Saturday 28 March 2015

When offence of sedition is not made out?



In a major relief to cartoonist Aseem Trivedi, a bench comprising of Mohit Shah, CJ and N.M. Jamdar, J has held that citizens have the right to say or write anything criticizing the government and its measures as far as it does not incite violence or create problems in law and order. The Court observed that after having seen the seven cartoons drawn by the cartoonist, they didn't find any  element of wit or humour or sarcasm in them. It only displayed anger and disgust. But that does not mean that it attracted sedition charges,
The Court stated that it is clear that the provisions of Section 124A of IPC cannot be invoked to penalize criticism of the persons engaged in carrying on administration or strong words used to express disapprobation of the measures of Government with a view to their improvement or alteration by lawful means. Every citizen has a right to say or write whatever he likes about the Government, or its measures, by way of criticism or comments, so long as he does not incite people to violence against the Government established by law or with the intention of creating public disorder. The section aims at rendering penal only such activities as would be intended, or have a tendency, to create disorder or disturbance of public peace by resort to violence.
The Court also accepted a set of guidelines, as pre-conditions to police for invoking sedition charges only if an act was an incitement to violence or disturbed pubic order. A legal opinion in writing, along with reasons, must also  be submitted before any charge of sedition was to be applied in any case. 

CRIMINAL APPELLATE JURISDICTION
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL PUBLIC INTEREST LITIGATION NO. 3 OF 2015
Sanskar Marathe

versus
 The State of Maharashtra
   

   CORAM :  MOHIT S. SHAH, C.J. AND
           N.M.JAMDAR, J.

Date of pronouncing the judgment :   17 March 2015



Arrest of one Assem Trivedi on 8 September 2012 on 
the basis of registration of First Information Report (`FIR') on 
30 January 2012 alleging, inter alia, commission of offence of 
sedition   punishable   under   Section   124A   of   the   Indian   Penal 
Code, 1860, led to filing of the present Public Interest Litigation 
The allegation in the FIR is to the effect that Assem 

2.
which is now registered as Criminal PIL.
Trivedi, who is a political cartoonist and social activist, through 
his cartoons, not only defamed Parliament, the Constitution of 
India and the Ashok Emblem but also tried to spread hatred and 
disrespect   against   the   Government   and   published   the   said 
cartoons on `India Against Corruption" website, which not only 
amounts   to   insult   under   the   National   Emblems   Act   but   also 
amounts to serious act of sedition.   After the arrest of Assem 
Trivedi   on   9   September   2012,   he   was   produced   before   the 
learned   Metropolitan   Magistrate.     The   petitioner   alleged   that 
Assem Trivedi refused to make an application for bail till the 
charges of sedition were dropped.  Contending that publication 
and/or   posting   such   political   cartoons   on   website   can   by   no 
stretch of imagination attract a serious charge of sedition and 
that   Assem   Trivedi   was   languishing   in   jail   on   account   of   the 
charge of sedition being included in the FIR, the petitioner, a 
practicing advocate in this Court, moved the present PIL on 11 

this Court passed the following ad­interim order :
September 2012.  The matter was mentioned for circulation and 
"
In the facts and circumstances of the case, 
by this ad­interim order we direct that Mr.Assem 
Trivedi   be   released   on   bail   on   executing   a 
personal bond in the sum of Rs.5,000/­.
Registry  to communicate  this order  to  the 
Superintendent, Arthur Road Jail."

Accordingly, Mr. Assem Trivedi executed a personal 
bond and was released on bail.
Thereafter,   on   the   returnable   date,   leave   was 
granted to implead Mr. Assem Trivedi as respondent no.3.
3.
The third respondent claimed to have exercised his 
fundamental right to the freedom of speech and expression as a 
cartoonist and claimed that his arrest and detention seriously 
encroached  upon   the   freedom  guaranteed to  every  citizen   by 
Article 19(1)(g) of the Constitution of India.
4.
Affidavit­in­reply dated 12 October 2012 came to be 
filed   by   Assistant   Commissioner   of   Police,   Kherwadi   Division, 
Mumbai stating that the third respondent had displayed several 
cartoons at a public meeting held on 27 November 2011 at the 
MMRDA   ground   in   Mumbai.     The   said   meeting   was   held   in 
connection   with   the   movement   launched   by   Anna   Hazare 

against corruption in India.  Apart from displaying the cartoons, 
he had also uploaded some of his cartoons on a website called 
"Cartoons against Corruption".  Pursuant to the above display of 
cartoons,   several   complaints   came   to   be   filed   against   Aseem 
Trivedi.  
On 10 January 2012, Bandra­Kurla Complex Police 
Station   received   a   written   complaint   from   Amit   Katarnavare 
asking the Police to register an FIR, inter alia, under Sections 

