Disaffection as used in 124 A For the favour of appellants

The first recorded state trial for sedition is that of Queen Empress v. Jogendra Chunder Bose38 (Jogendra Bose).
The Court, in its much debated judgment, laid down the distinction between disaffection and disapprobation.
Disaffection was defined as the use of spoken or written words to create a disposition in the minds of those to whom
the words were addressed, not to obey the lawful authority of the government, or to resist that authority.39 It was
also observed that:
It is sufficient for the purposes of the section that the words used are calculated to excite feelings of ill-will against
the Government, and to hold it up to the hatred and contempt of the people, and that they were used with an
intention to create such feeling.40
Another significant case which had a direct bearing on the 1898 amendment was that of Queen Empress v. Bal
Gangadhar Tilak41 (Tilak). Allegations of sedition against Bal Gangadhar Tilak were first forwarded when the
magazine Kesari published detailed reports of the proceedings that had taken place at the Shivaji Coronation
Festival, during the celebration of which several patriotic lectures and speeches were delivered. It was alleged that
these speeches made references to Shivajis call for Swarajya (independence) and alluded to the trials of the people
under the British rule.42 Although the Coronation Ceremony in itself was peaceful, the weeks following the
publication of the report on June 15, 1897, saw the murder of two eminent British officials. 43 In perhaps one of the
most comprehensive expositions of the law in colonial India, the Court, transcending the arguments from both sides,
interpreted 124A mainly as exciting feelings of disaffection towards the government, which covered within its
ambit sentiments such as hatred, enmity, dislike, hostility, contempt, and all forms of ill-will. It expanded the scope
of the offence by holding that it was not the gravity of the action or the intensity of disaffection, but the presence of
feelings that was paramount44 and mere attempt to excite such feelings was sufficient to constitute an offence. 45 The
meaning of disaffection and disapprobation was further clarified by the court in Queen Empress v. Ramchandra
Narayan46 in which accusations against the editor and proprietor of the Pratod newspaper for publishing an article
entitled Preparation for Becoming Independent. The Court did not agree with the notion that disaffection was
necessarily the opposite of affection, but it advocated that an attempt to excite disaffection amongst the masses was
to be construed as an attempt to excite political discontent and alienation from their allegiance to a foreign
sovereign.47 In Queen Empress v. Amba Prasad,48 the Court, however, held that even in cases of disapprobation
of the measures of the government, if it can be deduced from a fair and impartial consideration of what was spoken
or written, that the intention of the accused was to excite feelings of disaffection towards the government and
therefore it could be considered a seditious act. 49 Thus disaffection would include the absence or negation of
affection as well as a positive feeling of aversion towards the government.50
In Niharendu Dutt Majumdar v. King Emperor 51 (Niharendu Majumdar). Charges of sedition had first been
pressed against Majumdar on account of him allegedly delivering violent and speeches in the Bengal legislative
assembly highlighting the inefficiency of the State Government to maintain law and order in the aftermath of the
Dacca riots.52 Sir Maurice Gwyer, Chief Justice of the Federal Court at the time, held that the mere presence of
violent words does not make a speech or publication seditious. Instead, he was of the belief that in order to be
brought under the ambit of sedition, 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.53
At the time of the Indian movement for independence from British rule, the law of sedition was applied against great
nationalists, such as Annie Besant, Bal Gangadhar Tilak and Mahatma Gandhi, as a tool to curb dissent. Keeping
such excesses in mind, the Freedom of Speech and Expression was originally encompassed in Article 13 of the Draft
Constitution. In its original form, this provision guaranteed this right subject to restrictions imposed by Federal Law
to protect aboriginal tribes and backward classes and to preserve public safety and peace.57

Queen Empress v. Jogendra Chunder Bose, ILR (1892) 19 Cal 35.

Id., 40-42.
40 Id., 45 (This expression is an example of how the law was a direct import from the English case
38
39

law of the time and is noteworthy insofar as it became the basis for the 1898 amendment to the
legislation. Eventually, the accused himself tendered an apology and all proceedings against
him were dropped).
41 Queen Empress v. Bal Gangadhar Tilak, ILR (1898) 22 Bom 112.
42 Ganachari, supra note 10, 60; See also Siddharth Narrain, Disaffection and the Law: The
Chilling Effect of Sedition Laws in India, XLVI (8) EPW 34 (2011) (The allegedly seditious
report comprised of two sets of publications. The first was a metaphorical poem entitled Shivajis utterances. It was asserted that strong
symbolic parallels could be drawn from the
poem insofar as it linked Shivajis attempt to attain swarajya with the Indian struggle for
independence. The second was a compilation of speeches delivered at the Shivaji coronation
ceremony. It was believed that these speeches, by referring to the killing of Afzal Khan by
Shivaji, sought to justify acts of political assassination and were directly responsible for the
murder of Commissioner Rand and Lieutenant Ayherst, both of whom were killed within a
week of publication).
43 See Ganachari, supra note 10, 60 (The legal proceedings against Tilak were precipitated by the
pressure which the Imperialist Anglo-Indian press put on the Government. Leading newspapers
of the era, such as the Times of India and the Bombay Gazette, laid accusations of sedition
against Tilak and urged the Crown to bring him to trial under 124-A).
44 Janaki Bakhle, Savarkar (1983-1966), Sedition and Surveillance: the rule of law in a colonial
situation, February 12, 2010, available at http://www.scribd.com/doc/94493285/BakhleSedition-and-Savarkar (Last visited on March 10, 2014).
45 Id.
46 Queen Empress v. Ramchandra Narayan, ILR (1898) 22 Bom 152.
47 Id., Ganachari, supra note 10, 62.
48 Queen Empress v. Amba Prasad, ILR (1898) 20 All 55.
49 Id.
50 Id.
51 Niharendu Dutt Majumdar v. King Emperor, AIR 1942 FC 22.
52 Id.
53 Id., See also Narrain, supra note 42.
57 Constitutional Assembl y Debates, December 7, 1948, speech by Damodar Swarup Seth 17 available at
http://164.100.47.132/LssNew/constituent/vol7p21.pdf (Last visited on June 10,2016)
III. KEDAR NATH AND THE MODERN
DEFINITION OF SEDITION
As stated earlier, the decision of the Supreme Court in Kedar Nath laid down the interpretation of the law of sedition as it is understood today. In
this decision, five appeals to the Apex Court were clubbed together to decide the issue of the constitutionality of 124A of the IPC in light of
Article 19(1)(a) of the Constitution. In the Courts interpretation the incitement to violence was considered an essential ingredient of the offence
of sedition.72 Here, the court followed the interpretation given by the Federal Court in Niharendu Majumdar. Thus, the crime of sedition was
established as a crime against public tranquillity73 as opposed to a political crime affecting the very basis of the State. The Court looked at the
pre-legislative history and the opposition in the Constituent Assembly debates around Article 19 of the Constitution. Here, it noted that sedition
had specifically been excluded as a valid ground to limit the freedom of speech and expression even though it was included in the draft
Constitution.74 This was indicative of a legislative intent that sedition not be considered a valid exception to this freedom.75As a consequence,
sedition could only fall within the purview of constitutional validity if it could be read into any of the six grounds listed in Article 19(2) of the
Constitution.76 Out of the six grounds in Article 19(2), the Court considered the security of the state as a possible ground to support the
constitutionality of 124A of the IPC.77 The Court made use of the principle that when more than one interpretation may be given to a legal
provision, it must uphold that interpretation which makes the provision constitutional.78 Any interpretation that makes a provision ultra vires the
Constitution must be rejected. Thus, even though a plain reading of the section does not suggest such a requirement, it was held to be mandatory
that any seditious act must be accompanied by an attempt to incite violence and disorder.79The reasoning of the Court was that since sedition
laws would be used to maintain public order, and the maintenance of public order would in turn be in the interests of the security of the state,
these laws could be justified in the interests of the latter.80
72 See Pill ai, supra note 13, 482.
73 See Rex v. Aldred, (1909) 22 Cox CC 1.
74 Kedar Nath v. State of Bihar, AIR 1962 SC 955, 30; See also Romesh Thappar v. Madras, AIR
1950 SC 124 (per Sastri, J.:
Deletion of the word sedition from draft Art. 13(2), therefore, shows that criticism of Government exciting disaffection or bad feelings towards
it is not to be regarded as a justifying ground for restricting the freedom of expression and of the press, unless it is such as to undermine the
security or tend to overthrow the State. Further, the court also observed that the Irish formula of undermining the public order or the authority
of the State as a standard to impose limits on the freedom of speech and expression had not found favour with the drafters of the Constitution).
75 Kedar Nath v. Union of India, AIR 1962 SC 955, 29.
76 Id., 38.
77 Id.
78 Id., 39 (citing R.M.D. Chamarbaugwalla v. Union of India, AIR 1957 SC 628).
79 Id.
80 Id., 31.

