By Dr. Gyan Pathak
The time of reckoning has finally come. The Supreme Court of India is to begin final hearing of petitions challenging sedition law on May 5, 2022, as the Apex Court has said on April 27, and would not entertain any request for any further adjournment of the matter. The three-judge Bench of the Supreme Court headed by the Chief Justice N V Ramana, which includes Justices Surya Kant and Hima Kohli, has directed the Centre to file its response by the end of this week after hearing a batch of petitions challenging the constitutional validity of sedition law ie Section 124-A of the Indian Penal Code (IPC). Since CJI N V Ramana will be retiring on August 26, 2022, the final outcome of the case is expected before his retirement.
The constitutional validity of Section 124-A is not the only issue, though it is an important issue. Justice Ramana has himself said, “This court’s main concern is the misuse of the law, leading to a rise in number of cases. We need to hear on this point and that too in a detailed manner.” That is why people of the country have great hopes on the outcome; some even hoping that the bench would do a great service to Indian democracy if this British era law is thrown out of the Indian statute book. This hope will be realized only if the bench would find the law unconstitutional, or inevitability of misuse of the law if allowed to exist.
In an earlier judgment in Kedar Nath case, 1962, a constitutional bench had upheld the validity of the sedition law under IPC. Since then the law has been misused to charge dissenters and critics of the government with sedition though the actions infringe on basic human rights. Petitioners now allege that the law infringes on the basic human rights and violates Article 14 (right to equality before law) and 19(1)(a) (right to freedom of speech and expression) of the Indian Constitution.
The first amendment of the Constitution of India brought in 1951 has limited the freedom under Article 19(1)(a) and enacted Article 19 (2) to empower the state to put curbs in the form of “reasonable restrictions” on right to free speech. This amendment along with the SC ruling in Kedar Nath case has made it possible for the governments to misuse the sedition law to suppress critics of misrule by booking them under section 124-A and putting them behind bars which is punishable even with imprisonment for life.
Section 124-A of the IPC says whoever by words, either spoken or written, or by signs, or by visible representation, or otherwise, brings or attempts to bring into hatred or contempt or excites or attempts to excite disaffection towards the government … shall be punished …” with three exceptions.
1. The expression “disaffection” includes disloyalty and all feeling of enmity.
2. Comments expressing disapprobation of the measures of the Government with a view to obtain their alteration by lawful means, without exciting or attempting to excite hatred, contempt or disaffection, do not constitute an offence under this section.
3. Comments expressing disapprobation of the administrative or other action of the Government without exciting or attempting to excite hatred, contempt or disaffection, do not constitute an offence under this section.
Had Prime Minister Narendra Modi and the BJP’s state governments not made a grave mistake in misreading this law, they would not have misused it as a weapon to suppress the critics. People are intimidated, and they are now wary of expressing dissent even on the wrongs committed by the government authorities.
The term :government” used in this section does not mean a “ruling political party”, “public servant” or any “decision” of the government? The government is a system and does not mean the ruling party, Prime Minister or any other public servant, or any of their decisions. So how can criticism against them amount to disaffection against the “government of India” or “governments of any state of the country”? Government is a ruling body in continuation, while parties and persons come and go. Therefore, anything said against parties and persons in power and their decisions and misrule cannot be sedition.
The real challenge in the Supreme Court will be providing clear view not only who and what is a “government” with special reference to sedition, so that the cases may not linger on in the courts of India, at a time when government servants and rulers seem to assert that “they are the government”, while in reality, government is an institution, not any individual or a group of individuals who have somehow come to believe that they are the government.
Therefore any offence against a public servant, an individual or a group of officers or rulers, or their decisions clearly pertains to other sections of the criminal laws or IPC, but not to the law of sedition under section 124-A. And if there are some “reasonable restrictions” on the freedom of speech, these can be dealt with according to the other provisions of the law such as ‘simple breach of a rule’, ‘offence against an authority in power’, ‘offence against a ruling establishment’, ‘offence against state machinery’, ‘offence against the state’ or even distinguished under IPC, but not sedition,
Section 124-A – 1860 of the IPC is a British legacy which was originally inserted by Act 27 of 1870, and was further amended in 1898, 1937, 1948, 1950, 1951, 1955, and 1956. When it was applied in India, the country then was under British rule and not an independent democratic republic. During British rule, any dissent by an Indian citizen, was considered ‘sedition,’ but now we are a free, democratic country and we are vested with the fundamental right to expression, which cannot, and should not be suppressed in the name of ‘sedition’ for it would be anti-democracy. A citizen must have right to criticize and to warn about the errors and pitfalls of the decisions taken by ruling establishments, political parties and persons in power, especially when those tend to jeopardize the national interest. It is what democracy means.
During the hearing on July 15, 2021, the Apex Court itself had noted the “enormous power of misuse” of the sedition law in India and had asked the Centre as to why it should not scrap a colonial law that was once used by the British government to oppress the freedom movements and leaders such as Mahatma Gandhi and Bal Gangadhar Tilak. The court also emphasized that it was concerned about “misuse of the law and lack of accountability of executive and the investigating agencies. The court was informed that a 2019 data shows, sedition cases rose by 25 per cent (93 in number) and arrests by 41 per cent over the previous year. However, only 3 per cent of cases led to conviction of only two accused. It suggested that people were made to suffer by the state without reasonable grounds. Why does the judiciary then not put a brake on such blatant misuse of sedition law? Perhaps, there is no clarity even in the minds of the judges about what constitutes sedition. Therefore, the SC bench hearing the batch of petitions has a historical responsibility to put a brake on the misuse of the sedition law or throw the law out altogether. (IPA Service)