124A, 153­A, 120­B, 167 and 109 of Indian Penal Code.  When 
the   said   complaints   were   forwarded   to   the   Directorate   of 
Prosecutions,   Maharashtra   State   for   opinion,   the   Assistant 
Director,   Public   Prosecution,   Brihanmumbai   vide   his   opinion 
dated 10 January 2012 advised to invoke Section 124A of the 
IPC   and   provisions   of   State   Emblem   of   India   (Prohibition   of 
Improper Use) Act, 2005.   On 30 January 2012, Bandra­Kurla 
Complex Police Station registered an FIR vide CR No.14 of 2012 
under Section 124A of IPC, under Section 2 of National Honour 
Act   and   under   Section   66­A   of   Information   Technology   Act 
based on statement of Amit Katarnavare, which was recorded 
on 30 December 2011.
5.
In   view   of   the   above   complaint,   a   non   bailable 
warrant   came   to   be   issued   by   Additional   Metropolitan 
Magistrate,   9th   Court,   Bandra,   Mumbai   on   2   August   2012 
against the third respondent.  However, he could not be found 
and   when   he   learnt   of   issuance   of   a   non­bailable   warrant 

against   him,   he   surrendered   before   Bandra­Kurla   Complex 
Police Station on 8 September 2012.  On 9 September 2012 the 
Metropolitan   Magistrate   granted   police   custody   of   the   third 
respondent for seven days.   However, on 10 September 2012, 
Police produced him before the Metropolitan Magistrate as he 
had admitted to have drawn the cartoons.   However, the third 
respondent did not apply for bail.  Thereafter, as aforesaid, this 
Court passed an order dated 11 September 2012 directing the 
Police to release the third respondent on bail on his executing 
6.
personal bond. 
Thereafter, Bandra­Kurla Police obtained opinion of 
the then Advocate General with regard to invocation of Section 
124A of IPC to the facts of present case, amongst other queries. 
Pursuant   to   the   legal   opinion   of   the   then   learned   Advocate 
General, it was decided to drop invocation of Section 124A of 
IPC.  The Police Department, however, took a view that as far as 
application   of   Section   2   of   Prevention   of   Insult   to   National 
Honour Act, 1971 and Section 66(A) of Information Technology 
Act is concerned, the same will apply only to three out of seven 
cartoons, which will be dealt with in accordance with law.
7.
In view of the above developments, the controversy 
about invocation of Section 124A of IPC would not survive any 
longer   in   the   facts   of   the   present   case.     However,   learned 
counsel   for   petitioner   submitted   that   since   the   Police   had 

arbitrarily invoked the serious charge of sedition under Section 
124A of IPC in a matter where the cartoonist was entitled to 
exercise   his   fundamental   right   to   the   freedom   of   speech   and 
expression under Article 19(1)(a) of the Constitution of India, 
this   Court   may   examine   the   legal   position   so   that   such 
invocation   is   not   resorted   to,   in   future,   in   an   arbitrary   and 
irresponsible manner.  We, therefore, heard the learned counsel 
for PIL petitioner, learned Advocate General for the State and 
At   the   outset,  we   may   reproduce   Section   124A   of 
8.
learned counsel for third respondent Mr. Aseem Trivedi.
IPC for ready reference :
"124A  Sedition: 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 imprisonment for life, to which  
fine may be added, or with imprisonment which may  
extend to three years, to which fine may be added, or  
with fine.
Explanation 1 ­
The   expression   "disaffection"  
includes disloyalty and all feelings of enmity.
Explanation 2  ­ Comments   expressing   dis­
approbation 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   dis­
approbation 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.
Classification of offence:  Punishment­Imprisonment  
for life and fine, or imprisonment for 3 years and fine,  
or fine­ Cognizable ­ Non bailable­ Triable by Court of  
Session­ Non compoundable."
Article 19(1)(a) conferring the fundamental right  to 
9.
freedom of speech and expression and Article 19(2)   read as 
under :
"19. (1) All citizens shall have the right ­ 
(a)   to   freedom   of   speech   and   expression..."  
This guaranteed right is subject to the right of  
the   legislature   to   impose   reasonable  
restrictions, the ambit of which is indicated by  
clause (2), which, in its amended form, reads  
as follows : 
"19   (2)   Nothing   in   sub­clause   (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   sub­clause   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."