The Court in Kedar Naths case stated that the section related to sedition was
a reasonable restriction both on grounds of public order and security of the
state. Further, the addition of the phrase in the interest of public order in
Article 19(2) through the first constitutional amendment with retrospective
application was seen as an attempt to validate the interpretation given by
Fazl Ali, J. in Brij Bhushan v. State of Delhi83 (Brij Bhushan) whereby public
order was allied to security of thestate.84 Consequently, the amendment
was seen as a validation of the law of sedition. Since then, however, a clear
distinction has been drawn by courts between the terms public order and
security of the state.86 The difference, essentially, is one of degree. While
the terms have not been precisely defined, public order is synonymous with
public safety and tranquillity and has only local significance. Security of the
state, on the other hand, would involve a national upheaval such as
revolution, civil strife or war.87 Thus, an argument that a law justified in the
interest of public order would also consequently be justified in the interests
of the security of the state would not stand. Further, it would also be
difficult to argue that the law could be saved on the grounds of being in the
interests of public order.
Thus, in light of the clear distinction that has been drawn between public
order and security of the state in Ram Manohar Lohia, the courts have in
subsequent decisions on sedition imposed a disturbance of public order
requirement for the offence to be proved.90
83 Brij Bhushan v. State of Delhi, AIR 1950 SC 129 : (1950) 51 Cri LJ 1525.
84 Kedar Nath Singh v. State of Bihar, AIR 1962 SC 955, 29.
85 Id., 33 (The Court cited the decision in Debi Soren v. State, AIR 1954 Pat 254 to
support this
contention).
86 V.N. Shukla, Constitution Of India 135 (M.P. Singh, 2008).
87 Id.
88 Ram Manohar v. State of Bihar, AIR 1966 SC 740 : (1966) 1 SCR 709.
89 Id.
90 Balwant Singh v. State of Punjab, (1995) 3 SCC 214 : AIR 1995 SC 1785.
Autonomy Is As Autonomy Does- Law of Sedition in India, Hetal Chavda, LL.M.
Business laws, Imperial Journal of Interdisciplinary Research (IJIR), Vol-2, Issue-5,
2016, ISSN: 2454-1362

Romesh Thappar vs The State of Madras

Within 4 months of the Constitution of India coming into force, the newly established Supreme Court of India ruled
on the issue of sedition in two cases decided on the same day. In the matter of Romesh Thappar, a Constitution
Bench of the Apex Court held by a majority of 4:1 that Section 9(1-A) of the Madras Maintenance of Public Order
Act, 1949 violated the freedom of speech and expression guaranteed under Article 19(1)(a) of the Constitution. The
Apex Court also held in these cases that the offence of 'sedition' is an offence against public tranquility and order
also although Section 124A is to be found in the Chapter on Offences against the State and sits in the category of
other offences such as 'treason' and 'waging war against the State'. In response to these two judgments the Central
Government proceeded to amend Article 19(2) to insert "public order, decency and morality" as grounds for
restricting the exercise of free speech and expression through the very first amendment to the Constitution. The
amendment which contained several other grounds for restricting free speech and expression was made
applicable retrospectively.

The offence of sedition under section 124A is the doing of certain acts which would bring the
Government established by law in India into hatred or contempt, or create disaffection against it; Bilal
Ahmed Kaloo v. State of Andhra Pradesh, (1997)
Maneka Gandhi versus Union of India
In this case, the Apex Court held that the freedom of speech and expression is not confined to
geographical limitations and it carries with it the right of a citizen to gather information and to exchange
thought with others not only in India but abroad too. As per the judgment, criticizing and drawing general
opinion against policies and governmental decisions within a reasonable limit that does not incite people
to rebel is consistent with freedom of speech and expression.

