M.C. Desai, J.

1. This is an appeal from a judgment of the Sessions Judge, Basti, convicting the appellant under Section 124-A I. P. C., and sentencing him to imprisonment for three years. On 29-5-1954, he delivered a speech to an audience of about 200 persons, mostly villagers. The gist of his speech was this : Mothers and sisters were obliged to sell their honour in order to support themselves. Labourers were obliged to beg. Thousands of cultivators and labourers were famishing for want of food. School fees and railway fares were increased two-times and four-times so that cultivators may not remain happy, In the Congress regime thousands of Sitas were being abducted and women were turning into prostitutes for the sake of food and clothing. Taxes were being imposed on deaths and births. Cultivators and labourers blood was being sucked through foreign capitalists. Labourers of U. P. had now organized themselves. Now they will not beg for pity but will take up cudgels and surround the ministry and warn it that if it did not concede their demands it would be overthrown.

If it was thought desirable that cultivators and labourers should rule the country, every young person must learn the use of swords, guns, pistols, batons and spirit bottles, because without a fight the present Government would not surrender. Governments have not been overthrown without the use of batons. Cultivators and labourers should form associations and raise an army.

If they wanted a Government like the Chinese Government, they should raise an army of volunteers and train them in the use of guns and pistols. Taimurlung, Aurangzeb, Sher Shah and other tyrants did not divide the country but Jawaharlal Nehru turned out to be such a big traitor that he divided the country into two parts.

2. The appellant admitted having made the speech but denied some of the words. He also challenged the constitutionality of Section 124-A I. P. C., pleading that its provisions have become void under Article 13 of the Constitution. The learned Sessions Judge found that the speech was made by the appellant and that Section 124-A imposes reasonable restrictions on the freedom of speech in the interests of public order and security of the State. Accordingly he convicted the appellant,

3. The connected Government Appeal. No. 498 of 1955 is by the State from an order of an Additional Sessions Judge acquitting the respondent, Ishaq Ilmi, of the offence of Section 153(A) I. P. C.; the questions that arise in it are whether the speech, made by the respondent comes within the purview of Section 153(A) and whether Section 153(A) has become void under Article 13. The connected Appeal No. 76 of 1955 is by Ishaq Ilmi from the same judgment of the Additional Sessions Judge convicting him for the offence of Section 124-A; one of his contentions is that Section 124-A has become void under Article 13.

The connected revision No. 564 of 1955 is by the State for enhancement of the sentence imposed upon Ishaq Ilmi for the offence of Section 124-A. The connected Criminal Misc. No. 2371 of 1956 is an application by Paras Nath Tripathi, who has been arrested for the offence of Section 124-A for a writ of habeas corpus and a writ of certiorari to quash the proceedings against him on the ground that Section 124-A has become void.

4. The effect of the provisions of Articles 13 and 19(1)(a) and (2) is that all the laws in force on 25-1-1950, which were inconsistent with the freedom of speech and expression are void, except those which imposed reasonable restrictions on the exercise of the freedom in the interests of the security of the State, public order etc. Section 124-A I. P. C., punishes any person who by words, spoken or written, brings or attempts to bring into hatred or contempt, or excites or attempts to excite disaffection towards the Government established by law.

Disaffection includes disloyalty and all feelings of enmity, vide Explanation 1, Explanation 2 lays down that 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 the Section. Similarly Explanation 3 lays down that comments expressing disapprobation of the administrative or other action of the Government, without exciting or attempting to excite hatred etc., do not constitute an offence.

5. The learned Advocate-General contended that Article 19(2) provides that the operation of existing laws was not affected by the provisions of Article 19(1) and that the words "in so far as such law imposes reasonable restrictions etc.," govern not the "existing law" but the law to be made in future. Article 19(2) as originally enacted, laid down that the provisions of Article 19(1)(a) shall not "affect the operation of any existing law in so far as it relates to or prevent the State from making any law relating to, .... or any matter ..... which undermines the security of, or tends to overthrow, the State."

The existing law and the future law both had to relate to certain matters in order that their operation might not be affected by Article 19(1)(a). But in the amended provision there are no words like "in so far as such law imposes reasonable restrictions etc.," along with the words "any existing law."

In Sub-articles (3), (4), (5) and (6) also the words "any existing law" are followed immediately by the words "in so far as it imposes." The language of the original Sub-article (2) was similar to that of Sub-articles (3) (4), (5) and (6); it was altered when Sub-article (2) was amended. Sub-article (2) differs not only from that of the original sub-article but also from that of the other sub-articles.

I am satisfied that this alteration in the language does not mean that the words "any existing law are not to be governed by the words "in so far as such law imposes." According to the construction of the sentence and the punctuations the words "in so far as such law imposes govern not only the immediately preceding words "prevent the State from making any law" but also the earlier words "any existing law,"

When Sub-article (2) was amended, its language also was improved and the sentence was so recast as to make the words "in so far as such law imposes applicable to both the existing law and the law to be made in future. There is nothing whatsoever to indicate that the Legislature ever intended to save all existing laws regardless of whether they impose reasonable restrictions in the interests of certain objects or not.

The object behind the amendment was to enlarge the field of reasonable restrictions and not to differentiate between existing law and future law. Further there was no reason for the Legislatures distinguishing between certain existing law infringing the right mentioned in Article 19(1)(a) and other existing law infringing the other rights mentioned in Article 19(1) and saving the existing law infringing the right of Article 19(1)(a) regardless of its object and not similarly saving other existing law infringing other rights.

There is nothing to support the learned Advocate-Generals contention that the Legislature might have apprehended greater mischief from the existing law being declared void under Article 13 than from declaring future law void on the ground that it did not impose reasonable restrictions in the interests of certain objects. There is no authority whatsoever in support of the contention and I am not aware of any case in which this contention might have been advanced. The very fact that it has not been advanced so far suggests that it has no merits.

I have no doubt that existing law in order to be valid must impose reasonable restrictions referred to in Sub-article (2).

6. The learned Advocate-General vehemently contended that Section 124-A which is an existing law within the meaning of Sub-article (2), imposes reasonable restrictions on the exercise of the right to freedom of speech and expression in the interests of public order. It is not in dispute that Section 124-A by imposing a punishment or uttering or writing certain words imposes restrictions on the exercise of the right to freedom of speech and expression.

The right guaranteed by Sub-article (1) is an absolute right, as pointed out by me in Dr. Ram-Manohar Lohia v. Supdt Central Prison, Fatehgarh : AIR1955All193 . The first question that arises is whether the restrictions are in the interests of public order and if it is answered in the affirmative, the next question that would arise is whether they are reasonable. The phrase "public order" has not been delined in the Constitution, but it is of wide import. In Romesh Thappar v. State of Madras : 1950CriLJ1514 , Patanjali Sastri, J. said at p. 598 (of SCR) : (at p. 327 of AIR) .

"Now public order is an expression of wide connotation and signifies that state of tranquillity which prevails among the members of a political society as a result of the internal regulations enforced by the Government which they have established. The meaning given to the phrase in the Murrays Dictionary, and which I adopt, is "absence of insurrection, riot, turbulence, unruliness or crimes of violence.

7. Any reasonable restriction can be imposed on the right to freedom of speech and expression in the interests of public order i.e., for the purpose of maintaining public order, or in order that public order may be maintained, or in order to prevent disorder or an apprehension of disorder.

In the case of Ram Manohar Lohia (A), I said that the words "in the interests of public order" mean "for maintenance of public order." Das C. J. drew a distinction between "in the interests of" and "for maintenance of in Ramjilal Modi v. State of U. P. : 1957CriLJ1006 and observed that the words "in the Interests of" make the ambit of the protection very wide and that a law though not designed to maintain public order directly might have been enacted in the interests of public order; (see page 775) (of All LJ) : (at page 622 of AIR). Proceeding further he observed that the expression "in the interests of public order" is much wider than "for maintenance of public order" and that a law penalising activities having a tendency to cause public disorder imposes a restriction in the interests of public order although in some cases the activities may not actually lead to a breach of public order. The interests of public order He only in its being maintained.

Any restriction that helps to maintain public order or prevents an apprehension of public disorder is in the interests of public order. A restriction that has nothing to do with the maintenance of public order, i. e one that does not help the maintenance of public order or does not avert E, threat to public order cannot be said to be in the interests of public order.

The words "in the interests of are wider than "for maintenance of only in this sense that they include anything that even indirectly helps the maintenance of public order. If by "for maintenance of one understands anything that helps directly or indirectly or remotely the maintenance of public order, as I did in the case of Ram Manohar Lohia (A), there is hardly any distinction between "in the interests of public order" and "for maintenance of public order."

