By Yash Pal Ralhan
The judgment of the Allahabad High Court needs to be examined before any comment on the sedition law is made. It says, “India’s unity is not made of bamboo reeds which will bend to passing winds of empty slogans” These remarks were made by the Allahabad High Court while granting bail to three Kashmiri students who raised slogans and were booked under Section 124A. The Court also quoted three lines from poet Alama Iqbal’s song, “Saare jahan se achha, Hindustan hamara” to stress the ‘ constancy of Indian values and perpetuity of the Indian people.
The sedition law case is now being taken up by the Supreme Court. CJI Chandrachud said the Constitution Bench would consider whether the issue needed to be further referred to a seven-judge Constitution Bench in view of the fact that a five-judge Bench, had, in the Kedar Nath Singh versus State of Bihar 1962 upheld the validity of Section 124A. Being a smaller Bench of three judges it may not be appropriate for it to doubt or overrule the ruling of a five-judge Bench in Kedar Nath Singh case, the CJI-led Bench said.
Interestingly, Pakistan had abolished section 124A whereas in India, which calls itself the Mother of Democracy it has been kept in abeyance. The Court also noted a submission that until 1973 sedition was not a cognizable offence but became so thereafter. This was stated by senior counsel Kabil Sibal to the bench. Sibal stated that sedition was anti-people.
Referring the challenge of the validity of Section 124A to a five-judge Constitution bench, the Bench said that it was not inclined to accept the submission of Attorney General R Venkataramani and Solicitor General Tushar Mehta to keep in abeyance the adjudication of the challenge to Section 124A till the new law, that was currently before the parliamentary standing committee (PSC), was deliberated upon and becomes a law. Venkataramani said that the pronouncement of the top court on the validity of Section 124A of the IPC would have a bearing on the new law.
Giving a political twist to the argument by Sibal that the proposed new law was “more draconian” than its present version, Mehta countered, “Earlier, the government could have changed the draconian law, but it missed the opportunity.” This was essentially to take a dig at former Congress governments which did nothing to read down Section 124A. But Justice Chandrachud did not miss the sarcasm in the Solicitor General’s statement and said as much.
Referring to the submission of the Attorney General and the Solicitor general to defer the reference to a five-judge constitution bench on the validity of Section 124A, Chief Justice Chandrachud said that the pendency of the bill relating to the new law would “not obviate the need to adjudicate the validity of 124A” as the new law would be effective prospectively and not retrospectively. The constitutional point of validity of Section 124 has to be decided”, the CJI said.
On May 11, 2022, the Supreme Court had brushed aside the Centre’s opposition to putting the sedition law on hold. The top court was hearing a batch of petitions by several NGOs and individuals challenging the constitutionality of IPC Section 124A. The petitioners include several NGOs, the Editors Guild of India, Peoples Union for Civil Liberties, Journalist Union of Assam, former Union Minister Arun Shourie, the TMC’s Lok Sabha member Mahua Moitra, senior editor Patricia Mukhim, senior editor Anuradha Bhatia, former army Major General SG Vombatkere, Anil Chamadia, Upendra Nath Dalai, Suresh Kumar alias Suresh Dravid, and Abhijit Kumar Chattopadhya.
Besides NGOs and individuals, two Andhra Pradesh broadcasting companies — Aamoda Broadcasting Company Private Limited and Shreya Broadcasting Pvt Ltd — are also petitioners. They made the Andhra Pradesh government a respondent.
The apex court had in 2022 ordered that the sedition law be put on hold and asked all agencies of the Union and state governments to desist from filing cases based on it, as it felt that it was “not in tune with the current social milieu” and that “it will be appropriate not to continue the usage of the provision of law by governments at the state and centre.”
The statement of the government reflects the judicial view of a law that was made to preserve and protect an alien government and its interests on Indian soil and that it naturally does not square up with the demands of the citizens of a republic who have now got the power to elect their government. Perhaps the government has gone by the opinion of the Law Commission which, contrary to the opinion of the apex court, wanted the law to stay as repealing it, “can have serious adverse ramifications for the security and integrity of the country. The Commission, in fact, wanted the legal provisions to have “more clarity in the interpretation, understanding and usage. Hence the draft of the new law. As per Section 150 of the draft Bharatiya Nyaya Sanhita, the accused citizen is pitted not against “the government established by law in India” but the “sovereignty, unity and integrity of India.” The government can very well argue that it has vanished from the scene as a complainant and placed the country in its stead and that acts against it are no more prosecuted. However, given the way government agencies misinterpret and misuse the law, the wider the scope of it, the more inimical it is to the citizen.
A person who criticises a system of governance in the country can be hauled up for sedition mainly because the government is equated to the nation. As recommended by the Law Commission, the draft, while retaining life imprisonment, has enhanced the minimum punishment from three years to seven years. It has also done away with the discretion that was available to the court to release an accused with a fine. Democratic constitutions put the citizens and not the state at their core. Any law that criminalises expressions of dissent against the government or the state turns the very idea of democracy on its head. It is important that the apex court examines the contours of the sedition law in whatever form and makes its opinion known so that the government can take the cue and act before finalising the new law. As in the Shah Bano case Parliament reversed the decision of the Supreme Court. It is expected that the same will not happen here too.Whatsoever decision will be delivered by the Supreme Court should be implemented by the government even if it goes against it. India is known for preserving democratic values. But recently USA President Joe Biden had criticised the Indian government in Vietnam for violations of human rights and freedom of the press. The democratic values of the country should be maintained and sedition law has no place in a democracy. Even while attending the G20 meeting, 70 MPs of the UK had asked Prime Minister Sunak to raise the issue of violations of human rights in India.
Hence in case of any guidelines by the Supreme Court the present Government should implement the same meticulously, without any ‘ifs’ and ‘buts’