THE current controversy over the ready resort to Section 124A of the IPC in the case of
Kanhaiya Kumar has once again revived the debate over the need to retain this provision in the
law. As a lawyer who appeared on his behalf in the Supreme Court last week, I would refrain
from going into the merits of the case against him. But it is necessary to state my position on the
debate, which started with Arundhati Roy and continued with Binayak Sen.
The offence of sedition is, of course, a legacy of the colonial era. But so is the entire Indian Penal
Code. And that by itself cannot be a relevant factor to decide if it should be retained. The section
finds place in Chapter VI of the code, which deals with Offences against the State. The other
significant offences under that chapter include waging, or attempting to wage war or abetting
waging of war against the Government of India (Section 121), collecting arms, etc. with
intention of waging war against the Government of India (Section 122), concealing with
intention to facilitate design to wage war (Section 123), assaulting the President, Governor, etc.
with intent to compel or restrain the exercise of any lawful power (Section 124), and facilitating
escape of prisoners of State or war (Sections 128-130).
Section 124A is the only section in the chapter whose primary focus is on speech. It is keeping
this aspect in mind that the Supreme Court read down this provision in 1962 in Kedar Naths
case to read it in a manner consistent with the provisions of the Constitution which guarantee
freedom of speech. That freedom is subject to reasonable restrictions under Article 19(2). But
those restrictions can only be in the interests of sovereignty and the 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. Since sedition was not

a ground on which freedom of speech could be restricted, the offence of sedition itself had to be
revisited in the light of the permissible restrictions under Article 19(2).
And so, the Supreme Court said in Kedar Naths case that mere speech would not be sedition if
Section 124A was to be sustained. There has to be an element of incitement to violence. If that
was established, it would lead to public disorder and would therefore not enjoy constitutional
protection.
Thirty-three years later, the Supreme Court in Balwant Singhs case found that the raising of proKhalistan slogans without overt acts would not constitute sedition. The legal scholar, Gautam
Bhatia, has argued convincingly that if the question of the constitutional validity of Section 124A
were to come up before the Supreme Court again, it could be persuaded in the light of one preKedar Nath and two post-Kedar Nath decisions that its earlier view on the validity of the section
was wrong.
But that is not likely to happen in the foreseeable future. It is even more unrealistic to think in the
present security situation in India that Parliament will even consider repealing the provision; or if
such a move will even find support from any political party. Even otherwise, no party would like
to lose a weapon which it can use when it comes to power. It must, however, be remembered that
all civil liberties and fundamental freedoms, including freedom of speech, can survive and thrive
only when the State exists. And therefore any activity which jeopardises the continuance of the
State is serious enough to warrant being treated as an offence, and a grave one at that.
Unfortunately, its misuse trivialises something serious. The fact that the offence has recently
been done away with in the country which brought it into our law is of little relevance in the
Indian context: that country has recently seen a referendum on Scotland!
The fact that a law is frequently misused is not a ground for repealing it if it serves a legitimate
and important purpose otherwise. Businessmen are often harassed by those with whom they have
transactions, by getting criminal cases of cheating registered against them. Mothers and fathersin-law get dragged into dowry harassment cases when things go wrong between couples. Men
who have been in serious relationships have had rape cases foisted on them when relationships
have soured. Can it be argued, on the basis of these undeniable facts, that the offences of
cheating, harassment for dowry or rape should not exist on the statute-book?
But there is a solution, and that solution can be worked out by the Supreme Court in a properly
constituted petition seeking safeguards, without having to wait for a petition challenging the
constitutional validity all over again, and without waiting for that petition to be referred to and
decided by a Constitution Bench. Another legal scholar, Lawrence Liang, perceptively notes that
while most sedition cases ultimately end in acquittal or fall through, the process itself is the
punishment. This process of harassment itself is a violation of a citizens right to liberty and
dignity under Article 21 of the Constitution.
The Alternative Law Forum has documented instances of sedition cases in recent years. These
include instances like that of Kahturam Sunani, a journalist who was booked in Sinapali, Orissa,
in 2007 for filing a report stating that Pahariya tribals were consuming soft dolomite stones in
Nuapada district due to acute hunger; Laxman Choudhury, a journalist who was booked in

Gajapati, Orissa, in 2009 for allegedly possessing Maoist literature; and Noor Muhammed Bhat,
a lecturer at Gandhi Memorial College, Srinagar, who was booked for setting a question paper
for English literature students on whether stone-pelters were the real heroes?
The Supreme Court has in the past laid down comprehensive guidelines on the exercise of the
power to arrest generally (Joginder Kumar, 1994 and Arnesh Kumar, 2014), pointing out that no
arrest can be made because it is lawful for the police to do so. The existence of the power to
arrest is one thing. The justification for the exercise of it is quite another. It is time someone
moves the Supreme Court to take note of all sedition cases that have come up over the years. It
would notice that these have largely been meant to stifle political criticism. The court must
pronounce its view on each of these instances and whether or not they amounted to sedition, and
lay down comprehensive guidelines. As the protector of the citizens fundamental rights, as the
sentinel on the qui vive, it must prevent the chilling effect on free speech. As with gay rights,
so with free speech: the ball is in the court of the court.

http://www.tribuneindia.com/news/comment/the-ball-is-in-the-court/199764.html; last visited on

21st July, 2016.
http://www.rmlnlu.ac.in/webj/sedition.pdf; Ankur Gupta, B.A.LL.B (Hons.) III Year, Dr Ram Manohar Lohiya
National Law University, Lucknow

As stated in KENNY- the Law of Sedition relates to the uttering of the seditious
words, the publication of seditious libels, and conspiracies to do an act for the
furtherance of a seditious intention. Sedition, whether by words spoken or written,
or by conduct, is a misdemeanor at common law punishable by fine and
imprisonment. Sir JAMES STEPHEN defined a seditious intention as 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 the constitution of the
United Kingdom 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 matters in Church or State by law
established..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. But an intention to show that his Majesty has been mislead or mistaken in
his measures to point out errors or defects in the government or constitution, as by
law established with a view to their reformation, or to excite his Majestys subjects
to attempt by lawful means the alteration of any matter in Church or State by law
established, or 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 classes of His
Majestys subjects, is not a seditious intention. It is the right of every citizen to
discuss public affairs fully and freely but such discussions must not be directed to
the incitement of unlawful acts or calculated to excite disaffection. In a twentieth
century prosecution for sedition, the Judge told the jury that they could take into
account the State of Public feelings. HALSBURY lays down: the essence of the
offence of treason lies in the violation of the allegiance owed to the sovereign.
Allegiance is due from all British subjects wherever they may be local allegiance is
owed by an alien under the protection of the crown so long as he is resident within