If a speech has a tendency to cause public disorder, a restriction on it by removing the threat of public disorder can be said to be a restriction for maintenance of public order. It is not correct to say that the exercise of the right to freedom of speech which can be restricted under Sub-article (2) is only that which must lead to public disorder if not restricted. Nobody can be so sure before the right is exercised. At the moment when one is considering whether the exercise of the right should be restricted, one can only go by the tendency or probability.

If it is likely to result in public disorder, it can be restricted; but this would be the result even if the words were "for maintenance of", and not "in the interest of", public order. It was contended on behalf of the appellant that a restriction imposed, not with the object of maintaining public order but, with some other object cannot be said to be in the interests of public order merely because incidentally it helps in maintenance of public order; I do not think that such a widely expressed proposition can be accepted.

If a restriction helps to maintain public order, it is in the interests of public order even though the Legislature had another object in view. There is no justification for prefixing the word "exclusively" or "solely" to the words "in the interests of.

A restriction otherwise in the interests of public order does not cease to be so merely because it serves other interests also. A good act does not become bad because of some other good effect produced by it. The argument about the maintenance of public order being the sole object probably draws its inspiration from the following words of Patanjali Sastry J., in the case of Romesh Thappar (B), at page 602 (of SCR): (at p. 129 of AIR):

"Unless a law restricting freedom of speech and expression is directed solely against the undermining of the security of the State or the overthrow of it, such law cannot fall within the reservation under Clause (2) of Article 19 although the restrictions which it seeks to impose may have been conceived generally in the interests of public order."

When the learned Judge used the word "solely", he did not at all mean to lay down that the restriction should not serve any purpose in addition to that of preventing the undermining of the security of the State or its overthrow.

What he meant to lay down is that it must have been enacted with the object of preventing the undermining of the security of the State and not merry with the object of maintaining public order. (In order to avoid confusion I should make it clear that according to the law in force at the time of decision of Romesh Thapars case (B), a restriction imposed for maintenance of public order was not recognized as valid at all.) Another argument advanced by Sri Gopal Bihari that there must be a proximate connection between the restriction and the maintenance of public order also is devoid of force.

It is not necessary that maintenance of public order is the direct consequence or result of the restriction; it is enough if the restriction indirectly helps to maintain public order. So long as the interests of public order are served, it is immaterial whether they are served directly or indirectly and any reasonable restriction would be valid.

A restriction on the right to freedom of speech in the interests of public order does not mean a restriction on the right to only a speech advocating public disorder or disturbance of public peace; a restriction on the right to any other speech, which does not advocate public disorder or disturbance of public peace but may impel or induce a hearer to commit public disorder, would also be a restriction in the interests of public order.

If a speech contains a tendency to incite a hearer to disturb public order, a reasonable restriction imposed upon the right to make it is certainly in the interests of public order; this was made clear in the case of Ramjilal Modi (C).

8. Under Section 124-A the mere exciting, of attempting to excite, a feeling of hatred, contempt or disaffection towards the Government is made punishable. In the case of an attempt to excite such a feeling, there cannot arise the question of the consequence of such feeling being excited, but even when such a feeling is actually excited, the offence is complete even though the person in whom the feeling is excited does no act under its influence.

No act to be done by the hearer, in whom the feeling is excited, is an ingredient of the offence. The offence is completed as soon as the feeling is excited; the hearer has not to disturb public order or do any other act before the offence can be said to be completed. This is the plain interpretation of the language used in the Section and is supported by the highest authorities. In Queen Empress v. Bal Gangadhar Tilak ILR 22 Bom 112; Strachey J. observed at p. 135:

"The offence consists in exciting or attempting to excite in others certain bad feelings 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 these articles, is absolutely immaterial. If the accused intended by the articles to excite rebellion or disturbance, his act would doubtlesss fall within Section 124-A." Under the Defence of India Act, doing a prejudicial act was made punishable and an act intended or likely "to bring into hatred or contempt, or to excite disaffection towards His Majesty or the Government established by law in British India" was defined to be a prejudicial act. The language of Section 124-A was exactly reproduced in the definition of the "prejudicial act."

It came in for interpretation before the Federal Court in Niharendu v. Emperor AIR 1942 FC 22. It was pointed out by Gwyer, C. J., that it was adopted from English law. He referred to the statements of Fitzgerald, T. in R. v. Sullivan (1868) 11 CCC 44 to the effect that

"the very tendency of sedition is to incite the people to insurrection and rebellion "and that" the law considers as sedition all those practices which have for their object to excite discontent or disaffection, to create public disturbance, or to lead to civil war, to bring into hatred or contempt the sovereign or Government, the laws or the constitution of the realm and generally all endeavours to promote public disorder"

and said with reference to the offence of sedition as follows :

"This is nor made an offence in order to minister to the wounded vanity of Governments, but because where Government and the law ceased 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 that is their intention or tendency." (p.26)

This interpretation was overruled by the Judicial Committee of the Privy Council in Emperor v. Sadashiv Narayan Lord Thankerton explained the provisions of Section 124-A in the following words at p. 84 :

"The word sedition does not occur -- either in Section 124-A or in the Rule; it is only found as a marginal note to Section 124-A and is not an operative part of the Section, but merely provides the name by which the crime defined in the Section will be known. There can be no justification for restricting the contents of the Section by the marginal note .... .....

"Their Lordships are unable to find anything in the language of either Section 124-A or the Rule which could suggest that the acts or words complained of must either incite to disorder or must be such as to satisfy reasonable men that that is their intention or tendency. Explanation 1 to Section 124-A provides, "The expression disaffection includes disloyalty and all feelings of enmity." This is quite inconsistent with any suggestion that excites or attempts to excite disaffection involves not only excitation of feelings of disaffection, but also exciting disorder."

His Lordship approved of the above-quoted observation of Strachey, J. in Tilaks case (D). The interpretation was referred to by the Supreme Court in the case of Romesh Thappar (B) and was accepted as correct.

It was criticised by Das, J. in Debi Soren v. The State as unduly literal and verbal" and as not giving full effect to the Section and to the three explanations appended to Section 124-A in the context of freedom of speech and expression now guaranteed under the Constitution, I respectfully dissent from Das, J.

The Constitution was not in force in 1947 and there was no question of the Judicial Committees interpreting the Section in the context of the freedom of speech guaranteed under Article 19. Their Lordships did consider the effect of the addition of explanations 2 and 3 and expressly said that it did not affect or alter the interpretation placed by Strachey J., in Tilaks case (D). The freedom of speech and expression guaranteed under the Constitution does not justify importing words in Section 124-A and the construction that an incitement to public disorder is a necessary ingredient of the offence made punishable by it. Section 124-A was added in the Penal Code in 1870 and was amended in 1898. The reason given by Stephen for the addition was ;

"The law relating to riots and unlawful assemblies is very full and elaborate, but it is remarkable that the Penal Code contained no provision at all as to seditious offences not involving an absolute breach of the peace. It says nothing of seditious words, seditious libels, seditious conspiracies or secret societies. The additions made in 1870 provide to a certain extent for the punishment of such offences." Comparative Criminal Jurisprudence. Vol. I, p. 52, by Phillips."

9. Explanations 2 and 3 are not easy to understand. If a speech does not excite or attempt to excite a feeling of hatred, contempt or disaffection, it is not made punishable under Section 124-A at all. Therefore, even without the explanations, comments expressing disapprobation of the measures of the Government or of the administrative or other action of the Government, without exciting or attempting to excite hatred etc., would not be punishable.

The language of the explanations has been borrowed from the English law, but torn from its context. The Privy Council had some difficulty in finding the meaning of the explanations, vide the case of Annie Besant v. Advocate General, Madras AIR 1919 PC 31 : ILR Mad 146 [LQ/MadHC/1955/30] . They, if at all, make it clear that the mere exciting of a feeling of hatred etc. is enough and that no particular intention behind the act is required.

10. In the English law there is no offence of sedition but there are offences of seditious libel, seditious words and seditious conspiracy. Seditious libel consists of speaking words with a seditious intention.

"A seditious intention is an intention to bring into hatred or contempt, or to excite disaffection against the person of, His Majesty, his heirs or successors, or the Government and Constitution of the United Kingdom, as by law established, or either House of Parliament, or the administration of justice, or to excite His Majestys subjects to attempt otherwise than by lawful means, the alteration of any matter in Church or State by law established, or to incite any person to commit any crime in disturbance of the peace, or to raise discontent or disaffection amongst His Majestys subjects, or to promote feelings of ill-will and hostility between different classes of such subjects"; see Stephens Digest of the Criminal Law, Ninth Edition, page 92. Inciting any person to commit any crime in disturbance of the peace being separately included in the definition of "seditious intention"., it follows that an intention to excite a feeling of hatred, contempt or disaffection towards the Government does not necessarily involve an intention to incite any person to disturb the public peace.