In the leading case of  Kedar Nath Singh Vs. State 
of Bihar1, a Constitution Bench of the Supreme Court examined 
the question “how far the offence, as defined in Section 124A of 
IPC,   is   consistent   with   the   fundamental   right   guaranteed   by 
Article 19(1)(a) of the Constitution”, and observed, inter alia, as 
under :
.........   It  has   not   been  questioned   before   us  
that   the   fundamental   right   guaranteed   by   Art.  
19(1)(a) of the freedom of speech and expression is  
not an absolute right. It is common ground that the  
right   is   subject   to   such   reasonable   restrictions   as  
would come within the purview of clause (2), which  
comprises   (a)   security   of   the   State,   (b)   friendly  
relations  with  foreign States, (c)  public order,  (d)  
decency or morality, etc., etc. With reference to the  
constitutionality of s.  124A  or s.  505  of the Indian  
Penal Code, as to how far they are consistent with  
the   requirements   of   clause   (2)   of   Art.  19  with  
particular   reference   to   security   of   the   State   and  
public order, the section, it must be noted, penalises  
any   spoken   or   written   words   or   signs   or   visible  
representations,   etc.,   which   have   the   effect   of  
bringing, or which attempt to bring into hatred or  
contempt or excites or attempts to excite disaffection  
towards   the  Government   established   by   law.   Now,  
the   expression   "the   Government   established   by  
law"   has   to   be   distinguished   from   the   persons  
for the time being engaged in carrying on the  
administration.   "Government   established   by  
law" is the visible symbol of the State. The very  
existence   of   the   State   will   be   in   jeopardy   if   the  
Government established by law is subverted. Hence  
the   continued   existence   of   the   Government  
established by law is an essential condition of the  

"24.
1 AIR-1962-SC-955

stability of the State. That is why 'sedition', as the  
offence   in   s.  124A  has   been   characterised,   comes  
under   Chapter   VI   relating   to   offences   against   the  
State. Hence any acts within the meaning of s. 124A 
which have the effect of subverting the Government  
by   bringing   that   Government   into   contempt   or  
hatred, or creating disaffection against it, would be  
within   the   penal   statute   because   the   feeling   of  
disloyalty to the Government established by law or  
enmity to it imports the idea of tendency to public  
disorder by the use of actual violence or incitement  
to violence. In other words, any written or spoken  
words, etc., which have implicit in them the idea of  
subverting Government by violent means, which are  
compendiously   included   in   the   term   'revolution',  
have  been  made   penal  by  the  section   in   question.  
But   the   section   has   taken   care   to   indicate   clearly  
that  strong   words   used   to   express  
disapprobation of the measures of Government  
with a view to their improvement or alteration  
by   lawful   means   would   not   come   within   the  
section. Similarly,  comments, however  strongly  
worded, expressing disapprobation of actions of  
the Government, without exciting those feelings  
which  generate  the  inclination  to  cause  public  
disorder by acts of violence, would not be penal. 
In other words, disloyalty to Government established  
by   law   is   not   the   same   thing   as   commenting   in  
strong   terms   upon   the   measures   or   acts   of  
Government, or its agencies, so as to ameliorate the  
condition of the people or to secure the cancellation  
or   alteration   of   those   acts   or   measures   by   lawful  
means, that is to say, without exciting those feelings  
of enmity and disloyalty which imply excitement to  
public disorder or the use of violence. 
25. It has not been contended before us that if a  
speech or a writing excites people to violence or have  
the tendency to create public disorder, it would not  
come   within   the   definition   of   'sedition'.   What   has  
been contended is that a person who makes a very  

