“If we go see history of charging of Section 124-A, the enormous power of this section can be compared to a carpenter being given a saw to make an item, uses it to cut the entire forest instead of a tree. That’s the effect of this provision.”
Chief Justice of India N.V Ramana’s remarks in open court sends a clear and articulate message to the government that the Supreme Court is prima facie convinced that sedition is being misused by the authorities to stifle and suppress the voice of citizens and their fundamental right of free speech and liberty.
The CJI has sent a clear message that section 124A (called Sedition) of Indian Penal Code has passed its time. The honorable Supreme Court has made it clear that it is very sensitive to public demand to judicially review the manner in which law enforcement authorities are using the sedition law to control free speech and send journalists, activist, poet, authors, cartoonists and dissenters to jail and keep them there.
“This dispute about law is concerned, its colonial law, it was meant to suppress the freedom movement, the same law was used by British to silence Mahatma Gandhi, Tilak, etc. Still is it necessary after 75 years of independence? The government is taking out many laws. I don’t know why they are not looking into this.” remarked the CJI.
The CJI’s reference to conviction rates under the sedition law resonates with a petition filed by senior journalist Shashi Kumar, highlighting the dramatic jump in charging a person with the offence of sedition. In 2019, 93 cases were on the ground of sedition as compared to the 35 cases that were filed in 2016.
Of these 93 cases, charge sheets were filed in a mere 17% of cases and even worse, the conviction rate was an only 3.3%. The NCRB report shows that in 2019, 21 cases of sedition were closed on account of an availability of no substantial evidence, two were closed for being false cases and six cases held to be civil disputes.
Recently, Supreme Court Justice D.Y Chandrachud made it clear when he was speaking on ‘Role of the Supreme Court in protecting Fundamental rights in challenging times’ at a virtual conference hosted by American Bar Association, that “Criminal law, including anti-terror legislation should not be misused for quelling dissent or for the harassment of citizens”.
Further, he said that the Supreme Court plays the role of a counter-majoritarian institution and it is the court’s duty to protect the rights of socio-economic minorities. Our Indian judiciary has continued to remain the first line of defence against the deprivation of liberty of citizens.
Deprivation of liberty even for a single day is one too many. Many have termed these interventions by the Supreme Court as ‘Judicial activism’ or ‘Judicial overreach’ but it is the duty of court to put a break where executive or legislative actions infringe fundamental rights.
Before going to challenge the constitutionality of the colonial era sedition law, let’s put some light on the historical aspects of this contentious provision. Governments of the past and present have steadily used a colonial era law to charge many men and women, most recently during the farmers protest when a series of cases were filed against journalists and opposition politicians.
The crime of sedition was first defined in the draft Indian Penal Code of 1837. Englishman Thomas Macaulay was responsible for codifying the mishmash of law applicable in different parts of the country into a draft code. His draft code provided that anyone who by speaking or writing attempts to “excite feelings of disaffection’’ towards the government in the territories of the East India company will be punished with banishment for life or with imprisonment for three years.
The draft clause did not use the word ‘sedition’ and it was finished in 1837 and the mutiny of 1857 catalyzed its becoming into a law in 1860, a year after the death of Macaulay. But the law missed out on including the clause related to sedition. The mistake was rectified 10 years later by the insertion of Section 124-A in the penal code.
With nationalist movement gaining ground the then colonial government started using the sedition law as a tool to suppressing free speech and dissent. In 1897, Bal Gangadhar Tilak became the first political personality to be persecuted under the sedition clause for his writing and speeches. He faced three separates trials and was jailed twice.
Even when Mahatma Gandhi was tried under section 124A in 1922, he did not deny the charges. He said that “to preach disaffection towards the existing system of government has become almost a passion with me” while Nehru and Maulana Azad remained equally defiant at their sedition trials.
When sedition law came up for discussion during the framing of the constitution, the draft constitution included sedition as a restriction on the right of freedom of speech and expression. However, sedition was omitted and the constitution restricted the freedom of expression on grounds like libel, contempt of court, morality and security of the state.
But thereafter Prime Minister Nehru’s government in 1951 introduced the 1st Constitutional Amendment Bill in the provisional parliament. This amendment added three new restrictions to the freedom of speech, one of them being ‘public order’.
Every citizen of India is entitled to fundamental rights provided in Part III of the constitution. Article 19(1) (A) of the constitution guarantees freedom of speech and expression, subject only to Article 19(2) which saves any law that imposes ‘reasonable restriction’ on the limited grounds of interest of the sovereignty and integrity of India, the security of the state, friendly relations with foreign states, public order, decency or morality or in relation to contempt of Court, defamation etc.
The constitutional validity of section 124A of the IPC, 1860 is being ultra vires Article 19(1)(a) of the constitution read with article 14 and 21. This impugned provision was upheld in ‘Kedar Nath’ case (1962) subject to a partial reading down. This impugned provision is wholly unconstitutional and repugnant with provision of the constitution of India.
The verdict of ‘Kedar Nath’ case was overruled by the larger constitution Bench judgements in ‘R.C Cooper vs. Union of India’ (1970) and later the Supreme Court has again reaffirmed and strengthened in ‘Indira Gandhi vs. Raj Narayan’ (1975), ‘Maneka Gandhi vs. Union of India‘ (1978), ‘I R Coelho vs. State of Tamil Nadu’ (2007) and recently in ‘Puttaswamy vs. Union of India’(2017) the scope, extent and the interrelationship between Articles 14, 19 and 21 of the constitution.
Each of these verdicts of the Supreme Court now establishes that fundamental rights in the constitution are not to be read as isolated silos or as watertight compartments, but are to be read as if the content of each fundamental right animates the other. The reasonable restriction of free speech under article 19(2) will need to considered afresh considering procedural as well as substantive due process embodied in Articles 14 and 21.
In 2011, D Raja as a member of the Council of States made one last attempt through a private member bill to remove the sedition law. Eventually, at the end of this article I would must say that Section 124A (sedition) of the Indian Penal Code may have passed its time and the time has come that government must should need to think on this very contentious law.
This article was first published on the Readers’ Blog, Times Of India.