It is stated by Stephen in his History of the Criminal Law of England, Page 298, that the offences of seditious words, seditious libels and seditious conspiracy are not necessarily accompanied by, or lead to, open violence and that they consist in the display of dissatisfaction with the existing Government. Russell writes in his Treatise on Crime, Tenth Edition, Volume I, that although one has a right to discuss any grievances he has to complain of, he must not do so in a way to excite tumult and that if his utterance goes beyond containing no more than a calm and quiet discussion, allowing something for a little feeling in his mind, it is p seditious libel.

On page 145 he refers to certain decisions according to which it is seditious to publish any matter tending to possess the people with an ill opinion of the Government, and criticises the decision in R. v. Tucbin (1704) 14 STC 1095 SC as inconsistent with liberty of public political opinion, if taken literally. Dicey says in his Law of the Constitution, Ninth Edition, at page 244:--

"Any one will see at once that the legal definition of a seditious libel might easily be so used as to check a great deal of what is ordinarily considered allowable discussion, and would if rigidly enforced be inconsistent with prevailing forms of political agitation."

The framers of the Penal Code have adopted the language of Stephen in Section 124-A with the result that it is as wide as in England. But a prosecution for seditious libel, through exciting or attempting to excite a feeling of hatred, contempt or disaffection, is somewhat of a rarity in England and no prosecution is undertaken unless the seditious libel is uttered with an intention to incite to violence.

Incitement to violence, though not an ingredient of the offence of seditious libel consisting of exciting, or attempting to excite, a feeling of hatred, contempt or disaffection towards the Government, is a requirement for the successful prosecution. A prosecution for seditious libel "is a weapon that is not often taken down from the armoury in which it: hangs, but it is a necessary accompaniment to every civilised Government"; see King v. Aldred (1909) 22 CCC 1. It is said by Order in his Libel and Slander, Fifth Edition, page 518, that prosecution is undertaken if there is a criminal intention to subvert the laws and constitution and to excite rebellion or disorder and that such an intention may be presumed from the natural and probable consequences; he writes at page 522 that tendency of a speech to disturb the tranquillity of the state supplies proof of the requisite criminal intention.

"Briefly, the position is that in the United Kingdom, sedition is committed by bringing into hatred and contempt, or exciting disaffection against the Government only if there is an intention to excite violence"; see the article "Freedom of the Press in the Commonwealth" by Holland in 10 Current Legal Problems, 1956. In Canada also the intention to incite people to violence against the constituted authority or to create a public disturbance or disorder is an essential ingredient of the offence of seditious libel; vide Boucher v. The King 1951 SCR 265 at pages 283-296. Section 133 of the Criminal Code of Canada defines "a seditious libel" to be a libel expressive of the seditious intention and a person is presumed to have a seditious intention if he publishes or circulates any writing in which it is advocated the use, without the authority of law, of force as a means of accomplishing any governmental change within Canada.

Section 133-A lays down that nobody shall be deemed to have a seditious intention only because he intends in good faith to point out, in order to their removal, matters which are producing or have a tendency to produce, feelings of hatred and ill-will between different classes of His Majestys subjects, or to show that His Majesty has been misled in his measures, or to point out errors and defects in the Government or Constitution of Canada, or to excite His Majestys subjects to attempt to procure by lawful means the alteration of any matter in the State.

It is obvious from these provisions that an intention to advocate the use, without the authority of law, of force is not implied in an intention to produce feelings of hatred and ill-will between different classes of His Majestys subjects, or in an intention to excite a feeling of disaffection towards the Government.

11. There are authorities laying down that the English Law regarding sedition is not in force in colonies. The colonies are governed by the Statutory laws in force in their territories and an intention to incite to violence is not an ingredient of the offence of sedition, unless it is made so by statute.

In Wallace-Johnson v. The King 1940 ACJ 231 the Judicial Committee had to construe Section 326 of the Criminal Code of the Gold Coast providing that seditious words are words expressive of seditious intention, viz. an intention "to bring into hatred or contempt or to excite disaffection against..... ....the Government of the Gold Coast as by law established". Their Lordships held that incitement to violence was not a necessary ingredient of the offence of sedition. Viscount Caldccote L. C. referred to Russell on Crime, Ninth Edition, Volume I, pp. 89-96, and observed at p. 239 :

"The present case, however, arose in the Gold Coast Colony, and the law applicable is contained in the Criminal Code of the Colony,"

At page 241 his Lordship emphasised that

"it is in the Criminal Code of the Gold Coast Colony, and not in English or Scottish cases, that the law of sedition for the Colony is to be found It must therefore be construed in its application to the facts of this case free from any glosses or interpolations derived from any expositions, however authoritative, of the law of England or of Scotland.

"......... It is quite another thing to add words which are not in the Code and are not necessary to give a plain meaning to the Section. Nowhere in the Section is there anything to support the view that incitement to violence is a necessary ingredient of the crime of sedition. Violence may well be, and no doubt often is, the result, of wild and ill-considered words, but the Code does not require proof from the words themselves of any intention to produce such a result, and their Lordships are unable to import words into Section 330 which would be necessary to support the appellants argument." Holland in his article Equality before the law," in 9 Current Legal Problems, 1955, says at p. 85 that no intention to excite violence is required in colonies, as it is required in England (though no mention of it appears in the definiton of "sedition" in Stephens Digest), unless the Criminal Code of the Colony expressly so stipulates, that no Colonial Criminal Code does in fact expressly do so, and that this makes a vital difference to freedom to criticise the Government. The learned author writes at p. 87 :

"One may comment that the privilege of pointing out errors and defects must often be illusory if the intention to excite violence need not be proved, since the dispassionate pointing out of errors may well excite hatred and contempt against those responsible for them. And the more grievous the error or defect, the more likely it is that hatred and contempt will be excited."

This observation supports the view that every exciting of a feeling of hatred, contempt or disaffection towards the Government does not carry a threat to public violence or disorder.

12. In Brij Bhushan v. State of Delhi : 1950CriLJ1525 Fazl Ali, J. observed at p. 616 (of SCR) : (at p. 132 of AIR) that sedition undermines the security of the State usually through the medium of public disorder, with which it is always connected, and that it is essentially an offence against the public tranquillity inasmuch as though not accompanied by violence it tends to cause it.

This view of the offence of sedition was not accepted by the majority. Moreover, Fazl Ali, J. did not criticise, or differ from the interpretation placed by the Judicial Committee in the case of Sadashiva (G).

13. I conclude that the offence made punishable under Section 124-A does not require an intention to incite to violence or public disorder. Not only this but it also docs not require any outbreak of violence or an apprehension of it as a consequence of the speech. The contention advanced on behalf of the State that every speech made punishable under Section 124-A involves a threat to public order must be rejected as unwarranted.

There would have been no necessity for insisting upon an intention to incite to violence, as in English law, if such a speech had an inherent tendency to incite to violence, because everybody is presumed to intend the natural and probable consequences of his act.

14. No publicity is required and even an intimate conversation, or a conversation with a person who is not at all likely to disturb public order, is punishable. A speech to the wife, or to a minor, or to paralytic person, or to a life convict, or to an alien, or to a Government servant, is punishable even though there can be no apprehension of any public disorder from the wife, the minor, the paralytic person, the life convict, the alien of the Government servant.

A person hearing a speech may begin to hate the Government, or feel disloyal towards it, or may hold it in contempt, but is not bound to disturb the public order and may refrain from doing any overt act. Whether a speech will cause disorder or not depends not only upon its nature but also upon the nature of the hearer, his opportunities and the state of the country at the time. In AIR 1919 PC 31 Lord Phillimore pointed out at p. 38 that in considering the natural result o£ the words used regard must be had, among other things, "to the character and description of that part of the public who are to be expected to read the articles."

In the case of King v. Aldred (K) Coleridge, J. stated that one is entitled to look at all the circumstances surrounding the publication with a view to seeing that the language used is calculated to produce the results imputed, that is to say one is entitled to look at the audience addressed, and to take into account the state of public feeling. In R. v. Sullivan (F) it was said that the Court should take into consideration the state of the country and of the public mind at the date of the publication. The statutory offence of sedition, however, does not take any of these facts into consideration.

15. Harbouring a feeling of hatred, contempt or disaffection towards the Government does neither necessarily nor inevitably have an effect upon public order; a hearer may have this feeling in his mind but the public would not be affected if he does not do some act which disturbs the public or the peace or tranquillity in the public.