strong   speech   or   uses   very   vigorous   words   in   a  
writing   directed   to   a   very   strong   criticism   of  
measures of Government or acts of public officials,  
might   also   come   within   the   ambit   of   the   penal  
section. But, in our opinion, such words written or  
spoke would be outside the scope of the section. In  
this   connection,   it   is   pertinent   to   observe   that   the  
security   of   the   State,   which   depends   upon   the  
maintenance   of   law   and   order   is   the   very   basic  
consideration upon which  legislation, with  view  to  
punishing offences against the State, is undertaken.  
Such   a   legislation   has,   on   the   one   hand,   fully   to  
protect   and   guarantee   the   freedom   of   speech   and  
expression, which is the sine quo non of a democratic  
form   of   Government   that   our   Constitution   has  
established.   This   Court,   as   the   custodian   and  
guarantor of the fundamental rights of the citizens,  
has the duty cast upon it of striking down any law  
which   unduly   restricts   the   freedom   of   speech   and  
expression with which we are concerned in this case.  
But the freedom has to be guarded against becoming  
a   licence   for   vilification   and   condemnation   of   the  
Government   established   by   law,   in   words,   which  
incite violence or have the tendency to create public  
disorder.  A   citizen   has   a   right   to   say   or   write  
whatever he likes about the Government, or its  
measures,   by   way   of   criticism   or   comment,   so  
long   as   he   does   not   incite   people   to   violence  
against   the   Government   established   by   law   or  
with   the   intention   of   creating   public   disorder. 
The Court, has, therefore, the duty cast upon it of  
drawing   a   clear   line   of   demarcation   between   the  
ambit   of   a   citizen's   fundamental   right   guaranteed  
under   Art.  19(1)(a)  of   the   Constitution   and   the  
power   of   the   legislature   to   impose   reasonable  
restrictions on that guaranteed right in the interest  
of, inter alia, security of the State and public order.
26.    ....... There can be no doubt that apart from  
the provisions of clause (2) of Art. 19, Sections 124A  
and 505 are clearly violative of Art. 19(1)(a) of the  

Constitution. But then we have to see how far the  
saving clause, namely, clause (2) of Art. 19 protects  
the sections aforesaid. Now, as already pointed out,  
in terms of the amended clause (2), quoted above,  
the expression "in the interest of.... public order" are  
words   of   great   amplitude   and   are   much   more  
comprehensive   than   the   expression   "for   the  
maintenance   of",   as   observed   by   this   Court   in   the  
case of Virendra v. The State of Punjab : 1958­SCR­
308 at P
.317 : [(S) AIR­1957­SC­896 at P
.899] . Any  
law which is enacted in the interest of public order  
may   be   saved   from   the   vice   of   constitutional  
invalidity. If, on the other hand, we were to hold that  
even without any tendency to disorder or intention to  
create  disturbance  of  law   and  order,  by  the  use  of  
words   written   or   spoke   which   merely   create  
disaffection   or   feelings   of   enmity   against   the  
Government, the offence of sedition is complete, then  
such   an   interpretation   of   the   sections   would   make  
them unconstitutional in view of Art. 19(1)(a) read  
with   clause   (2).   It   is   well   settled   that   if   certain  
provisions of law construed in one way would make  
them consistent with the Constitution, and another  
interpretation   would   render   them   unconstitutional,  
the   Court   would   lean   in   favour   of   the   former  
construction. The provisions of the sections read as a  
whole,   along   with   the   explanations,   make   it  
reasonably clear that the sections aim at rendering  
penal only such activities as would be intended,  
or   have   a   tendency,   to   create   disorder   or  
disturbance of public peace by resort to violence. 
As already pointed out, the explanations appended to  
the   main   body   of   the   section   make   it   clear   that  
criticism   of   public   measures   or   comment   on  
Government   action,   however   strongly   worded,  
would be within reasonable limits and would be  
consistent with the fundamental right of freedom  
of   speech   and   expression.   It   is   only   when   the  
words,   written   or   spoken,   etc.   which   have   the  
pernicious   tendency   or   intention   of   creating  
public disorder or disturbance of law and order  

that the law steps in to prevent such activities in  
the   interest   of   public   order.   So   construed,   the  
section,   in   our   opinion,   strikes   the   correct  
balance   between   individual   fundamental   rights  
and the interest of public order. "
(emphasis supplied)
11.
Thereafter,   Supreme   Court   examined   this   question 
again in Balwant Singh and another Vs. State of Punjab 2.  On 
the date of assassination of former Prime Minister Smt. Indira