the realm and by a resident alien who goes abroad leaving his family or effects
within the realm or goes abroad in possession of a British Passport. An ambassador
who is not a subject of the State to which he is accredited does not owe any
temporary allegiance to that State.
In the case of Ram Nandan v. State of U.P.( AIR 1959 Alld. 101) The Honble High
Court held that section 124-A imposed restriction on the freedom of speech which is
not in the interest of the general public and hence declared 124-A as ultra vires. But
this decision of the Honble High Court was overruled by the Honble Supreme
Courtin the case of Kedarnath Das v. State of Bihar(AIR 1962 SC 955) , and held
Section 124-A, intra vires.
The constitutional 1st (Amendment) Act, 1951 added in Art 19 (2) two words of
widest import, wiz., in the interest of public order. Thereby including the
legislative restrictions on freedom of speech and expression. The advocates of the
other view held that section 124-A, of I.P.C is constitutional and is not in
contravention of Art 19(1) (a) as it is saved by the expression in the interest of
public order in Art 19(2). It has been stated that the expression in the interest of
public order is of wider connotation, and includes not only the Acts which are likely
to disturb public order but something more than that. In accordance with this
interpretation, section 124-A, I.P.C. has been held intra vires of the constitution. This
view found blessings from the Supreme Court in the case of Kedarnath v. State of
Bihar (supra) wherein it was held that any law which is enacted in the interest of
public order may be saved from the voice of constitutional invalidity.
The court had further observed in the Kedar Naths case that the right guaranteed
under Art 19(1) (a) is subject to such reasonable restriction as would come within
the purview of clause (2), to Art 19 which comprises (a) security of the State, (b)
friendly relations with foreign states, (c) public order, (d) decency or morality, etc.
with reference to the constitutionality of section 124-A, of the I.P.C, as to how far
they are consistent with the requirements of clause (2) of Art 19 with particular
reference to security of state and public order, the section, it must be noted
penalizes any spoken or written words or science or visible representations, etc,
which have the effect of bringing, or which attempt to bring into hatred or contempt
or excite or attempt to excite disaffection towards 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 would be in jeopardy, where the government established by law
is subverted.
The continued existence of the government established by law is an essential
condition of the stability of the state. Hence, any act within the meaning of section
124-A, which has 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 under lawful means used to express
disapprobation of the measures of the Government with the view to their
improvement or alteration 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
the those acts or measure by lawful means that is to say, without exciting those
feelings of enmity and disloyalty which imply excitation to public disorder or the use
of violence. This section requires two essentials:- 1. Bringing or attempting to bring
into hatred or contempt or exciting or attempting to excite disaffection towards, the
Government of India. 2. Such act or attempt may be done (i) by words, either
spoken or written, or (ii) by signs, (iii) by visible representation.
In a charge under section 124-A of the penal code, the prosecution must prove to
the hilt that the intention of the writer or the speaker, whoever he may be, is to
bring into hatred or contempt or excite or attempt to excite disaffection towards the
Government established by law in British India. The essence of the crime of
sedition, therefore, consists in the intention with which the language is used and
what is rendered punishable by section 124-A of the penal code is the intentional
attempt, successful or otherwise, the rouse as against Government the feelings
enumerated in the section, a mere tendency in an Art. to promote such feelings is
not sufficient to justify a conviction; in other words, the prosecution must bring
home to the accused that his intention was as is described in the section itself.
( Satyaranjan Bakshi v. Emperor (AIR 1927 Cal 698)).
The essence of the offence of sedition under section 124-A, I.P.C., is the intention
with which the language of a speech is used and that intention has to be judged
primarily from the language itself. In forming an opinion as to the character of
speech charged as sedition, the speech must be looked at and taken as a whole,
freely and fairly, without giving undue weight to isolated passages and without
pausing upon an objectionable sentence here or a strong word there, and, in judging
of the intention of the speaker, each passage, should be considered in connection
with the others and with the general drift of the whole.( Hanumanthaiya v. Govt of
Mysore, (1948) 52 Mys HCR 265.)
A speech suggesting generally that the Govt. established by law in India was
thoroughly dishonest and unfair and that steps should be taken either by violence or
by threat of violence to abolish it, comes within the provisions of section 124- A.
(Paramanand v. Emperor, AIR 1941 All 156, 1941 All LJ 26, 42 Cr LJ 46.)
The gist of the offence under section 124-A lies in the intention of the writer to bring
into hatred and contempt the Government and is not to be gathered from isolated
or stray passages here and there but from a fair and generous reading of the article
as a whole. Further, in gathering the intention allowance must be made for a certain
amount of latitude for writers in the public press.( Ramchandra v. Emperor, 29 Cr LJ
381 (Lah)).

The offence does not consist in 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 the publication of seditious articles is absolutely
immaterial. If the accused intended by the articles to excite rebellion or disturbance,
his act would doubtless fall within this section, and would probably fall within other
sections of the penal code. If he tried to excite feelings of hatred or contempt
towards the Government, that is sufficient to make him guilty under this section.
( Bal Gangadhar Tilak, (1897) 22 Bom 112)
The Federal Court of India had, however, held that the gist of the offence of sedition
is incitement to violence; mere abusive words are not enough.( Niharendra Dutt
Majumdar, (1942) FCR 38)
In cases under Section 124-A, I.P.C., the Courts have not to see the effect on the
mind of the people and they are concerned with the construction of the speech, and
the speech has to be taken as a whole and not just in pieces. A man may criticize or
comment upon any measure or act of the Govt. and freely express his opinion upon
it. He may express condemnation but so long as he confines himself to that he will
be protected, but if he goes beyond that he must pay the penalty for it. The
question of intention is always an important factor in such cases.( Vishambhar
Dayal v. Emperor; AIR 1941 Oudh 33)
the Supreme Court in Kedar Naths case, wherein SINHA, C.J. observed comments,
however strongly worded expressing, disapprobation of actions of Govt., 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 Govt. established
by law is not the same thing as commenting in strong terms upon the measures or
acts of Govt. 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 or disloyalty which imply
excitement to public disorder or the use of violence. In this very case it was further
held that viewed in the context of antecedent history of the legislation, its purpose
and the mischief it seeks to suppress the provisions of S. 124-A and S. 505 of the
Indian Penal Code should be limited in their application to acts involving intention or
tendency to create disorder or disturbance of law and order or incitement to
violence. In order to sustain a conviction under section 124-A, it must be proved (a)
that the accused spoke the words in question, (b) that he thereby brought or
attempted to bring into hatred or contempt or excites or attempts to excite
disaffection, and (c) that such disaffection was towards the Govt. established by law
in India.
In view of section 196, Cr.P.C., 1973 no Court shall take cognizance of any offence
punishable under chapter VI or a criminal conspiracy to commit such offence except
with the previous sanction of the Central Government or of the State Govt. Section
196, Cr.P.C. reserves to the State Govt. the power of determining whether
cognizance shall be taken by the Court of any of the offences enumerated in that
Section. When the question is only of the machinery for the institution of the
proceedings and not of the mischief which Section 196 is designed to prevent, it is a
mere irregularity not an illegality which would vitiate the proceedings.

