Lawmaker, law-keeper, and lawbreaker are all sailing together: Adv S Balan speaks on ‘Other Perspectives of Sedition under IPC and UAPA’

Advocate S Balan delivered a critical lecture examining the legal mechanisms of Sedition under Section 124A of the Indian Penal Code and the Unlawful Activities Prevention Act, analyzing political defection jurisprudence, constitutional dissent protections, and private complaint procedures before Special NIA Courts under the Code of Criminal Procedure.

Colonial Genesis and Evolution of Sedition under Section 124A IPC

In an interactive symposium hosted by the Lawyers Institute for Empowerment, criminal defense advocate S Balan examined the enforcement of anti-state penal provisions in the Indian legal order. The offense of sedition under Section 124A of the Indian Penal Code, 1860 (IPC) traces its origin to colonial governance, having been drafted by Thomas Babington Macaulay and inserted into the penal code by Sir James Fitzjames Stephen in 1870. The historical objective was to suppress freedom movements and penalize political speech that brought disaffection against the British Crown.

In post-independence India, the constitutional validity of Section 124A was examined by a Constitution Bench of the Supreme Court in the landmark case Kedar Nath Singh v. State of Bihar (1962). The Supreme Court upheld the provision while reading down its application strictly to speech or writing that possesses an explicit intention or tendency to incite public disorder or armed rebellion. Strong words expressing disapprobation of governmental measures or political policies without inciting violence were held to be protected under Article 19(1)(a) of the Constitution.

Advocate Balan observed that despite the binding restrictions established in Kedar Nath Singh, Section 124A has frequently been invoked against political opponents, journalists, environmental campaigners, and civil society advocates. The persistent misuse of sedition charges led the Supreme Court of India in S.G. Vombatkere v. Union of India (2022) to direct an interim stay on all pending trials, appeals, and fresh registrations under Section 124A, directing central and state governments to refrain from applying the colonial statute pending legislative review.

Statutory Architecture and Stringent Provisions of the UAPA

Alongside Section 124A IPC, Advocate Balan evaluated the expanding footprint of the Unlawful Activities (Prevention) Act, 1967 (UAPA). Originally enacted to address secessionist movements threatening national integrity, successive legislative amendments in 2004, 2008, 2012, and 2019 expanded the statute into India's primary anti-terror legislation, incorporating terrorism chapters following the repeal of previous special laws such as TADA and POTA.

He focused on key definitions within the statute. Section 2(o) defines 'unlawful activity' broadly to include any action taken by an individual or association, whether by committing an act or by words spoken or written, which disclaims, questions, disrupts, or is intended to disrupt the territorial integrity and sovereignty of India, or which causes or is intended to cause disaffection against India. Section 2(p) defines an 'unlawful association' as any combination of persons declared as such by the Central Government under Section 3.

The penal chapters of the UAPA impose severe statutory penalties. Section 10 penalizes being a member of an unlawful association with imprisonment up to two years, which can extend to life imprisonment if death results from an unlawful act. Section 13 establishes penalties for committing unlawful activities, carrying terms of up to seven years. Furthermore, Section 17 criminalizes raising, collecting, or providing funds for terrorist acts or unlawful activities, while Section 18 punishes criminal conspiracy, abetment, and preparatory acts.

The most contentious operational dimension of the UAPA remains Section 43D(5), which precludes the grant of bail if the court, on perusal of the police case diary or charge sheet, is of the opinion that reasonable grounds exist for believing that the accusation against the accused is prima facie true. This statutory bar reverses the standard presumption of bail in regular criminal law, resulting in prolonged incarceration of undertrials prior to the culmination of trial proceedings.

Applying Unlawful Activity Definitions to Political Defection

Advocate Balan articulated a provocative legal hypothesis: applying the statutory frameworks of unlawful assembly, financial inducement, and criminal conspiracy to corrupt political defection and illicit government destabilization. Drawing examples from recent political crises in Karnataka, Goa, and Madhya Pradesh, he analyzed how organized groups orchestrate the overthrow of democratically elected governments through undisclosed funds, physical sequestration, and coercive maneuvers.

Under this thesis, when political factions deploy unaccounted resources to purchase legislative loyalties, confine elected representatives in secret resorts, and force mass resignations to engineer government collapse, such actions constitute an unlawful conspiracy against the constitutional framework. He argued that the mobilization and transfer of vast sums of illicit cash meet the substantive definitions of unlawful funding and criminal conspiracy under Sections 17 and 18 of the UAPA, because their direct object is subverting the sovereign democratic mandate.

He examined the interaction between criminal law and constitutional disqualification mechanisms under the Tenth Schedule of the Constitution. While the Tenth Schedule addresses defection from a parliamentary standpoint under the authority of the Speaker, it does not bar criminal investigations into bribery, extortion, or illicit fund mobilization. In Kihoto Hollohan v. Zachillhu (1992), the Supreme Court affirmed that constitutional governance rests on ethical democratic processes, leaving criminal liability for corrupt conspiracies entirely open to judicial scrutiny.