Gandhi, considerable tension had been generated in the State of 
Punjab.     The   appellants   raised   three   slogans   and   they   were 
charged with the offences punishable under Sections 124A and 
153B   of   IPC.     In   that   context,   the   Supreme   Court   made   the 
following observations :
"A   plain   reading   of   the   above   Section   would   show  
that its application would be attracted only when the  
accused   brings   or   attempts   to   bring   into   hatred   or  
contempt or excites or attempts to excite disaffection  
towards the Government established by law in India,  
by words either written or spoken or visible signs or  
representations etc.   Keeping in view the prosecution  
evidence that the slogans as noticed above were raised  
a   couple   of   times   only   by   the   appellant   and   that  
neither the slogans evoked a response from any other  
person of the Sikh community or reaction from people  
of other communities, we find it difficult to hold that  
upon the raising of such casual slogans, a couple of  
times without any other act whatsoever, the charge of  
sedition can be founded.  It is not the prosecution case  
that the appellants were either leading a procession  
or   were   otherwise   raising   the   slogans   with   the  
intention to incite people to create disorder or that  
2 AIR-1995-SC-1785

the   slogans   in   fact   created   any   law   and   order  
problem.     It   does   not   appear   to   us   that   the   police  
should have attached much significance to the casual  
slogans raised by  two appellants, a couple of times  
and read too much into them.   The prosecution has  
admitted that no disturbance, whatsoever, was caused  
by the raising of the slogans by the appellants and  
that in spite of the fact that the appellants raised the  
slogans a couple of times, the people, in general, were  
unaffected   and   carried   on   with   their   normal  
activities.  The casual raising of the slogans, once or  
twice by two individuals alone cannot be said to be  
aimed   at   exciting   or   attempt   to   excite   hatred   or  
disaffection   towards   the   Government   as   established  
by law in India.  Section 124A IPC, would in the facts  
and   circumstances   of   the   case   have   no   application  
whatsoever and would not be attracted to the facts  
and circumstances of the case."
In  Nazir   Khan   vs.   State   of   Delhi 3,  the   Supreme 
12.
Court explained “sedition” as defined in section 124A IPC in the 
following words:
“37.   Section 124A deals with 'Sedition'. Sedition is a  
crime against society nearly allied to that of treason,  
and it frequently precedes  treason by a short interval.  
Sedition   in   itself   is   a   comprehensive     term,   and   it  
embraces all those practices, whether by word, deed, or  
writing, which are calculated to disturb the tranquility  
of the State, and lead ignorant persons to endeavour to  
subvert the Government and laws of the country.  The  
objects   of   sedition   generally   are   to   induce   discontent  
and   insurrection,   and   stir   up   opposition   to   the  
Government,   and   bring   the   administration   of   justice  
into contempt; and the very tendency of sedition is to  
incite the people to insurrection and rebellion. "Sedition  
3 (2003) 8 SCC 461

13.
has been described as disloyalty in action, and the law  
considers as sedition all those practices which have for  
their   object   to   excite   discontent   or   dissatisfaction,   to  
create   public   disturbance,   or   to   lead   to   civil   war;   to  
bring   into   hatred   or   contempt   the   Sovereign   or   the  
Government,   the   laws   or   constitutions   of   the   realm,  
and   generally   all   endeavours   to   promote   public  
disorder.” 
In  S. Rangarajan Vs. P
. Jagjivan Ram  and others4 
the   Supreme   Court   considered   the   fundamental   right   to 

freedom of speech and expression in the context of censorship 
under   the   Cinematograph   Act.     A   Tamil   film   criticised   the 
Government policy of reservation in Government service.  After 
examining   the   judgments   of   the   Supreme   Court   of   USA,   the 
Apex Court observed as under:­
“7. ....   The   First   Amendment   to   the   U.S.  
Constitution   provides:   "Congress   shall   make   no  
law   ...   abridging   the   freedom   of   speech,   or   of   the  
press." This Amendment is absolute in terms and it  
contains   no   exception   for   the   exercise   of   the   right.  
Heavy   burden   lies   on   the   State   to   justify   the  
interference. The judicial decisions, however, limited  
the scope of restriction which the State could impose  
in any given circumstances. The danger rule was born  
in   Schenek   v.   United   States,   249   U.S.   47.   Justice  
Holmes   for   a   unanimous   court,   evolved   the   test   of  
"clear and present danger". He used the danger test to  
determine  where  discussion  ends  and   incitement  or  
attempt begins. The core of his position was that the  
First Amendment protects only utterances that seeks  
acceptance   via   the   democratic   process   of   discussion  
and   agreement.   But   "Words   that   may   have   all   the  
effect   of   force"   calculated   to   achieve   its   goal   by  
4 (1989) 2 SCC 574

