Legal Narrative
In most families, the person who says "I think we are making a mistake" is usually the one who cares most about the house. We rarely call that person a traitor. In public life, though, the accusation arrives quickly. Object to a policy, question a decision, and someone will ask whether you love your country at all.
I think this confusion rests on one question that is seldom asked: loyalty to what? My answer is that a republic's citizens owe loyalty to the Constitution and its promises. They do not owe it to whoever happens to be administering the country that year.
What the Court actually said
The Supreme Court drew this line more clearly than we often remember. In Kedar Nath Singh v. State of Bihar, it separated the "Government established by law", which it described as the visible symbol of the State, from the persons carrying on the administration at a given time.[1] It then observed that disloyalty to the established Government is a different thing from commenting in strong terms on its measures or acts, so long as the aim is to change them by lawful means and not to provoke disorder or violence.[1] The Court added that a citizen may say or write what he likes about the Government or its measures, provided he does not incite violence or aim at public disorder.[2]
It is only fair to say that the Court upheld the offence of sedition in that case. It did so by reading the offence narrowly, limiting it to acts involving an intention or tendency to create disorder or incite violence.[3] That is the part worth keeping. The line the Court drew had nothing to do with whether speech was polite or whether it hurt those in power. It turned on whether the speech pointed toward violence.
The text points the same way
Article 19(1)(a) guarantees freedom of speech and expression. Article 19(2) permits reasonable restrictions on eight grounds and on no others: the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality, contempt of court, defamation, and incitement to an offence.[4] No ground has been left out of that list, and none has been added to it.
Read it slowly and notice what is absent. Disrespect for a government, or embarrassment to it, is not there. Neither is the word "sedition". In Romesh Thappar, the Court noted that the word had been dropped from the draft of what became Article 19(2), which suggested that criticism exciting disaffection toward the Government was not meant to justify restriction unless it threatened the security of the State.[5] Parliament later widened the grounds in 1951, but the word itself never entered the clause.[5]
Advocacy is not incitement
The more modern statement comes from Shreya Singhal v. Union of India. The Court said there are three concepts to keep apart, namely discussion, advocacy and incitement. Even the advocacy of an unpopular cause lies at the heart of Article 19(1)(a), and the State may step in only when it reaches the level of incitement, which is one of the eight grounds above.[6]
I find this distinction more useful than any slogan about free speech. It gives a practical test. A dissenter wants to persuade and an agitator wants to provoke, and the law has a way of telling them apart. Treating the first as if he were the second damages the Constitution twice. It punishes a citizen who used the system as intended, and it blurs the boundary that protects us from real threats.
The law today
Section 124A of the Indian Penal Code has been replaced by Section 152 of the Bharatiya Nyaya Sanhita, which came into force in July 2024. The new provision speaks of acts that endanger the sovereignty, unity and integrity of India. It also carries an explanation that comments expressing disapproval of government measures, made with a view to changing them by lawful means and without exciting the activities the section describes, are not an offence.[7]
The explanation matters, and it echoes the old reasoning. At the same time, the section's wording is wide, and phrases like "subversive activities" and "feelings of separatist activities" leave a good deal of room for interpretation. My own view is that courts and investigating agencies should read it as the Court read its predecessor, with a firm requirement of a real link to violence, secession or armed rebellion. I offer this as an argument and do not claim it as settled law. Where the wording is wide, a narrow reading keeps the provision consistent with Article 19.
Why disagreement is useful
There is a practical reason to protect dissent, and it has nothing to do with sentiment. A government that hears only agreement is operating without information. Objections tell it where a policy is landing badly, which groups were not consulted, and what the official file failed to record.
Lawful dissent also keeps conflict inside the institutions we have built. A citizen who writes, votes, petitions a court or joins a peaceful assembly is working within the constitutional order. Suppress those routes and the disagreement does not vanish. It looks for other channels, and some of them are not peaceful.
None of this means every critic is right. Dissenters can be mistaken, unfair or irritating, and the Constitution does not ask us to agree with them. It asks us to see the difference between a person who wants a policy changed and a person who wants the republic broken. The first is using the Constitution. Only the second is a concern for the criminal law.
Endnotes
[1] Kedar Nath Singh v. State of Bihar, AIR 1962 SC 955; 1962 Supp. (2) S.C.R. 769, 805, 806 (India).
[2] Kedar Nath Singh, 1962 Supp. (2) S.C.R. at 807.
[3] Kedar Nath Singh, 1962 Supp. (2) S.C.R. at 809.
[4] INDIA CONST. art. 19, cl. 1(a), cl. 2.
[5] Kedar Nath Singh, 1962 Supp. (2) S.C.R. at 799, 800, 803 (discussing Romesh Thappar v. State of Madras, 1950 S.C.R. 594, and the Constitution (First Amendment) Act, 1951).
[6] Shreya Singhal v. Union of India, (2015) 5 SCC 1, ¶ 13 (India).
[7] Bharatiya Nyaya Sanhita, 2023, No. 45 of 2023, § 152 (India).
