The Police (Incitement to Disaffection) Act, 1922: Constitutional imperatives

Section 3 of the colonial Police Act is susceptible to challenge on the ground of overbreadth and chilling effect.
Mumbai Police, Police Act
Mumbai Police, Police Act

Earlier this year, the Mumbai Police registered an FIR under Section 3 of the Police (Incitement to Disaffection) Act, 1922 against journalists of the Republic Media network. This legislation from the pre-Constitution era does not often make the headlines nor is it a part of frequent deliberations among constitutional law enthusiasts, as it is seldom invoked.

However, the FIR against journalists of Republic is sure to propel discussions on this legislation and its constitutional implications. This legislation consists of only six provisions, Section 3 being the penal provision, which reads as follows:

“3. Penalty for causing disaffection, etc.—Whoever, intentionally causes or attempts to cause, or does any act which he knows is likely to cause disaffection towards the Government establishment by law in India amongst the members of a police-force, or induces or attempts to induce or does any act which he knows is likely to induce, any member of a police-force to withhold his services or to commit a breach of discipline, shall be punished with imprisonment which may extend to six months, or with fine which may extend to two hundred rupees, or with both.

Explanation - Expression of disapprobation of the measures of the Government with a view to obtain their alteration by lawful means, or of disapprobation of the administrative or other action of the Government, do not constitute an offence under this section unless they cause or are made for the purpose of causing or are likely to cause disaffection.”

It is therefore clear that the offence under this provision is two-fold. Firstly, causing disaffection towards the government established by law in India amongst the members of the police force has been made punishable. Secondly, if such an act is done which induces or is likely to induce any member of the police force to withhold his services or to commit a breach of discipline, it is made punishable.

The crux of the offense under Section 3 lies in causing ‘disaffection.’ The word ‘disaffection’ reminds us of Section 124-A of the Indian Penal Code, which in popular parlance is known as the provision criminalizing Sedition. The wordings of Section 3 of the Police Act and Section 124-A of the Penal Code are similar in that both punish exciting feelings of disaffection.

The constitutional validity of Section 124-A was under challenge before the Supreme Court in the case of Kedar Nath Singh v. State of Bihar, wherein the Court had upheld the vires of the said provision. The Court in Kedar Nath was confronted with conflicting judgements of the Privy Council and the Federal Court as to the meaning of the phrase ‘disaffection.’ The Court, taking note of Article 19(2), circumscribed the operation of the said provision to only those acts which have a tendency to incite violence or create disorder or disturbance of law and order. By so interpreting Section 124-A, its constitutional validity was upheld.

Gautam Bhatia, in his blog article on this judgment, opines that the Court in Kedar Nath has attached a test of tangible evidence of actual harm to the definition of sedition.

In Indulal Yagnik v. State, the Constitutional validity of Section 3 of the Police Act was challenged before the Bombay High Court by Indulal Yagnik, a member of the Lok Sabha from Ahmedabad. In a public speech, he had made certain remarks pertaining to the members of the police force which were alleged to be an offense under Section 3 of the Police Act and he was therefore charged under the said provision. Thereafter, he moved the Bombay High Court, challenging the Constitutional validity of Section 3.

The two principal grounds of challenge raised before the Court were that the restriction was not covered by any of the phrases contained in Article 19(2) and that it was very wide in its scope, attracting the vice of unreasonableness. The Court, while upholding the vires of this provision, took note of the fact that the phrase “in the interests of public order” would save the law. The Court took note of the fact that phrase “in the interests of” as against “for the maintenance of” was used in Article 19(2) and that the phrase “in the interests of” was wider than the phrase “for the maintenance of.”

It therefore held that any measure which was conducive to the preservation of public order would be saved by the said phrase. Interestingly, in this judgment, there is neither a detailed discussion on the scope of the word ‘disaffection’ nor an attempt to strictly lay down the contours of the said provision.

The judgment of the Supreme Court in Kedar Nath was delivered three years after the judgment of the Bombay High Court in Indulal Yagnik. The principles applied by the Supreme Court while interpreting the word ‘disaffection’ and narrowing down the scope of Section 124-A of the Penal Code would squarely apply to Section 3 of Police Act.