circumventing   the   democratic   process   are   however,  
not so protected.”
8.
The framework of our Constitution differs from  
the First Amendment to the U.S. Constitution. Article  
19(1)(a)   of   our   Constitution   guarantees   to   all  
citizens the right to freedom of speech and expression.  
The freedom of expression means the right to express  
one’s opinion by words of mouth, writing, printing,  
picture or in any other manner. It would thus include  
the   freedom   of   communication   and   the   right   to  
propagate or publish opinion. The communication of  
ideas   could   be   made   through   any   medium,  
newspaper,   magazine   or   movie.   But   this   right   is  
subject to reasonable restrictions on grounds set out  
under   Article   13(2)   of   the   Constitution.   The  
reasonable limitations can be put in the interest of  
sovereignty and integrity of India, 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. The  
Framers deemed it essential to permit imposition of  
reasonable restrictions in the larger interests of the  
community   and   country.   They   intended   to   strike   a  
proper   balance   between   the  liberty   guaranteed   and  
the social interest specified under Article 19(2).
11.  Here again we find the difference between the  
First Amendment to the U.S. Constitution and Article  
19(1)(a) of our Constitution. The First Amendment  
does   not   permit   any   prior   restraint,   since   the  
guaranty of free speech is in unqualified terms.
17.  It will be thus seen that censorship is permitted  
mainly on social interest specified under Article 19(2)  
of the Constitution with emphasis on maintenance of  
values   and   standards   of   society.   Therefore,   the  
censorship   by   prior   restraint   must   necessarily   be  
reasonable that could be saved by the well accepted  
principles of judicial review.”

As regards the reasonableness of restriction on the ground of 
social interests under Article 19(2) on the freedom of speech 
and   expression,   the   Apex   Court   laid   down   the   following 
principles:

“45. The problem of defining the area of freedom of  
expression   when   it   appears   to   conflict   with   the  
various   social   interests   enumerated   under   Article  
19(2) may briefly be touched upon here. There does  
indeed have to be a compromise between the interest  
of freedom of expression and social interests. But we  
cannot simply balance the two interests ,as if they are  
of   equal   weight.   Our   commitment   to   freedom   of  
expression   demands   that   it   cannot   be   suppressed  
unless the situations created by allowing the freedom  
are   pressing   and   the   community   interest   is  
endangered.   The   anticipated   danger   should   not   be  
remote,   conjectural   or   far   fetched.   It   should   have  
proximate and direct nexus with the expression. The  
expression   of   thought   should   be   intrinsically  
dangerous to the public interests. In other words, the  
expression should be inseparably locked up with the  
action contemplated like the equivalent of a "spark in  
a powder keg".
53.  We   end   here   as   we   began   on   this   topic.  
Freedom   of   expression   which   is   legitimate   and  
constitutionally protected, cannot be held to ransom  
by an intolerant group of people. The fundamental  
freedom   under   Article  19(1)(a)  can   be   reasonably  
restricted for the purposes mentioned in Article 19(2) 
and the restriction must be justified on the anvil of  
necessity   and   not   the   quicksand   of   convenience   of  
expediency.   Open   criticism   of   Government   policies  
and   operations   is   not   a   ground   for   restricting  
expression. We must practice tolerance to the views of  
others.   Intolerance   is   as   much   dangerous   to  
democracy as to the person himself."

In  Sakal   Vs.   Union   of   India5  the   Supreme   Court 
14.

observed that Courts must be ever vigilant in guarding the most 
precious of all the freedoms guaranteed by the Constitution i.e. 
freedom   of   expression   and   speech.     In  Manubhai   Patel   Vs. 
State of Gujarat and another6 the Gujarat High Court observed 
that there can indeed be no real freedom unless thought is free 
and unchecked, not free thought for those who agree with us 

but freedom for the thought we hate.  However, the constitution 
does   not   permit   the   Legislature   to   make   laws   imposing 
reasonable restrictions on such freedom on the grounds set out 
in   clause   (2)   of   Article   19,   including   in   the   interests   of 
sovereignty and integrity of India and the security of the State.
15.
On a perusal of the aforesaid judgments, it is clear 
that the provisions of section 124A of IPC cannot be invoked to 
penalize criticism of the persons for the time being engaged in 
carrying   on   administration   or   strong   words   used   to   express 
disapprobation of the measures of Government with a view to 
their   improvement   or   alteration   by   lawful   means.     Similarly, 
comments, however strongly worded, expressing disapprobation 
of   actions  of  the  Government, without  exciting those  feelings 
which generate the inclination to cause public disorder by acts 
of violence, would not be penal.  A citizen has a right to say or 
5 (1962)3-SCR-842
6 1972-Cri.L.J.-388