Public order may be maintained even if one harbours such a feeling; when public order is disturbed, it is disturbed not by the mere existence of such a feeling but by an act done under its pressure. In Burns v. Ransley 1949 CLR 101 Dixon J. dealing with Section 24B of the Crimes Act 1914-1946 of Australia, which defines "seditious intention" to mean intention to excite disaffection against the Government or Constitution of the United Kingdom or of Australia or against the Sovereign, stated at page 115:

"Disaffection is a traditional expression but it is not very precise. It means an estrangement upon the part of the subject in his allegiance which has not necessarily gone as far as an overt act of a reasonable nature or an overt breach of duty".

What is true of disaffection is also true of hatred and contempt. In Ahmad Ali v. State, : AIR1951All459 V. Bhargava J., observed.

Spread of disaffection against a party Government cannot be said to be aground for inferring that the public order would not be maintained. It is the right of every citizen in a democratic Government to spread disaffection against a particular party Government. This right is, of course, subject to the condition that the disaffection should not be so spread as to result in violence and there should be really no incitement to use violence or to resort to other illegitimate course.

It is true that exciting disaffection towards the Council of Advisors of the Union or a State does not necessarily involve a threat to public order, but with great respect I find it difficult to accept the statement that it is the "right" of every individual to spread disaffection towards the Government run by a political party. The statement is directly against the law laid down by Ellenborongh C. J. in R. v. Cobbett (1804) 29 STC 1 quoted by Russcl on Crime, Tenth Edition, at p. 145, where he observed:

"It is no now doctrine that if a publication be calculated to alienate the affections of the people, by bringing the government into disesteem, whether the expedient be by ridicule or obloquy, the person so conducting himself is exposed to the inflictions of the law. It is a crime; it has ever been considered as a crime, whether wrapt in one form or another."

The right to exhibit "the folly or imbecility of the members of the government" should not be treated as a right to excite disaffection towards a Government. A person may not be liable for spreading disaffection against a particular party Government, but it is quite a different thing to say that he has got a right to do so, because non-liability for doing an act does not necessarily amount to a right to do it.

One cannot think of a right unless it is conferred expressly by some provision of law. The right to spread disaffection against the Government or any other person is included in the right to freedom of speech and expression guaranteed by the Constitution; if Article 19(1)(a) did not exist, one could not say that an Indian has a right to spread disaffection against the Government.

The whole inquiry before us is whether a restriction on the right to spread disaffection against the Government is valid or not. If it is invalid, then only a person has a right to excite disaffection against the Government and the provisions of Section 124-A punishing him for it would be unconstitutional. If the restriction is valid, it means that he lias no right. In the judgment of our learned brother there is no discussion of the provisions of Section 124-A and Article 19 of the Constitution, nor has any authority been cited in support of the observations made.

The observations were simply referred to in Mohd. Ishaq v. U. P. State : AIR1957All782 and Sarju Pande v. State, : AIR1956All589 ; they were not approved of. I do not think they are of any assistance to the appellant in the present case.

16. There are some speeches which will not cause public disorder; there are some speeches which will, there are some which are likely to, but might not, there are some which are not likely to hut might and there are some which may or may not. A restriction on a speech that will result in public disorder is undoubtedly in the interests of public order; on the other hand a restriction on a speech that will not is undoubtedly not one in the interests of public order.

A restriction on a speech that is likely to result in public disorder, or on a speech that may or not result in public disorder, must be held to be in the interests of public order. There should not only be no public disorder but also there should be no threat to public order.

If a speech contains a threat to public order, it is the duty of the State to impose a restriction upon at in order to avert the threat. It cannot be expected to accept the risk of its resulting in public disorder & to remain inactive in the hope that it will not result in public disorder. Therefore, any reasonable restriction on such a speech will be in the interests of public order. One may not be quite confident about a speech that is not likely to disturb public order, though it might, but it seems that a reasonable restriction on even such a speech cannot easily be ruled out as not in the interests of public order.

17. In Cantwell v. State of Connecticut (1940) 310 US 296: 84 LEd 1213 Roberts J. said at p. 308:

"The offence known as breach of the peace embrances a great variety of conduct destroying or menacing public order & tranquillity. It includes not only violent acts but acts and words likely to produce violence in others ....... -When clear and present clanger of riot, disorder, interference with traffic upon the public streets, or other immediate threat to Public safety, peace, or order, appears, the power of the state to prevent or punish is obvious". Similar language was used by Jackson L. in Terminiello v. City of Chicago(1949) 337 US 1: 93 Law Ed 1131 at p. 25(U). He said "rioting is a substantive evil, which I take it no one will deny that the State and the City have the right and the duty to prevent and punish" and then referred to the rule of clear and present danger.

The question of present danger does not arise in India where one does not consider the particular speech sought to be penalized but the Act under which it is penalised. The danger of public disorder must, however, be real and not fanciful and reasonable restriction imposed upon a speech giving rise to a real danger of public disorder is constitutional. A speech that is made punishable under Section 124-A includes all sorts of speeches mentioned above. Even a speech that does not give rise to any apprehension of public disorder is made punishable.

As pointed out above danger to public order is not an ingredient of the offence. Consequently the restriction imposed upon the right to freedom of speech by the Section cannot be said to be in the interests of public order. A restriction imposed on certain speeches would be in the interests of public order but not that imposed on other speeches, such as those which do not contain a threat to public order. There is nothing whatsoever in the Section to distinguish between the two classes of speeches.

18. The provisions of Section 124-A are severable but only to a limited extent. The provision imposing a penalty on exciting a feeling of hatred is severable (from the provision imposing a penalty on exciting a feeling of contempt, or from the provision imposing a penalty on exciting a feeling of disaffection. The provision imposing a penalty on attempting to excite a feeling of hatred is severable from that imposing a penalty on exciting a feeling of hatred. Any of these provisions can stand or fall without affecting the validity of the others.

19. The provision imposing a penalty on exciting a feeling of hatred may be constitutional though that on exciting a feeling of disaffection, or that on attempting to excite a feeling of hatred, not be. The provision of attempting to excite a feeling of disaffection towards the Government may be held to be unconstitutional though the other provisions are held to be constitutional. Only to this extent the provisions are severable.

The severabilily does not go any further and the provision inflicting punishment upon a speech containing a danger to public order cannot be severed from the provision inflicting punishment upon a speech containing no threat to public order. As a matter of fact there are not two provisions but one indivisible provision indicting punishment upon all speeches exciting hatred regardless of whether they contain any incitement to, or threat of, public disorder.

The language used in the Section does not permit any separation of speeches exciting hatred and containing a threat to public order from other speeches exciting hatred but not containing such a threat. Consequently, imposing restrictions upon a speech exciting a feeling of hatred may or may not be said to be in the interests of public order; if it may or may not be in the interests of public order, it is not covered by the saving clause of Sub-article (2) Article 19 which requires that it "must" be.

20. When the case of Romesh Thapper (B) was decided restrictions could be imposed on a matter undermining the security of, or tending to overthrow, the State, but restrictions were imposed for the purpose of securing the public safety and the maintenance of public order.

It was held that the restrictions were imposed for a wider purpose and were, outside the scope of permitted restrictions under Sub-article (2) and therefore, void. If the language employed in restricting statute is wide enough to cover restrictions both within and without the limits of constitutionally permissible legislative action affecting the right and consequently there is the possibility of the statute being applied for purposes not sanctioned by the Constitution, it must be held to be wholly void; see the observation of Mahajan J., in Chintaman Rao v. State of Madhya Pradesh : [1950]1SCR759 . In the case of Terminiello (U) Douglas J. had to deal with an Act which contained parts that were unconstitutional and the conviction of Terminiello for its infringement was set aside. In Cantwells case (T) Roberts J., observed at page 311 : --

"In the absence of a statute narrowly drawn to define and punish specific conduct as constituting a clear and present danger to a substantial interest of the State, the petitioners communication considered in the light of the constitutional guaranties, raised no such clear and present menace to public peace and order as to render him liable to conviction of the common law offence in question."

If the right to freedom of speech is abused by using a speech to incite to violence and crime, the people through their Legislatures may protect themselves against the abuse; "but the legislative intervention can find constitutional justification only by dealing with the abuse. The rights themselves must not be curtailed". See C. J. Hughes in De Jones v. Oregon (1936) 299 US 353. I need not say anything more besides referring to what I said in : AIR1955All193 .

21. The speech made by the appellant certainly contains an incitement to violence and public disorder; in any case, it contains a threat to public disorder. But the question is not whether the restriction on particular speech made by the appellant is in the interests of public order or not but whether the restriction imposed on any speech exciting a feeling of hatred etc. is in the interests of public order.