Even subsequent to the judgment of the Supreme Court in Kedar Nath, there have been path breaking developments in India’s free speech jurisprudence. Previously, courts were reluctant to strike down provisions on the ground that they were widely worded. The courts would instead, narrow down the meaning of the provisions challenged. The approach of the Court in Kedar Nath is testimony to this.

Moreover, the argument that a law has a “chilling effect” on free speech was rarely advanced before the Court. However, the trend has now changed. In Shreya Singhal v. Union of India for the first time, the apex court invoked chilling effect, overbreadth and vagueness, in order to strike down Section 66-A of the Information Technology Act, 2000. It observed,

“In point of fact, Section 66A is cast so widely that virtually any opinion on any subject would be covered by it, as any serious opinion dissenting with the mores of the day would be caught within its net. Such is the reach of the Section and if it is to withstand the test of constitutionality, the chilling effect on free speech would be total.”

It is true that there are several provisions in criminal law which are widely worded or are not capable of precise definition. In its early days, the Supreme Court upheld several such widely worded statutes by narrowing down their meaning. The judgments in Kedar Nath, Madhu Limaye, AK Roy, and Ramjilal Modi are testimony to this fact. The problem with widely worded provisions is that they are prone to arbitrary interpretation by the authorities implementing them, and therefore, they may on some occasions cover the innocent as well as the guilty.

Undoubtedly, Section 3 of the Police Act is susceptible to challenge on the ground of overbreadth and chilling effect. The chilling effect as a test to determine the validity of a law restricting a fundamental right has been recognized by the Supreme Court in Puttaswamy and Navtej Singh Johar too. The Police Act, therefore, has difficult terrain to tread upon, if a challenge to its vires is mounted.

There is another interesting angle to this colonial legislation. At the outset, it is imperative to note that colonial laws do not enjoy the presumption of constitutionality, which is attached to laws made in independent India. In the colonial era, the police force was a manifestation of the power of the colonial State in which there was no place for the principles of democracy. Since the police was the sanction arm of the State, it was necessary to punish incitement of any feeling of disaffection against the State among the members of the police force or any inducement to commit breach of discipline.

The Police Act, 1922 will have be viewed by keeping in mind this background. Independent India is a welfare State and not a ‘police State.’ It is governed by the principles of rule of law and constitutionalism. Hence, the existing police force can no longer be viewed as a manifestation of the sanction of the State. Thus, because the reason for the legislation has ceased, the legislation must also now cease to exist. This rule is recognized by the Latin maxim Cessant Ratione Legis Cessat Ipsa Lex.

Recently, it was applied in the context of Section 377 of the Indian Penal Code, in the case of Navtej Singh Johar wherein Nariman, J held that Section 377 was a product of the Victorian morality which will have to now yield to Constitutional morality. He further observed,

“The rationale for Section 377, namely, Victorian morality, has long gone and there is no reason to continue with - as Justice Holmes said in the lines quoted above in this judgement - a law merely for the sake of continuing with the law when the rationale of such law has long since disappeared.”

These observations are squarely applicable to the Police Act. Colonial legislations such as the Police Act must wither away with time.

Moreover, the Law Commission, in its 248th report in October 2014, had recommended a complete repeal of the Police Act. The said report of the Law Commission notes that the Police Act acts as a curb on the freedom of speech and will have to be re-examined in light of the potential infringement of Articles 19(1)(a) and (b) of the Constitution of India. It was further observed that the said Act is prone to misuse.

As pointed out earlier, the Court in Kedar Nath has held that there should be a tendency to create public disorder or there should be incitement to offence in order to bring home the charge under Section 124-A. Disaffection simpliciter would not be sufficient. As in the case of Section 124-A, so also in the case of an alleged offence under Section 3 of the Police Act, the tendency to create disorder subsequent to creation of feeling of disaffection will have to be proved.

Additionally, such a tendency has to be proximate to the alleged speech which causes disaffection or induces to commit breach of discipline. If the breach of discipline or tendency to commit breach of discipline or public disorder is too remote from the alleged speech which caused the inducement, then the offence cannot be made out. If Section 3 is to somehow withstand the test of Constitutional scrutiny, it will have to be read down in this manner.

The author is an Advocate practicing at the Bombay High Court.

Disclaimer: The views and opinions expressed in this article are those of the author's and do not necessarily reflect the views of Bar & Bench.

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