write whatever he likes about the Government, or its measures, 
by way of criticism or comments, so long as he does not incite 
people to violence against the Government established by law or 
with the intention of creating public disorder.  The section aims 
at rendering penal only such activities as would be intended, or 
have   a   tendency,   to   create   disorder   or   disturbance   of   public 
16.
peace by resort to violence.
Cartoons   or   caricatures   are   visual   representations, 

words or signs which are supposed to have an element of wit, 
humour or sarcasm.  Having seen the seven cartoons in question 
drawn by the third respondent, it is difficult to find any element 
of   wit   or   humour   or   sarcasm.     The   cartoons   displayed   at   a 
meeting held on 27 November 2011 in Mumbai, as a part of 
movement   launched   by   Anna   Hazare   against   corruption   in 
India,   were   full   of   anger   and   disgust   against   corruption 
prevailing in the political system and had no element of wit or 
humour or sarcasm.  But for that reason, the freedom of speech 
and expression available to the third respondent to express his 
indignation against corruption in the political system in strong 
terms or visual representations could not have been encroached 
upon when there is no allegation of incitement to violence or 
the tendency or the intention to create public disorder.
17.
We do not find it necessary to dwell on the subject 
any further, as the learned Advocate General submitted that the 

State Government in Home Department will issue the following 
(1)
guidelines in the form of a Circular to all the Police personnel :
In   view   of   the   felt   need   to   issue   certain 
guidelines to be followed by Police while invoking 
Section   124A   IPC,   the   following   pre­conditions 
must be kept in mind whilst applying the same:
The   words,   signs   or   representations   must 
(i)

bring the Government (Central or State) into 
hatred or contempt or must cause or attempt 
to cause disaffection, enmity or disloyalty to 
the   Government   and   the   words/signs/ 
representation must also be an incitement to 
violence   or   must   be   intended   or   tend   to 
create   public   disorder   or   a   reasonable 
apprehension of public disorder;
(ii)
Words,   signs   or   representations   against 
politicians   or   public   servants   by   themselves 
do   not   fall   in   this   category   unless   the 
words/signs/representations   show   them   as 
representative of the Government;
(iii) Comments   expressing   disapproval   or 
criticism of the Government with a view to 
obtaining a change of government by lawful 

seditious under Section 124A;
means   without   any   of   the   above   are   not 
seditious under Section 124A;
(iv) Obscenity or vulgarity by itself should not be 
taken   into   account   as   a   factor   or 
consideration   for   deciding   whether   a   case 
falls within the purview of Section 124A of 
A   legal   opinion   in   writing   which   gives 
(v)
sections of law;
IPC,   for   they   are   covered   under   other 
reasons   addressing   the   aforesaid   must   be 
obtained   from   Law   Officer   of   the   District 
followed within two weeks by a legal opinion 
in   writing   from   Public   Prosecutor   of   the 
State.
2.(i) All Unit Commanders are directed to follow 
above instructions scrupulously.
  (ii) It   must   also   be   kept   in   mind   that   the 
instructions   mentioned   above   are   not 
exhaustive   and   other   relevant   factors 
depending from case to case may also be kept 
in mind while applying Section 124A of the 
IPC.

We  clarify that this matter was heard only on the 
18.
limited question of invocation of Section 124A of IPC and the 
permissible   lawful   restriction   on   the   freedom   of   speech   and 
expression in the interests of public order and not in any other 
respect nor in respect of any other offence alleged to have been 
committed by the third respondent.
The PIL accordingly stands disposed of.
20. We would like to place on record our appreciation 
19. 

for the valuable assistance rendered by Mr. Darius Khambata, 
the   then   learned   Advocate   General,   as   well   as   Mr.   Sunil 
Manohar,  learned  Advocate  General,  Mr. Mihir  Desai,  learned 
counsel for the third respondent and Mr. Marathe, the party in 
           (CHIEF JUSTICE)
                     (N.M. JAMDAR, J.)

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