In the language of Douglas J. "the pinch of the statute is in its application" (Terminiello v. Chicago (U)). The law in America is different; the conduct of the accused, and not the statute, is measured against the constitution. The American Constitution contains no provision like our Article 13 making a law. infringing a constitutional guarantee automatically void.

22. As pointed out earlier Section 124-A contains several provisions that are severable from one another. What I have said above applies to each of them. Neither exciting a feeling of hatred, nor exciting a feeling of contempt, nor exciting a feeling of disaffection towards the Government, necessarily involves a threat to public order and, therefore, neither a restriction on a speech exciting a feeling of hatred, nor one on a speech exciting a feeling of contempt, nor one on a speech exciting a feeling of disaffection towards the Government, can be said to be in the interests of public order.

23. The learned Advocate-General disclaimed all intention of relying upon the restrictions imposed by Section 124-A being in the interests of the security of the State, but since the learned Deputy Government Advocate had in his earlier argument relied upon them, I may deal with the matter.

Article 12 provides that unless the context otherwise requires, "the State" includes the Government and Parliament of India and the Government and the Legislature of each of the States and all local or other authorities within the territory of India or under the control of the Government of India. The word "Government" is not defined anywhere; what is stated in Section 3(23) of the General Clauses Act is simply this that "Government" includes both the Central Government and the State Government. Articles 52 to 77 deal with the President and Vice-President, the Council of Ministers and the Attorney-General for India. Article 77 is the first article under the heading "Conduct of Government Business" and lays down that all executive action of the Government of India shall be expressed to be taken in the name of the President.

Similarly Articles 153 to 165 deal with the Governor, the Council of Ministers and the Advocate-General for a State; Article 166 is the first article under the heading "Conduct of Government Business" and provides that all executive action of the Government of a State shall be expressed to be taken in the name of the Governor. It is obvious that the word "Government" in Articles 77 and 165 means the executive machinery set up with the aid of Articles 53 to 76 and 153 to 165. The word "Government" is also used in other articles, such as 53(3) 58(2) 66(4) 73(1) 76(2) 102(1) 110(1) 112(1) etc.

In all these articles "Government" means the executive machinery of the Union and of the States. It means the President acting with the advice of the Council of Ministers and the Governors acting with the advice of their Councils of Ministers It is the system of Government or the institution consisting of the President and the Governors acting with the advice of their Councils of Ministers and not the actual persons holding the offices of the President and Governors and the Ministers advising them.

Security of the State must, therefore, mean the security of the system of Government in the Union and the States and not of the persons holding the offices of the President, the Governors and the Ministers. The system of President continues though the person holding the office may change again and again.

Similarly the system of Governor continues even though different persons hold the office one after another. The system of Council of Ministers continues even though different persons become Ministers at different times. In the case of Bal Gangadhar Tilak (D), "Government" was defined by Strachey J. as "British rule and its representatives as such -- the existing political system as distinguished from any set of administrations." In Mrs. Annie Besant v. Govt. of Madras ILR 39 Mad 1085: AIR 1918 Mad 1210 Abdur Rahim C. T. observed at page 1119 (of ILR Mad) : (at p. 1235 of AIR) : --

"Government denotes an established authority entitled and able to administer the public affairs of the country. On the other hand Govt. is not identical with any particular individuals who may be administering the Government."

He relied upon the following observations of Batty J. in Emperor v. Bhaskar, ILR 30 Bom 421 at p. 438 (Y); --

"What is contemplated under the Section is the collective body of men of the Government, defined under the Penal Code ...... It means the persons or persons collectively, in succession, who are authorised to administer the Government for the time being. One particular set of persons may be open to objection, and to assail them and to attack them and excite hatred against them is not necessarily exciting hatred against the Government because they are only individuals, and not representatives of that, abstract conception which is called Government.... ......The individual is transitory and may be separately criticised, but that which is essentially and inseparably connected with the idea of Government established by law cannot be attacked without coming within this Section."

Seshagiri Ayyar, J. at page ILR Mad 1156 : AIR ALL 1252 stated that it is the system of Government that is contemplated and not the persons who for the time being carry on the details of the administration. In the matter of an appln. of Sunder Lal ILR All 233 : A Full Bench of this Court understood the phrase "Government established by law in British India" to mean "the established authority which governs the country and administers its public affairs and includes the representatives to whom the task of Government is entrusted,"

This meaning was given to the phrase in connection with an article exciting disaffection towards the rulers as a corporation and not against any particular individuals. In 1949 CLR 101 at page 115 Dixon J. explained the word "Government" occurring in Section 24-B of the Crimes Act 1914-1946 of Australia as follows : --

"I take the word "Government to signify the established system of political rules, the governing powers of the country consisting of the executive and the legislature considered as an organized entity and independently of the persons of whom it consists from time to time. Any interpretation which would make the word cover the persons who happen to fill political or public offices for the time being, whether considered collectively or individually, would give the provision an application inconsistent with parliamentary and democratic institutions and with the principles of the common law, as understood in times, governing the freedom of criticism and of expression."

24. A change in the person holding the office of the President or a Governor or a Minister does not mean a change in the Government established by the law. Exciting a feeling of hatred, contempt, or disaffection towards a person holding the office of the President or a Governor or a Minister is, therefore, not exciting such a feeling towards the Government and is not punishable under Section 124-A.

In Sabir Raza v. The State, Cri App No. 1434 of 1955, D/- 11-2-1958 (All) (Zl) a speech by a person severely castigating the Chief Minister of Uttar Pradesh was held by Raghubar Dayal, J. not to amount to causing disaffection towards the Government. Our learned brother observed that disaffection towards the Government may be advocated. Exciting such a feeling towards the polity or organized form of Government established by the Constitution is punishable under the Section, but as in the c.ise of public order, it is a far cry to say that security of the State requires a restriction on exciting such a feeling.

The security of the State would be threatened only if there is a threat to the system of Government established by the Constitution; it is threatened neither by a threat to change the persons holding the offices of the President, the Governor and the Minister, nor by a mere exciting of a feeling of hatred, contempt or disaffection towards the system of Government. The Constitution itself contemplates and provides for a charge in the persons holding those offices; it has granted no perpetuity to the individuals composing the Government.

The system of Government established by the Constitution cannot be changed so long as the Constitution remains unaltered, but the Constitution can be altered and provides for its alteration. Once the Constitution is altered, the system of Government also can be changed. A threat of changing the Government after previously altering the Constitution in such a manner as to permit the new system of Government cannot amount to a threat to the security of the State.

The security of the State cannot be threatened by anything done in exercise of the powers conferred by the Constitution itself. A speech advocating a change in the system of Government cannot be said to involve a threat to the security of the State so long as the change advocated is not unconstitutional. A mere act of exciting a feeling of hatred etc., towards the Government does not necessarily involve a threat to change the Government, and in any case cannot be said to involve a threat to change the Government unconstitutionally by use of force. A restriction on a speech exciting such a feeling would be justified in the interest of the security of the State only if the speech advocates a change of the Government by violence or contains a threat of such a change,

25. Security of the State is threatened by an invasion or by a rebellion or insurrection but not by mere public disorder. So long as the object behind the public disorder is not to flout the Constitution by changing the Government in a manner not contemplated by it, the security of the State cannot be said to be threatened.

Article 352 suggests that the security of the State may be threatened not only by an external aggression but also by an internal disturbance, but what is meant by "internal disturbance is a rebellion or insurrection and not an ordinary breach of the public peace. The distinction between ordinary public disorder and a rebellion or insurrection calculated to endanger the security of the State was pointed out by Patanjali Sastry, J., in the case of : 1950CriLJ1514 . Speeches of expressions inciting to or encouraging the commission of violent crimes, such as murder, are matters which would undermine the security or the State : see State of Bihar v. Shaila Bala Devi .

26. Kamal Krishna Sircar v. Emperor : AIR1935Cal636 Arjun Arora v. Emperor : AIR1937All295 and Mainiben Liladhar v. Emperor : AIR 1933 Bom 65 [LQ/BomHC/1932/132] to which we were referred, are of no assistance in answering the question whether a restriction on a speech exciting disaffection towards the Government is in the interests of security of the State; all that was decided in those cases is that advocating a change in the form of Government does not amount to exciting a feeling of hatred, contempt or disaffection towards the existing Government.

27. I consider that exciting hatred, contempt or disaffection towards the Government may in some cases affect the security of the State as for example when a violent overthrow of the existing system of Government is advocated in the teeth of the Constitution, but not in every case and a restriction on every speech exciting such a feeling towards the Government cannot be said to be in the interests of security of the State.

