitled to exercise his fundamental right to the freedom of speech and expression under Article 19(1)(a) of the Constitution of India, this Court may examine the legal position so that such invocation is not resorted to, in future, in an arbitrary and irresponsible manner. We, therefore, heard the learned counsel for PIL petitioner, learned Advocate General for the State and learned counsel for third respondent Mr. Aseem Trivedi.
State Government in Home Department will issue the following guidelines in the form of a Circular to all the Police personnel:
(1) In view of the felt need to issue certain guidelines to be followed by Police while invoking Section 124A IPC, the following pre-conditions must be kept in mind whilst applying the same:
(i) The words, signs or representations must bring the Government (Central or State) into hatred or contempt or must cause or attempt to cause disaffection, enmity or disloyalty to the Government and the words/signs/ representation must also be an incitement to violence or must be intended or tend to create public disorder or a reasonable apprehension of public disorder.
(ii) Words, signs or representations against politicians or public servants by themselves do not fall in this category unless the words/signs/representations show them as representative of the Government.
(iii) Comments expressing disapproval or criticism of the Government with a view to obtaining a change of government by lawful 19 / 21 Cri.PIL 3-2015 means without any of the above are not seditious under Section 124A.
(iv) Obscenity or vulgarity by itself should not be considered as a factor or consideration for deciding whether a case falls within the purview of Section 124A of IPC, for they are covered under other sections of law.
(v) A legal opinion in writing which gives reasons addressing the aforesaid must be obtained from Law Officer of the District followed within two weeks by a legal opinion in writing from Public Prosecutor of the State.
2.(i) All Unit Commanders are directed to follow above instructions scrupulously.
(ii) It must also be kept in mind that the instructions mentioned above are not exhaustive and other relevant factors depending on case to case may also be kept in mind while applying Section 124A of the IPC.
Cartoons or caricatures are visual representations, words or signs which are supposed to have an element of wit, humour, or sarcasm. Having seen the seven cartoons in question drawn by the third respondent, it is difficult to find any element of wit or humour or sarcasm. The cartoons displayed at a meeting held on 27 November 2011 in Mumbai, as a part of movement launched by Anna Hazare against corruption in India, were full of anger and disgust against corruption prevailing in the political system and had no element of wit or humour or sarcasm. But for that reason, the freedom of speech and expression available to the third respondent to express his indignation against corruption in the political system in strong terms or visual representations could not have been encroached upon when there is no allegation of incitement to violence or the tendency or the intention to create public disorder. [1]
[1] https://indiankanoon.org/doc/57916643/
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