Kedar Nath Singh v State of Bihar (1962) — sedition read down, and what s. 152 BNS now says

Every question on "sedition" or on s. 152 is really a question about one line: where does strong criticism of Government end and a crime against the State begin? Kedar Nath is the case that drew that line under the IPC, and the drafters of s. 152 built its Explanation on that line. You cite it for the test, and you use s. 152's own words to show how the Sanhita has moved.

Kedar Nath Singh, a member of the Forward Communist Party, was prosecuted before a Magistrate at Begusarai in Monghyr district, Bihar, for a speech at village Barauni on 26 May 1953. The charge set out the words: that "the dogs of the C.I.D." were loitering round Barauni; that the people of India had driven out the British and "elected these Congress goondas to the gaddi", that they would strike and turn out the Congress goondas too, and that "these official dogs will also be liquidated". He was convicted under IPC ss. 124A and 505. His appeal (Criminal Appeal 169 of 1957) came to the Supreme Court along with three appeals by the State (124–126 of 1958) in which the High Court had held s. 124A void. Sinha C.J. delivered the judgment of the Constitution Bench on 20 January 1962.

Whether IPC ss. 124A and 505 had become void under Article 19(1)(a) of the Constitution — the guarantee of free speech — or were saved by Article 19(2) as reasonable restrictions in the interests of public order.

The Court found two competing interpretations on the books. The Federal Court in Niharendu Dutt Majumdar (1942 FCR 38) had held that a tendency to disturb public order was a necessary ingredient of sedition. The Privy Council in King-Emperor v Sadashiv Narayan Bhalerao had disapproved that view and held that exciting disaffection was itself enough, with no need to show any tendency to disorder. The Court chose the Federal Court's reading, because it was the interpretation that would make the section constitutional.

Sections 124A and 505 were valid — but only on the narrower construction. Read as a whole with their Explanations, 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". The Explanations make clear that "criticism of public measures or comment on Government action, however strongly worded", is within reasonable limits and consistent with free speech. The law steps in only when words have "the pernicious tendency or intention of creating public disorder or disturbance of law and order". So construed, the section "strikes the correct balance between individual fundamental rights and the interest of public order". Adopting the older formulation, the Court accepted that "public disorder, or the reasonable anticipation or likelihood of public disorder, is thus the gist of the offence". The Court also drew the old distinction between disaffection — "a feeling contrary to affection, in other words, dislike or hatred" — and disapprobation, which is mere disapproval and is never an offence.

Kedar Nath's own appeal (169 of 1957) was dismissed: no argument was advanced that, even on the narrow reading, his words fell outside it. The State's appeals (124–126 of 1958) were allowed and remanded to the High Court to be decided in the light of the Court's interpretation.

1. A penal provision touching speech is read, where two readings are open, in the way that keeps it within Article 19(2).
2. Sedition under the IPC required a tendency or intention to create public disorder by resort to violence or incitement to violence; exciting dislike of the Government, without that tendency, was not enough.
3. Criticism of Government, however strong, is disapprobation, not disaffection, and is protected.

• IPC s. 124A is gone. Its successor, s. 152, does not use the word "sedition" or the phrase "disaffection towards the Government". It punishes whoever "purposely or knowingly" excites or attempts to excite secession, armed rebellion or subversive activities, encourages feelings of separatist activities, or endangers the sovereignty or unity and integrity of India — with imprisonment for life or up to seven years, and fine.
• The Explanation to s. 152 carries Kedar Nath into the statute: comments expressing disapprobation of the measures or administrative action of the Government, with a view to obtain their alteration by lawful means, without exciting or attempting to excite the activities the section describes, do not constitute an offence.
• So the object of protection has shifted from the Government's standing to the State's integrity, and the mental element has been raised to purpose or knowledge — the tendency-to-violence reading that Kedar Nath had to supply by interpretation is now closer to the text.
• Companion sections: s. 196 (promoting enmity between groups) and s. 197 (imputations prejudicial to national integration) in Chapter XI cover the group-hatred ground that s. 152 does not.