Even if it be said that it is in the interests of public order or the security of the State to impose a restriction on a speech exciting a feeling of hatred etc., towards the Government, it is certainly not reasonable to impose a restriction on every such speech just because some of it may involve a threat to public order or to the security of the State.

In order to be reasonable, the restriction should have been only on a speech likely to, or having, a tendency to, disturb the public order or undermine the security of the State. I may make it clear here that the tendency to disturb the public order or undermine the security of the State may exist in a speech notwithstanding a final exhortation not to disturb the public order or to do any act against the security of the State.

If a speech contains the germs of incitement to violence, they may not be completely destroyed by a final exhortation to eschew violence. If a speech has a tendency to incite to violence and also contains an exhortation not to resort to violence, it is nothing but a speech containing two contradictory tendencies, either of which may materialise and a restriction on such a speech does not become unconstitutional merely because of the exhortation.

28. The result is that the provisions of section 124-A became void on the enforcement of the Constitution. I am supported in this view by Sabir Raza v. The State (Zl) and Tara Singh Gopi Chand v. The State . There is nothing contradictory to it in Ramji Lal v. State (CJ, A speech insulting the religion or the religious beliefs of any class of citizens of India with the deliberate and malicious intention of outraging; the religious feelings differs from a speech exciting or attempting to excite a feeling of hatred etc., towards the Government in its effect and consequence; the former may always lead to disturbance of the public order or contain an apprehension of public disorder, but the same cannot be said of the latter.

The restriction imposed by Section 295-A of the Penal Code may be in the interests of public order or the security of the State but not that imposed by Section 124-A. In Debi Sorans case (H) it was held that Section 124-A is constitutional, but with great respect to the learned Judges, I am unable to agree that public order can be affected even when there is no incitement to, or apprehension of, violence, that it is always affected whenever a feeling or hatred, or contempt, or disaffection towards the Government is excited and that the provisions of the Section should be interpreted not as in the case of Sadashiva (G) but in a narrower or restricted sense.

29. Finally I may point out that the Indian Press Commission has recommended a repeal of Section 124-A on the ground that it is unconstitutional; see the article "Freedom of the Press in the Commonwealth" by Holland in 10 Current Legal Problems, 1956, p. 204.

30. The appellants conviction must be set aside and he should be acquitted.

R.N. Gurtu, J.

31. I have read the judgment of my brother Desai and generally agree with it but would like to add my own.

32. The question which has been raised in these appeals is whether Section 124-A of the Indian penal Code is ultra vires the Constitution of India. Article 19(1)(a) of the said Constitution runs as follows:

"All citizens shall have the right ...........

(a) to freedom of speech and expression. Article 19(2) of the Constitution runs as under:

"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".

Section 124-A of the Indian Penal Code is 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 or contempt, or excites or attempts to excite disaffection towards the Government established by law in India, shall be punished with transportation 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.

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 exciting or attempting to excite hatred, contempt or disaffection, do not constitute an offence under this Section.

Explanation 3: Comments expressing disapprobation of the administrative or other action of the Government without exciting or attempting to excite hatred, contempt or disaffection, do not constitute an offence under this Section.

33. As will appear from the provisions of the Constitution of India quoted above, it guarantees "freedom of speech" subject to the rights of the State to reasonably restrict such freedom in the interest of the security of the State or of public order.

34. It is also apparent from Section 124-A Indian P. C. that that Section restricts freedom of speech,

35. The question, therefore which has to be decided in order to determine the constitutionality of Section 124-A of the said Code is whether, by that Section, the State can be said to have imposed a reasonable restriction in the interest of public security or public order

36. The first thing necessary to determine is as to what interpretation is to be given to Section 124-A of the Indian Penal Code.

37. It was not seriously disputed before us that the interpretation given by their Lordships of the Privy Council, in is the correct interpretation of Section 124-A Indian Penal Code.

In that case, their Lordships of the Privy Council rejected the interpretation given by their Lordships of the Federal Court in AIR 1942 FC 22 Their Lordships of the Privy Council in Sadasiv Narayan Bhaleraos case (G) expressed themselves as follows:

"The learned Chief Justice (meaning thereby the learned Chief Justice at the Federal Court) then proceeds to consider the meaning of sedition fin English Law, as "defined and explained by decision of the Courts, and "states the principle to be derived therefrom as follows:

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 that is their intention or tendency.

The learned Chief Justice then applied that test to the appellants speech, and found that it contained no incitement, or intention or tendency to incite, to public disorder, and the conviction was set aside. "Their Lordships are unable to accept the test laid down "by the learned Chief Justice, as applicable in India."

Then their Lordships of the Privy Council observed as follows:

"The word "sedition" does not occur either in Section 124-A or in the Rule; it is only found as a marginal note to Section 124-A, and is not an operative part of the Section but merely provides the name by which the crime defined in the Section will be known. There can be no justification for restricting the contents of the Section by the marginal note. In England there is no statutory definition of sedition; its meaning and content have been laid down in many decisions some of which are referred to by the Chief Justice, but these decisions are not relevant, when you have a statutory definition of that which is termed sedition, as we have in the present case.

Their Lordships are unable to find anything in the language of either Section 124A or the Rule which could suggest that "the acts or words complained of must either incite to disorder or must be such as to satisfy reasonable men that that is their intention or tendency. "Explanation 1 to Section 124-A provides, the expression disaffection includes disloyalty and all feelings of enmity. This is quite inconsistent with any suggestion that "excites or attempts to excite disaffection involves not only excitation of feelings of disaffection, but also exciting disorder. Their Lordships are therefore of opinion that the decision of the Federal Court in AIR 1942 FC 22 proceeded on a wrong construction of Section 124-A Penal Code, and of sub-para (e) of Rule 34(6), Defence of India Rules".

Thereafter their Lordships of the Privy Council have observed as follows:

"In ILR 22 Bom 112 and Bal Gangadhar Tilak v. Queen Empress ILR 22 Bom 528 the charge was under Section 124-A as it then stood, confined to disaffection, without any reference to hatred or contempt. Strachey J. in an admirable charge to the jury, which was subsequently approved by this Board, said (at p. 135):

"The offence consists in exciting or attempting to excite in others certain bad feelings 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 these articles, is absolutely immaterial. If the accused intended by the articles to excite rebellion or disturbance, his act would doubtless fall within Section 124-A 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 of 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".

In refusing leave to appeal, inter alia, on the ground of misdirection as to the proper construction of Section 124-A the Board expressly approved of the charge. It is sufficient for their Lordships to adopt the language of Strachey, J., as exactly expressing their view in the present case."

Then their Lordships observed as follows :

"To conclusion, their Lordships will only add that the amendment of Section 124-A in 1898, the year after Tilaks case (D), by the inclusion of hatred or contempt and the addition of explanations 2 and 3 did not affect or alter the construction of the Section laid down in Tilaks case (D) and, in their opinion, if the Federal Court, in AIR 1942 FC 22 had given their attention to Tilaks case (D), they should have recognised it as an authority on the construction of Section 124-A by which they were bound."

It will thus be seen that their Lordships of the Privy Council did not consider that incitement to disorder or the existence of an intention or tendency to disorder is the gist of the offence and they are of the view that Section 124-A of the Indian Penal Code would be attracted even if there was no incitement or intention or tendency to incite public disorder or a reasonable anticipation or likelihood of public disorder. Their Lordships have clearly approved the analysis of the Section by Strachey, J., in ILR 22 Bom 112.

38. The view of their Lordships of the Privy Council in regard to Section 124-A, Indian Penal Code stands accepted by their Lordships of the Supreme Court in : 1950CriLJ1514 their Lordships of the Supreme Court have observed as follows :

"It is also worthy of note that the word "sedition" which "occurred in Article 13(2) of the Draft Constitution prepared by the Drafting Committee was deleted before the article was finally passed as Article 19(2).

In this connection, it may be recalled that the Federal Court had, in defining sedition in Niharendu Dutt v. King Emperor (E) 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 Tilaks case (D) 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."

39. The next question is what is the meaning of the word disaffection. Section 124-A, Indian Penal Code has been fully analysed by John D. Mayne in his Criminal Law of India (III edition), p. 516. After quoting the Section, Mayne refers with obvious approval to the definition of disaffection given by Petheram C. J. in the Bangobasi Newspaper; Queen Empress v. Jogendra ILR 19 GAU 35 as meaning :

"A feeling contrary to affection, in other words, dislike or hatred. Disapprobation means simply disapproval. It is quite possible to disapprove of a mans sentiments or action and yet to like him." If a person uses either spoken or written words, calculated to create in the minds of the persons 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 hearers 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 purpose 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."

Strachey, J. in Tilaks case (D) defined Disaffection as meaning :

"Hatired, enmity, dislike, hostility, contempt, and every form of ill-will to the Government."