REGARDING BURNING PUBLIC PROPERTY

http://www.newindianexpress.com/nation/Those-Who-Burn-PublicProperty-Will-Pay-SC/2016/02/25/article3295455.ece
The Supreme Court on Thursday expressed concern over damage to public and private properties
during violent protests and said it would lay down parameters to fix accountability for losses on
organisers as the country cannot be held to ransom.
An apex court bench headed by Justice J S Khehar said, The country must know what are the
consequences. No one can take the country to ransom during agitations. Whether it is the BJP,
the Congress or any other organisation, they must realise that they can be held accountable for
the damages to public property. The court was hearing of a plea of Gujarat Pattidar leader
Hardik Patel.
The benchs remarks assumes significance in the wake of large-scale violence and loss of public
and private properties in Haryana during the Jat quota stir.
Where is our country going? You just cannot burn the countrys or its citizens properties.
Whether its BJP or Congress or whichever organisation or party it is, it may be asked to pay for
the property damaged. They will collect the money and pay for the damages, the bench said
adding, We must take a call on the issue and we would frame guidelines for taking action
against people indulging in such acts.
The bench said it will lay down parameters for fixing the accountabilities for the damage caused
to the public and private properties during agitations. The court said that it has decided to look
into the larger issue of damage to public and private property.

The offence of sedition is an offence against the State. As understood in England the crime of sedition fell
short of actual treason, and did not involve the actual use of force or violence.The following passage from
the address to the Jury by Fitzerald, J., in the case of Reg v. Alexander Martin Sullivan is useful to
understand the meaning of the crime of sedition as it was understood under the British Empire.

"Sedition is a crime against society, nearly allied to that of treason, and it frequently precedes treason by
short interval. Sedition in itself is a comprehensive term, and it embraces all those practices, whether by
word, deed or writing, which are calculated to disturb the tranquility of the State, and lead ignorant
persons to endeavour to subvert the Government and the laws of the empire. The objects of sedition
generally are to induce discontent and insurrection and stir up opposition to the Government, and bring
the administration of justice into contempt; and the very tendency of sedition is to incite the people to
insurrection and rebellion. Sedition has been described, as disloyalty in action and the law considers as
sedition all those practices which have for their object to excite discontent or dissatisfaction, to create

public disturbance, or to lead to civil war; to bring into hatred or contempt the Sovereign or the
Government, the laws or constitution of the realm, and generally all endeavours to promote public
disorder."
The Supreme Court in Kedar Nath clarified that the crime of sedition was a crime against the State and
was intended to protect the very existence of the State. The purpose of the crime of sedition was to
prevent the Government established by law from being subverted because the continued existence of the
Government established by law is an essential condition of the stability of the State. It clarified that
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 is not sedition. The Supreme Court clarified that 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. As a result, the Supreme Court
expressly sided with the interpretation of sedition by the Federal Court in Niharendu Dutt and stressed
that incitement to violence or the tendency or the intention to create public disorder was also an
essential ingredient of the offence of sedition. The Supreme Court expressly rejected a literal
interpretation of Section 124A. It also expressly rejected the Privy Council interpretation which did not
require the prosecution to establish incitement to violence or the tendency or the intention to create public
disorder as an essential ingredient of the offence of sedition. The Supreme Court justified this stand by
pointing out that the crime of sedition was a crime against the security of the State, which depends upon
the maintenance of law and order and that acts (spoken words) which did not have the tendency to
disorder or intention to create disturbance of law and order would not amount to sedition even if such
acts/ words create disaffection or feelings of enmity against the Government. In order to leave no doubt
as to its ruling, the Supreme Court further stated that section 124A hits only those activities as would be
intended, or have a tendency, to create disorder or disturbance of public peace by resort to violence. The
Kedar Nath ruling later refers to this as acts involving intention or tendency to create disorder, or
disturbance of law and order, or incitement to violence.
http://www.legallyindia.com/blogs/a-closer-reading-of-the-supreme-court-of-india-decision-in-kedar-nathsingh-vs-state-of-bihar-1962-on-the-offence-of-sedition-defined-in-section-124a-ipc

The new constitution of India envisaged a parliamentary system of

government. Criticism of the government by members of the opposition,
public and the press was to be an important part of the system[AIR 1942 FC
22.]. In such a situation the final interpretation of S. 124A given by the Privy
Council would impose an unreasonably harsh restriction on the new
fundamental right to the freedom of speech and expression. The
interpretation given by the Federal Court would clearly have been preferred,

but for the fact that it had been overruled by the Privy Council[(1947) 74 IA
89.].
With this in mind it was felt to be appropriate that sedition be left out of
Article 19(2), which laid down the restrictions on the right to freedom and
expression guaranteed in Article 19(1)(a). However, this did not mean that
seditious speech was within the ambit of the free speech right. Due to the
ambiguity in the meaning of sedition in the Code, the word itself was omitted
from the draft articles. Instead, certain terms such as security of the state,
public order, and incitement to offence were used to cover the same
subject matter without the actual use of the word sedition.
http://legalsutra.com/1025/sedition/; last visited on 30 July, 2016.

A statute cannot be struck down merely because the court thinks it to be

arbitrary or unreasonable. Any such ground of invalidity must be strongly
related to a Constitutional provision. In the case of Mylapore Club v. State of
Tamil Nadu46 the Court held that challenge on the grounds of wisdom of
legislation is not permissible as it is for the legislature to balance various
interests. The legislature appreciates and understands the needs of the
people, that it knows what is good or bad for them, that the laws it enacts
are directed to problems which are manifest by experience that the elected
representatives in a legislature enact laws which they consider to be
reasonable for the purposes for which these laws are enacted and that a
legislature would not deliberately flout a constitutional safeguard or right.47
46 Mylapore Club v. State of Tamil Nadu, (2005) 12 S.C.C. 752.
47 Bachan Singh v. State of Punjab, A.I.R. 1982 S.C. 1325.

The power to legislate is a plenary power vested in the legislature and unless
those who challenge the legislation clearly establish that their fundamental
rights under the Constitution are affected or that the legislature lacked
legislative competence, they do not succeed in their challenge to the
enactment brought forward in the wisdom of legislature. A statute carries
with itself a presumption of constitutionality. A further presumption may also
be drawn that the statutory authority would not exercise the power
arbitrarily. In the case of State of Andhra v. McDowell & Co.,48 the Court held
that a Court cannot sit in judgment over the wisdom of the Legislature.
Therefore usually the presumption is in the favor of the Constitutionality of
the statute and the onus to prove that it is unconstitutional lies upon the
person challenging it.49
48 State of Andhra v. McDowell & Co., A.I.R. 1996 S.C. 1628.
49 Charanjit Lal Chowdhary v. Union of India, A.I.R. 1951 S.C. 41.