He pointed out the sharp institutional contrast in statutory enforcement: while peaceful student demonstrators protesting the Citizenship Amendment Act (CAA) or the National Register of Citizens (NRC) were booked under severe anti-terror provisions, systemic political horse-trading involving hundreds of crores of rupees escapes criminal investigation. He argued that the criminal justice administration must scrutinize political corruption with the same investigative vigor applied to other threats to state integrity.

Procedural Avenues: Private Complaints and Judicial Directives

Advocate Balan turned to the practical mechanisms available to citizens and advocates under the Code of Criminal Procedure, 1973 (CrPC) when executive police machinery declines to register First Information Reports (FIRs) against influential political leaders. When local police stations refuse to act, the legal architecture empowers any aggrieved individual or public-spirited citizen to invoke judicial authority directly. Procedural remedies under criminal law, such as Section 156(3) magistrate inquiries and FIR registration, are frequently examined in criminal jurisprudence, as seen in Delhi High Court decisions on police investigation compliance.

Under Section 190(1)(a) of the CrPC, any Magistrate of the first class may take cognizance of any offense upon receiving a complaint of facts which constitute such offense. The term 'complaint' is defined under Section 2(d) of the CrPC as any allegation made orally or in writing to a Magistrate, with a view to taking action under the Code, that some person, whether known or unknown, has committed an offense, but does not include a police report.

He addressed the preliminary barrier often raised regarding executive sanction under Section 197 CrPC. In the landmark constitutional ruling R.S. Nayak v. A.R. Antulay (1984), a Constitution Bench of the Supreme Court held that a Member of the Legislative Assembly (MLA) is not a public servant within the meaning of Section 21 of the IPC for the purpose of requiring prior government sanction before prosecution. Consequently, private complaints against sitting legislators for corrupt practices or criminal conspiracies can be entertained directly without seeking executive permission.

Jurisdictional Mandate of Special Courts under the NIA Act

Advocate Balan analyzed the procedural framework created by the National Investigation Agency Act, 2008 (NIA Act). Section 3 provides for the constitution of the National Investigation Agency to investigate and prosecute offenses specified in the Schedule to the Act. The offenses under Chapter VI of the IPC (including Sedition under Section 124A) and the UAPA are scheduled offenses under the NIA Act.

Under Section 11 and Section 22 of the NIA Act, the Central and State Governments are empowered to constitute Special Courts to try scheduled offenses. Crucially, Section 16(1) of the NIA Act provides that a Special Court may take cognizance of any offense, without the accused being committed to it for trial, upon receiving a complaint of facts that constitute such offense or upon a police report of such facts.

Because a Special Court is deemed to be a Court of Session under Section 16(1), it possesses the inherent authority to examine a private complainant under Section 200 CrPC, postpone process and direct an investigation under Section 202 CrPC by any designated police officer or agency, or direct the registration of an offense under Section 156(3) CrPC before issuing process under Section 204 CrPC.

Evidentiary Safeguards and Landmark Judicial Precedents

To invoke judicial powers under Section 156(3) or Section 200 CrPC responsibly, strict procedural thresholds must be observed. In Priyanka Srivastava v. State of U.P. (2015), the Supreme Court mandated that every application under Section 156(3) CrPC must be supported by a sworn affidavit by the applicant, proving that the applicant first approached the police under Section 154(1) and the Superintendent of Police under Section 154(3) CrPC before seeking judicial intervention. This requirement prevents abuse of the judicial process while protecting genuine complainants against arbitrary police inaction.

Advocate Balan also cited authoritative rulings from the Gauhati High Court, including Redaul Hussain Khan v. State of Assam (2009) and Jibangshu Paul v. National Investigation Agency (2011), which established that Special Courts have the authority to direct specialized investigations and ensure that offenses involving unlawful assemblies, organized financing, and criminal conspiracies are thoroughly probed. Students preparing for criminal law examinations review these statutory mechanisms in detail, as demonstrated in university LLB model question papers on criminal law and procedure.

Judicial Supervision, Constitutional Morality, and Rule of Law

Advocate Balan concluded his address by invoking the enduring warning delivered by Dr. B.R. Ambedkar in the Constituent Assembly on November 25, 1949: 'However good a Constitution may be, it is sure to turn out bad because those who are called to work it, happen to be a bad lot. However bad a Constitution may be, it may turn out to be good if those who are called to work it, happen to be a good lot.'

He emphasized that when executive authority and legislative power align to weaken democratic accountability, the judicial organ remains the essential constitutional guardian of the rule of law. By utilizing available statutory procedures such as private complaints, revision petitions, and writ remedies under Article 226 of the Constitution, advocates and citizens can enforce institutional accountability against even the most powerful political actors.

Maintaining vigilance over democratic processes is vital for the survival of constitutional institutions. When citizens and legal practitioners actively utilize statutory rights to expose corrupt practices and challenge discriminatory enforcement, they uphold the foundational ideals of equality before the law and procedural fairness envisioned by the framers of the Constitution.

Statutory Reference Matrix: IPC, UAPA, CrPC, and NIA Act