Strachey, J., further said that :

" Disloyalty is perhaps the best general term, comprehending everv possible form of bad feeling to the Government"

The views of Strachey, J. expressed in his summing up, I might add, were accepted by the Allahabad High Court in Queen Empress v. Amba Prasad ILR 20 All 55.

40. The position thus seems to be that if any form of bad feeling to the Government is expressed then Section 124-A Indian Penal Code would be attracted irrespective of the fact whether the expression of that bad feeling incites to disorder or whether reasonable men can be satisfied that the expression of that feeling has the intention or tendency to disorder or whether there is a likelihood in public disorder or a reasonable anticipation thereof. It is enough that there is excitation of a feeling; of disaffection and there need not be any exciting to disorder.

It would therefore, appear from a consideration of the above authorities and particularly from a reading of the Privy Council case that a tendency to disorder cannot be said to be inherent in "disaffection," that there may be disaffection which has a tendency to disorder and there may, at the same time, be disaffection within the meaning of Section 124-A of the Indian, Penal Code which has not that tendency. Therefore, it is apparent that Section 124-A also penalises; the making of speeches which are not against the interest of public order. Therefore, Section 124-A could not be said to be a reasonable restriction in the interest of public order.

As according to the view of the authorities mentioned above, disaffection does not necessarily have an inherent tendency to disorder, therefore, in making all disaffection punishable, there has undoubtedly been placed by Section 124-A a restriction on freedom of speech which is not in the interest of public order alone. The same holds for the words hatred and contempt which are covered according to the authority cited by the word disaffection.

41. In : 1957CriLJ1006 their Lordships of the Supreme Court were considering the constitutionality of S. 295A of the Indian Penal Code and were considering whether, by that Section, a reasonable restriction in the interest of public order had been placed by the Legislature on freedom of speech guaranteed by the Constitution by Sub-clause (a) of Clause (1) of Article 19. They observed as follows :

"In the first place Clause (2) of Article 19 protects a law imposing reasonable restrictions on the exercise of the right to freedom of speech and expression "in the interest of public order", which is much wider than "for maintenance of" public order. If, therefore, certain activities have a tendency to cause public disorder, a law penalising such activities as an offence cannot but be held to be a law imposing reasonable restriction in "the interest of public order" although in some cases those activities may not actually lead to a breach of public order." The above test was applied by their Lordships to Section 295A and they upheld its constitutionality. But it is to be noted that they did so because, in their view, the activities which Section 295A was intended to control had "a tendency to cause public disorder".

If therefore, such a tendency is not inherent in a particular activity then obviously no restriction could be palced by the application of CI. (2) of Article 19. There has to be a endency to cause public disorder it the activity which has been restrained before it could be said that the restriction was in the interest of public order. Their Lordships further emphasised that Section 295A of the Indian" Penal Code punished an aggravated form of insult to religion when it is perpetrated with the deliberate and malicious intention of outraging the religious feelings of that class. Their Lordships further observed that:

"The calculated tendency of this aggravated form of insult is clearly to disrupt the public order and the Section, which penalises such activities, is well within the protection of Clause (2) of Article 19 as being a law imposing reasonable restrictions on the exercise of the right to freedom of speech and expression guaranteed by Article 19(1)(A)" it will be thus seen that Section 295A was upheld because there was in the activity which it sought to prevent "a calculated tendency to disrupt public order."

42. Therefore, in order to justify a restriction on freedom of speech imposed under the purported authority of Article 19(2) of the Constitution, there must be in the activity a tendency to cause public disorder, if not a calculated tendency.

43. In view of the fact that it is not considered that a tendency to disorder, much less a calculated tendency, inheres in all utterances creating a disaffection against the Government and in view of the fact that even the mildest form of disaffection could be caught by Section 124-A of the Indian Penal Code, it would appear that the restrictions which that Section imposes are far too wide and cannot be justified as being solely "in the interest of public order".

Disorder or a tendency to disorder is not to be proved in order to secure a conviction under Section 124-A. Therefore, these are not the ingredients of the offence, nor does Section 124-A deal mainly with an aggravated form of disaffection, for even the mildest variety of hatred, contempt or disaffection would be caught by that Section. In view of the analysis of the Section by high authority it cannot be said that in all disaffection there is a tendency to disorder.

44. Even though Article 19(2) of the Constitution does not use the words "for maintenance of the p ublic order" and uses the words "in the interest of e public order", the restriction must have some nexus with public, disorder. Unless it could be stated that the mildest expression of disloyalty had within it the tendency to bring about either immediately or in the near future disorder, Section 124-A must be held to go far beyond the limits of restraint permitted by the Constitution.

45. In the constitutionality of Section 24 (a) of the East Punjab Public Safety Act (V of 1949) was considered by a Bencli consisting of Weston C. J. and Khosla J. That Section makes punishable the making of any speech if such speech (i) causes or is likely to cause fear or alarm to the public or to any Section of the public and (ii) furthers or is likely to further any activity prejudicial to the public safety or maintenance of public order.

In view of the language of Article 19(2) of the Constitution which then only permitted imposition of reasonable restrictions to prevent the undermining of the security of the State or prevent its being overthrown, Section 24 (a) of the East Punjab Public Safety Act was held to be unconstitutional and void. In the course of their judgment, their Lordships referred to Sections 124-A of the Indian Penal Code and held it to be void for they said that in some instances at least the unsuccessful attempt will not undermine or tend to overthrow the State.

They said that it was enough if one instance appears of the possible application of the Section to curtailment of the freedom of speech and expression in a manner not permitted by the Constitution. In the same way, it could be said that there would be many acts of disaffection which would not tend to cause public disorder or would not have a calculated tendency to cause public disorder, and yet be caught by Section 124-A of the Indian Penal Code. Inasmuch as Section 124-A could cover both kinds of disaffection it is clear that the Section imposes restrictions which are not justified by Article 19(2) of the Constitution.

46. So long as one accepts the interpretation put upon Section 124-A of the Indian Penal Code by their Lordships of the Privy Council and by the authorities referred to above, there is, in my view, no escape from the position that there may be excitement of disaffection without there being a tendency in such disaffection to bring about disorder:

47. In the Division Bench case of Das, J. seemed inclined to throw overboard the interpretation given to Section 124-A by the Privy Council. He observed as follows :

"I do not wish to pursue this question any further as my view is that even on the interpretation given by the Privy Council, the provisions of Sections 124-A and 153-A Penal Code, impose reasonable restrictions in the interests of public order giving that expression a fair and reasonably wide meaning. Speaking personally and with great respect, it appears to me that the interpretation put by the Privy Council on the provisions of Section 124-A is unduly literal and verbal; it was given in the context of a state of affairs existing prior to the Constitution of India and, in my humble opinion, does not give full effect to the second and third explanations appended to the Section in the context of freedom of speech and expression now g uaranteed under the Constitution", Section 124-A was upheld as being constitutional by the Bench. It was pointed out that the words "in the interest of public order" is wider than the words "maintenance of public order".

48. It cannot be said as to what extent the view of Das, J. to the effect that the Privy Council had put a far too literal interpretation on Section 124-A affected his view that the restrictions imposed by that Section were within the permissible limits of Article 19(2) of the Constitution.

49. Even though the words in the interest of public order are wider them the words "maintenance of public order", it is to be considered as to how wide an interpretation should be given to those former words. Some limited meaning must necessarily be given to the words "in the interest of public order" and, in my view, a restriction to prevent an imaginary chance of disturbance of public order or a chance of disturbance of public order in the remote future or an infinitesimal present chance of disturbance of public order in the immediate future-could not be justified as a restriction in the "interest of public order."

A restriction cannot be put under Article 19(2) of the Constitution on an activity which does not have the jsced of "public disorder" or in which there is no "reasonable anticipation or likelihood of public disorder" or in which there is "no incitement or tendency to incite to public disorder". The authorities state that even such an activity (i.e. a speech which does not have the aforesaid effect) can be caught by Section 124-A.

50. No doubt the words now are "interest of public order", and it may be taken that the amendment made in Article 19(2) of the Constitution intended to give ample powers and this is also evident by the fact that the words "maintenance of public order" are not used but even so what is in the interest of public order necessarily tends to the maintenance of it and, in my view, although the words "maintenance of public order" are not there, there must still be some real likelihood of public disorder taking place either immediately or in the remote future.

If there is no such possibility surely the interest of public order cannot be said to be affected. In my view, it must be borne in mind that first a fundamental right of freedom of speech has been granted by the Constitution and then has been granted the right to the Legislature to put a reasonable restriction in the interest of public order.