The possession and enjoyment of all rights subject to reasonable restriction

as may be deemed to be essential on certain grounds is the true essence of
a democracy. The Constitution therefore attempts to strike a balance
between individual rights and social control. Article 19 of the Constitution
gives various individual liberties to the individuals and places restraints upon
them in various clauses by law so that they do not interfere with the public
welfare and general morality.51 It is humbly submitted that where there arises
a need to maintain and preserve freedom of speech and expression, there
also arises a responsibility on the part of the state to place some curbs on
the freedom for the maintenance of social order.
51 Gopalan v. State of Madras, (1950) S.C.R. 88 (253-4).
The court held in the case of Santosh Singh v. Delhi Administration 52, it was
held that the test of reasonableness of restriction has to be considered in
each case in the light of the nature of right infringed, the purpose of the
restriction, the extent and the nature of the mischief required to be
suppressed and the prevailing social order and conditions at the time. There
can be no abstract standard of reasonableness and our constitution provides
reasonably precise general guidance in this matter. As it is stated earlier,
individual rights in a welfare state cannot be absolute. When a law is
impugned as having imposed a restriction upon a Fundamental Right, what
the Court has to examine is the substance of the legislation without being
beguiled by the mere appearance of the legislation. 53 If the legislation
indirectly or incidentally affects a citizens right under Article 19(1) it will not
introduce any infirmity to the validity of the legislation.54
Individual rights cannot be absolute in a welfare state. It has to be subservient
to the Rights of the public at large. 55 The right of life and liberty so guaranteed
under Article 21 is also subject to the rule of proportionality. 56 Liberty is the right
of doing an act which the law permits. 57 Liberty is confined and controlled by law
as it is regulated freedom. It is not an abstract or absolute freedom. The
safeguard of liberty is in the good sense of the people and in the system of
representative and responsible Government which has been evolved. Liberty is
itself the gift of law and may bye law be forfeited or abridged. 58

52 Santosh Singh v. Delhi Administration, A.I.R. 1973 S.C. 1091.

53 Express Newspapers v. Union of India, A.I.R. 1958 S.C. 578; Bennett
Coleman & Co. Ltd. v. Union of India,
A.I.R. 1973 S.C. 106.
54 Hamdard Dawakhana v. Union of India, A.I.R. 1960 S.C. 554.
55 Confederation of Ex-serviceman Association v. Union of India, (2006) 8 S.C.C.
399.
56 Om Kumar v. Union of India, (2001) 2 S.C.C. 386.
57 Kartar Singh v. State of Punjab, (1994) 3 S.C.C. 569.
58 A.D.M. Jabalpur v. Shivkant Shukla, A.I.R. 1976 S.C. 1207.

The limitation imposed in the interest of public order to be a reasonable restriction,

should be one which has a proximate connection and a reasonable connection.59 It
must be rationally proximate and direct to be called reasonable once the connection
between the restrictive legislation and the permissible ground is rational, the
Legislature has the discretion as to the expediency of the stage at which the
restriction is to be applied. Thus, it is not prevented from providing against
threatened or apprehended injury as distinguished from actual injury.60
Under Article 19(2), a restriction can be imposed in the interests of public order,
etc. The expression in the interests of gives a greater leeway to the legislature to
curtail freedom of speech and expression, for a law penalising activities having a
tendency to cause, and not actually causing public disorder, may be valid as being
in the interests of public order. However, the restrictions imposed must have a
reasonable and rational relation with the public order, security of state, etc.
The Apex Court has held that Penal laws which define offences and prescribe
punishments for the commission of offences do not attract Article 19(1) as these are
not laws having a direct impact on the Rights conferred by Article 19(1). A law is hit
by article 19 if the direct and inevitable consequence of such law is to take away or
abridge any of the freedoms guaranteed by Article 19(1). If the impact of the law on
any of the Rights under Article 19(1) is merely incidental, indirect, remote, or
collateral and is dependent upon factors which may or may not come into play, the
anvil of Article 19 will not be available for judging its validity.
In pith and substance, penal laws do not attract article 19(1) as these laws do not
deal with the subject matter of Article 19(1). In the instant case, therefore, Article
66 A, being a penal law, cannot be said to attract Article 19(1) as its impact, if at all
any, on the freedom of speech and expression is incidental, indirect and very
remote. The word reasonable implies intelligent care and deliberation, that is, the
choice of a course which reason directs.61 The lists of reasonableness have to be
viewed in context of the issues which faced the Legislature. In the construction of
such laws and in judging their
validity, Courts must approach the problem from the point of view of furthering the
social interest which is the purpose of the Legislation to promote.62
It is, therefore, humbly submitted that Article 66 A has a direct and proximate nexus
to its object i.e. maintenance of public order. It is a regulatory measure which, interalia provides against threatened or apprehended injury. It has a direct nexus to
preservation of public tranquillity, as it can be used to prevent electronic
communication from inflaming the public or a group of people, thus destroying or
hampering public order, via designs such as mass hate-messages, criminal
intimidation etc. Therefore, even if it operates harshly in isolated cases, its ultimate
object is the maintenance of public order and safety, to which it has a direct and
proximate nexus.
59 Arunachala Nadar, M.C.V.S. v. State of Madras, A.I.R. 1959 S.C. 300 (303).
60 Virendra v. State of Punjab, A.I.R. 1957 S.C. 896.

61 Janath Mosque v. Vakhon Joseph, A.I.R. 1955 T.C. 227 (F.B.).

62 Municipal Corporation, City of Ahmedabad v. Jan Mohd. Usmanbhai, A.I.R. 1986
S.C. 1205.
The question whether the provisions of the Act provide reasonable safeguards
against the abuse of the power given to the executive authority to administer the
law is not relevant for the true interpretation of the clause.64 Where the vesting of
discretionary power by the Legislature is justified, the mere possibility of abuse of
power by the Executive is no test for determining the reasonableness of the
restriction imposed by the law.65 If, however, the statutory power or discretion is
shown to have been abused by the authorities, the person aggrieved shall have his
remedy against the illegal order66, but that would be no ground for invalidating the
Statute itself.67 In Municipal Committee v. State of Punjab, it was held that a law
cannot be struck down as in violation of a Fundamental Right merely on the ground
that it is vague.68
64
65
66
67
68

Arunachala v. State of Madras, A.I.R. 1959 S.C. 300 (303).

Khare v. State of Delhi, A.I.R. 1950 S.C. 211.
Virendra v. State of Punjab, A.I.R. 1957 S.C. 896.
Harishankar Bagla v. State of Madhya Pradesh, A.I.R. 1954 S.C. 465.
Municipal Committee v. State of Punjab, (1969) 1 S.C.C. 475.

Rebuttal regarding the s.196 Cr.P.C

In Pastor P. Rajus case, this Court referred to the provisions of Chapter XIV and
Sections 190 and 196 (1-A) of the CrPC and observed : There is no bar against
registration of a criminal case or investigation by the police agency or submission of
a report by the police on completion of investigation, as contemplated by Section
173 CrPC. If a criminal case is registered, investigation of the offence is done and
the police submits a report as a result of such investigation before a Magistrate
without the previous sanction of the Central Government or of the State
Government or of the District Magistrate, there will be no violation of Section 196(1A) CrPC and no illegality of any kind would be committed. The Court then referred
to some of the precedents including the judgment in Mohd. Khalids case and
observed : It is necessary to mention here that taking cognizance of an offence is
not the same thing as issuance of process. Cognizance is taken at the initial stage
when the Magistrate applies his judicial mind to the facts mentioned in a complaint
or to a police report or upon information received from any other person that an
offence has been committed. The issuance of process is at a subsequent stage
when after considering the material placed before it the court decides to proceed
against the offenders against whom a prima facie case is made out.

On page 5 the final report was filed against three and then the magistrate
took cognizance that means that the sanction was granted before the
cognizance of the magistrate and thus it is purely legal.

Criminal Conspiracy
1 )Make use of the IPC book and take down the necessary features for the offence of criminal
conspiracy.
2) From fact sheet criminal conspiracy can be observed in two key points.
A) On page 3 the para of The rally was attended by 30000 people, shows that the members of
the Hogwarts party mobilized the public to protest.
B) page 2. A supporter of the remark. It shows the speech on the supporters part. Criminal
Conspiracy.
44. What is the meaning of the term "conspiracy"?
In HALSBURY'S LAWS of England (vide 4th Edn. Vol.11, page 44, page 58), the
ENGLISH LAW as to conspiracy has been stated thus:
"58. Conspiracy consists in the agreement of two or more persons to do an unlawful
act, or to do a lawful act by unlawful means. It is an indictable offence at common
law, the punishment for which is imprisonment or fine or both in the discretion of
the Court.
The essence of the offence of conspiracy is the fact of combination by agreement.
The agreement may be express or implied, or in part express and in part implied.
The conspiracy arises and the offence is committed as soon as the agreement is
made; and the offence continues to be committed so long as the combination
persists, that is until the conspiratorial agreement is terminated by completion of its
performance or by abandonment or frustration or however, it may be. The actus
reus in a conspiracy is the agreement to execute the illegal conduct, not the
execution of it. It is not enough that two or more persons pursued the same
unlawful object at the same time or in the same place; it is necessary to show a
meeting of minds, a consensus to effect an unlawful purpose. It is not, however,
necessary that each conspirator should have been in communication with every
other."
45. The ENGLISH LAW on this matter is well settled. RUSSELL on crime (12 Ed.Vol.I,
p.202) may be usefully noted:
The gist of the offence of conspiracy then lies, not in doing the act, or effecting the
purpose for which the conspiracy is formed, nor in attempting to do them, nor in
inciting others to do them, but in the forming of the scheme or agreement between
the parties, agreement is essential. Mere knowledge, or even discussion, of the plan
is not, per se, enough."

47. DR. SHRI HARI SINGH GOUR in his well known 'COMMENTARY ON PENAL LAW OF
INDIA', (Vol.2, 11th edn., p.1138) summed up the legal position in the following
words:
"In order to constitute a single general conspiracy there must be a common design.
Each conspirator plays his separate part in one integrated and united effort to
achieve the common purpose. Each one is aware that he has a part to play in a
general conspiracy though he may not know all its secrets or the means by which
the common purpose is to be accomplished. The evil scheme may be promoted by a
few, some may drop out and some may join at a later stage, but the conspiracy
continues until it is broken up. The conspiracy may develop in successive stages.
There may be general plan to accomplish the common design by such means as
may from time to time be found expedient."
51. The Apex Court in E.G. BARSAY V. STATE OF BOMBAY reported in AIR 1961 SC
1762, held as under:
"The gist of the offence is an agreement to break the law. The parties to such an
agreement will be guilty of criminal conspiracy, though the illegal act agreed to be
done has not been done. So too, it is an ingredient of the offence that all the parties
should agree to do a single illegal act. It may comprise the commission of a number
of acts. Under Section 43 of the Indian Penal Code, an act would be illegal if it is an
offence or if it is prohibited by law."
52. The Supreme Court in the case of YASH PAL MITTAL V. STATE OF PUNJAB reported
in (1977) 4 SCC 540 laid as follows at page 543, para 9.

"The very agreement, concert or league is the ingredient of the offence. It is not
necessary that all the conspirators must know each and every detail of the
conspiracy as long as they are co- participators in the main object of the conspiracy.
There may be so many devices and techniques adopted to achieve the common
goal of the conspiracy and there may be division of performances in the chain of
actions with one object to achieve the real end of which every collaborator must be
aware and in which each one of them must be interested. There must be unity of
object or purpose but there may be plurality of means sometimes even unknown to
one another, amongst the conspirators. In achieving the goal several offences may
be committed by some of the conspirators even unknown to the others. The only
relevant factor is that all means adopted and illegal acts done must be and
purported to be in furtherance of the object of the conspiracy even though there
may be sometimes misfire or overshooting by some of the conspirators."
53. The Apex Court in the case of MOHD. USMAN MOHAMMAD HUSSAIN MANIYAR
AND ORS. V. STATE OF MAHARASHTRA reported in (1981) 2 SCC 443, held that for
an offence under Section 120B IPC, the prosecution need not necessarily prove that
the conspirators expressly agreed to do or cause to be done the illegal act, the
agreement may be proved by necessary implication.

EVIDENCE OF CONSPIRACY
65. There is no difference between the mode of proof of the offence of conspiracy
and that of any other offence, it can be established by direct or circumstantial
evidence. Privacy and secrecy are pre-dominant characteristics of a conspiracy
rather than a loud discussion in an elevated place open to public view. Generally, a
conspiracy is hatched in secrecy and it may be difficult to adduce direct evidence of
the same. Direct evidence in proof of a conspiracy is seldom available. It is not
always possible to give affirmative evidence about the date of the formation of the
criminal conspiracy, about the persons who took part in the formation of the
conspiracy, about the object which the objectors set before themselves as the
object of conspiracy, and about the manner in which the object of conspiracy is to
be carried out. All this is necessarily a matter of inference. The prosecution will
often rely on evidence of acts of various parties to infer that they were done in
consequence of their common intention. The prosecution will also more often rely
upon circumstantial evidence. The conspiracy can be undoubtedly proved by such
evidence direct or circumstantial. But the Court must enquire whether the two
persons are independently pursuing the same end or they have come together to
the pursuit of the unlawful object. The former does not render them conspirators,
but the latter does. It is however, essential that the offence of conspiracy requires
some kind of physical manifestation of agreement. The express agreement,
however, need not be proved. Nor actual meeting of two persons is necessary. Nor it
is necessary to prove the actual words of communication. The evidence as to
transmission of thoughts sharing the unlawful design may be sufficient under given
set of circumstances of an individual case.