The restriction must not be given more prominence than the fundamental liberty assured. In my view, the words "interest of public order" should not be so amplified us to enable the fundamental right guaranteed by Article 19(l)(a) to be swallowed up by the application of Article 19(2). One has to bear in mind that the Constitution of India is democratic, that it is based on the principle of election and that the Constitution itself provides a machinery for the Constitution being altered. Freedom of speech is essential to the proper working of the Constitution.

The exercise of these rights which are guaranteed by the Constitution is only possible if freedom of speech is granted and the general concepts prevailing at the time when the Constitution was framed prompted the founding fathers to guarantee freedom of speech and to place only very limited restrictions on such freedom of speech.

No doubt, the original idealistic impulse seems to have nearly worked itself out by the time that the present amended Clause (2) of Article 19 of the Constitution came to be framed, yet it must not be too lightly assumed, for that would be against the spirit of the Constitution, that the amendment effected endowed the Legislature with such ample powers that the very fundamental right guaranteed could be completely nullified.

51. It is to be noted that Section 124-A of Indian Penal Code, by its exceptions, permits no criticism of the Government as such, although it permits criticism of the measures or actions of Government. It has been recognised that even disapprobation of Government measures and action could be carried too far. In ILR Bom 112 it has been pointed out that :

If a man published comments upon Government measures which were not merely severe, unreasonable or unfair, but so violent or bitter, or accompanied by such appeals to political or religious fanaticism, or addressed to ignorant people at a time of great public excitement, that persons reading those comments carry their feelings of hostility beyond the Government measures to their author, the Government, and would become indisposed to obey and support the Government, and if it could fairly be gathered from the writing as a whole that the writer or publisher intended these results to follow, then he would be guilty under the Section, and would not be protected by the explanation."

This statement of law was with reference to Section 124-A as it stood then, but it has been recognised that the Section, as it exists at the present moment, marks no real departure from the Section, as it was before its amendment. In view of the limited protection afforded by the explanations of the Section it is clearly necessary, having regard to the fact that it is not always easy to separate the acts of Government from the Government itself, that the constitutionality of a Section, so widely framed, should be examined with agreat care and caution.

52. No doubt Government does not mean the same thing as a political party or the individual Ministers, but a criticism of either the political party or the individual Ministers has, in it, a tendency to become a criticism of the Government and, in a democratic system of Government, a criticism of the political ideals of a party, which is in power, and of the person belonging to that party, who may be functioning at any given time as Minister, may tend to become a criticism of the Government itself.

Care has,. therefore, to be taken that Legitimate political discussion and criticism may not be affected by Section 124-A. That prosecutions under Section 124-A may be rarely launched is immaterial. It must not moreover be forgotten that Section 124-A was framed at a time when the Structure of the Government in India was different.

53. Moreover, the word "Government" is a word of some amplitude as will appear from my brother Desais judgment. "Government has been defined in Section 3(23) of the General Clauses Act as including both the Central Government and the State Government and in Section 17 or the Penal Code as either the Central Government or the Government of a State. That definition does not take us very far. In Halsburys Laws of England (III Edition) Volume 7, page 187 (Part I), the word "Government" has been defined as follows :

"From the legal point of view, government may be described as the exercise of certain powers and the performance of certain duties by public authorities or officers together with certain private persons or corporations exercising public functions". The Constitution does not define "Government," though it undoubtedly vests the executive powers either in the President of India or in the Governors of the States but even though the executive powers are so vested, the Government is, in effect,, carried on by the Ministers and by the officials of the Government. Ministers whether at the centre or in the states are appointed under the Constitution and function thereunder, though, in law, they merely advise, in fact they govern and they are the executive governments.

As a result of the conventions as has been remarked of Parliamentary Government, there is a concentration of control of both legislative and executive functions in the small body of men called the Ministers and these are the men who decide important questions of policy.

The most important check on their powers is necessarily the existence of a powerfully organised Parliamentary opposition. But at the top of this there is also the fear that the Government may be subject to popular disapproval not merely expressed in the legislative chambers but in the market place also which, after all, is the forum where individual citizens ventilate their points of views.

If there is a possibility in the working of our democratic system -- as I think there is -- of criticism of the policy of Ministers and of the execution of their policy, by persons untrained in public speech becoming criticism of the Government as such & if such criticism without having any tendency in it to bring about public disorder, can be caught within the mischief of Section 124-A of the Indian Penal Code, then that Section must be invalidated because it restricts freedom of speech in disregard of whether the interest of public order or the security of the State is involved, and is capable of striking at the very root of the Constitution which is free speech (subject of limited control undor Article 19(2) ).

I might add that throughout the argument, Section 124-A of the Indian Penal Code was sought to be justified by the learned Advocate General on the ground that it was in the interest of public order and not so much in the interest of the security of the State. The latter angle has been dealt with by my brother Desai.

54. Certain cases were cited before us to show that many specches varying in their language wern held not to fall within Section 124-A of the Indian Penal Code. We are not concerned here with individual speeches. All that we are concerned with here is whether it is possible for a public speech, which excites the mildest form of disaffection or hatred or contempt even though such speech has not the tendency to bring about disorder to be caught by Section 124-A.

Inasmuch as the highest judicial interpretation is that such a speech could be so caught, in my view, it must be held that Section 124-A of the Indian Penal Code is ultra vires the Constitution. Section 124-A is obviously hit by the doctrine that :

"Where a law purports to authorise the imposition of restrictions on a fundamental right in language wide enough to cover restrictions both within and without the limits of constitutionally permissible legislative action affecting such right, it is not possible to uphold it even so far as it may be applied within the constitutional limits, as it is not severable. So long as the possibility of its being applied for purposes not sanctioned by the Constitution cannot be ruled out, it must be held to be wholly unconstitutional and void."

55. On a consideration of the entire position, I am of the view that Section 124-A of the Indian Penal Code is unconstitutional and I would, therefore, declare it to be void, N. U. BEG J.

56. The common question that has arisen in all these cases is whether Section 124-A, I. P. C., which incorporates the law of sedition in India is ultra vires of Article 19(1) of the Constitution of India Article 19(1)(a) of the Constitution lays down that all citizens shall have the right to freedom of speech and expression. The extent to which this right can be restricted by the Legislature is prescribed in Article 19(2) of the Constitution.

57. Article 19(2) as it originally stood provided as follows :

"Nothing in sub-clause (a) of Clause (1) shall affect the operation of any existing law in so far as it relates to, or prevent the State from making any law relating to, libel, slander, defamation, contempt of Court or any matter which offends against decency or morality or which undermines the security of, or tends to overthrow the. State."

Article 19(2) was amended by the Constitution (First Amendment) Act 1951. The new sub-clause reads as follows :

"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 interest 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."

58. Section 124-A I. P. C., lays down that whenever any person 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, he shall be liable to punishment as provided therein. Section 124-A I. P. C., was a law in force prior to the Constitution of India.

According to Article 13(1) of the Constitution, all laws in force in the territory of India immediately before the commencement of the Constitution, in so far as they are inconsistent with the provisions of Part III, shall, to the extent of such inconsistency, be void. Article 19 is contained in part III of the Constitution. Section 124-A I. P. C., is admittedly a law which restricts the fundamental right to freedom of speech and expression conferred by Article 19(1) of the Constitution, and is, therefore, inconsistent with it.

It would accordingly be void under Article 13(1) of the Constitution, unless saved by the reservations contained in Article 19(2). In order that a law should be protected by Article 19(2) of the Constitution as amended in 1951, the impugned law itself should fulfil two conditions. Firstly, it should be in the interests of one of the items referred to in Article 19(2); secondly, the restrictions that the said law imposes should be reasonable.

59. On behalf of the State, in the present case reliance is placed on the item relating to "public order," and it is argued that the impugned law is in the interests of public order; and further, that it imposes reasonable restrictions on the right to freedom of speech and expression. The two questions, therefore, that arise before us for decision are as follows :

1. Does Section 124-A enact a law that is in the interests of the public order

2. Is it a law which imposes reasonable restrictions on the right to freedom of speech and expression

In order to answer the two questions formulated above, it will be necessary at the very outset to determine the exact meaning and scope of the fence of sedition as defined in Section 124-A I. P. C. (60) On behalf of the State it is argued that the law in question is in the interests of public order, as every act that constitutes an offence under Section 124-A I, P. C., has a calculated or inherent tendency to create public disorder or to create a reasonable anticipation or likelihood of public disorder. No doubt the contention on behalf of the State finds strong support from the observations of the Federal Court made in the case of AIR 1942 FC 22 (E). While discussing the meaning and scope of the offence under Section 124-A I. P. C., Gwyer, C. J. in his judgment laid down the law in the said case as follows :