66. In order to prove a criminal conspiracy which is punishable under Section 120-B
there must be direct or circumstantial evidence to show that there was an
agreement between two or more persons to commit an offence. It is to be proved
largely on the inferences drawn from illegal act or omissions committed by the
conspirators in pursuance of common design- which has been properly proved.
Conspiracy may be proved by necessary implication. The direct evidence will be
seldom forthcoming and it is, therefore, necessary to look at the circumstances to
see whether a conspiracy actually existed which is largely inferential. Of sheer
necessity this section has to be read in conjunction with Section 10 of the Indian
Evidence Act. Section 10 of the Evidence Act introduces the doctrine of agency and
if the conditions laid down therein are satisfied, the act done by one is admissible
against the co- conspirators. But this section will come into play only when the
Court is satisfied that there is reasonable ground to believe that two or more
persons have conspired together to commit an offence or an actionable wrong, that
is to say, there should be a prima facie evidence that a person was a party to the
conspiracy before his acts can be used against his co-conspirators. Once such a
reasonable ground exists, anything said, done or written by one of the conspirators
in reference to the common intention, after the said intention was entertained is
relevant against the others not only for the purpose of proving the existence of the
conspiracy but also for proving that the other person was a party to it.

68. In KEHAR SINGH AND ORS. V. THE STATE (DELHI ADMINISTRATION) reported in
AIR 1988 SC 1883 AT P. 1954, the Apex Court observed as under:
"275. Generally, a conspiracy is hatched in secrecy and it may be difficult to adduce
direct evidence of the same. The prosecution will often rely on evidence of acts of
various parties to infer that they were done in reference to their common intention.
The prosecution will also more often rely upon circumstantial evidence. The
conspiracy can be undoubtedly proved by such evidence direct or circumstantial.
But the court must enquire whether the two persons are independently pursuing the
same end or they have come together in the pursuit of the unlawful object. The
former does not render them conspirators, but the latter does. It is, however,
essential that the offence of conspiracy required some kind of physical
manifestation of agreement. The express agreement, however, need not be proved.
Nor actual meeting of the two persons is necessary. Nor it is necessary to prove the
actual words of communication. The evidence as to transmission of thoughts
sharing the unlawful design may be sufficient."

69. The Apex Court, in the case of 'NAZIR KHAN & ORS. v. STATE OF DELHI' reported
in 2003 SCC (Crl) 2033 has held as under:

"15. xxxx No doubt, in the case of conspiracy there cannot be any direct evidence.
The ingredients of offence are that there should be an agreement between persons
who are alleged to conspire and the said agreement should be for doing an illegal
act or for doing by illegal means an act which itself may not be illegal. Therefore,
the essence of criminal conspiracy is an agreement to do an illegal act and such an
agreement can be proved either by direct evidence or by circumstantial evidence or
by both, and it is a matter of common experience that direct evidence to prove
conspiracy is rarely available. Therefore, the circumstances proved before, during
and after the occurrence have to be considered to decide about the complicity of
the accused.
71. The essential ingredient of the offence of criminal conspiracy is the agreement
to commit an offence. In a case where the agreement is for accomplishment of an
act which by itself constitutes an offence, then in that event no overt act is
necessary to be proved by the prosecution because in such a situation, criminal
conspiracy is established by proving such an agreement. Where the conspiracy
alleged is with regard to commission of a serious crime of the nature contemplated
in Section 120B read with the proviso to sub-section (2) of Section 120A, then in
that event mere proof of an agreement between the accused for commission of
such a crime alone is enough to bring about a conviction under Section 120B and
the proof of any overt act by the accused or by any one of them would not be
necessary. The provisions, in such a situation, do not require that each and every
person who is a party to the conspiracy must do some overt act towards the
fulfillment of the object of conspiracy. The essential ingredient being an agreement
between the conspirators to commit the crime and if these requirements and

ingredients are established, the act would fall within the trappings of the provisions
contained in Section 120B. Conspiracies are not hatched in the open, by their
nature, they are secretly planned, they can be proved even by circumstantial
evidence, the lack of direct evidence relating to conspiracy has no consequence.
WAGING WAR (Section 121 IPC)
57. The Apex Court in the case of 'DEVENDER PAL SINGH v. STATE OF NCT OF DELHI'
reported in 2002 SCC (Crl) 978 has held as under:
40. The elements of a criminal conspiracy have been stated to be: (a) an object to
be accomplished, (b) a plan or scheme embodying means to accomplish that object,
(c) an agreement or understanding between two or more of the accused persons
whereby they become definitely committed to cooperate for the accomplishment of
the object by the means embodied in the agreement, or by any effectual means, (d)
in the jurisdiction where the statute required an overt act. The essence of a criminal
conspiracy is the unlawful combination and ordinarily the offence is complete when
the combination is framed. From this it necessarily follows that unless the statute so
requires, no overt act need be done in furtherance of the conspiracy, and that the
object of the combination need not be accomplished, in order to constitute an
indictable offence. Law making conspiracy a crime is designated to curb
immoderate power to do mischief which is gained by a combination of the means.
The encouragement and support which co-conspirators give to one another
rendering enterprises possible which, if left to individual effort, would have been
impossible, furnish the ground for visiting conspirators and abettors with condign
punishment. The conspiracy is held to be continued and renewed as to all its
members wherever and whenever (See American Jurisprudence, Vol.II, Section 23,
p.559) For an offence punishable under Section 120-B, the prosecution need not
necessarily prove that the perpetrators expressly agree to do or cause to be done
an illegal act; the agreement may be proved by necessary implication. Offence of
criminal conspiracy has its foundation in an agreement to commit an offence. A
conspiracy consists not merely in the intention of two or more, but in the agreement
of two or more to do an unlawful act by unlawful means. So long as such a design
rests in intention only, it is not indictable. When two agree to carry it into effect, the
very plot is an act in itself, and an act of each of the parties, promise against
promise, actus contra actum, capable of being enforced, if lawful, punishable if for a
criminal object or for use of criminal means.

63. The offence of criminal conspiracy under Section 120-A is a distinct offence. The
conspiracy to commit a crime and the crime itself are two different offences.
Conspiracy precedes the commission of crime and is complete before the crime is
attempted or completed. The very agreement, concert or league is the ingredient of
the offence. The offence of criminal conspiracy is complete as soon as two or more
persons agree to do or cause to be done an illegal act, or an act which is not illegal
by illegal means. It is immaterial whether the illegal act is the ultimate object of
such an agreement or is merely, incidental to that object. The agreement in itself is
enough to constitute the offence.

91. The Apex Court in the case of NAZIR KHAN AND OTHERS V/S. STATE OF DELHI
reported in (2003)8 SCC 461 at para 37 has held as under:

Section 124-A 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 tranquillity 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 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.