OP. ED.SCC Journal Section Archives

Justice Prabodh Dinkarrao Desai was by far the finest Judge I have known in my four decades in the legal profession. He was true to his oath and lived by very strict principles which he expected others to follow. The foremost quality of Justice Desai was his fearlessness. When any Judge takes oath, he swears to work to the best of his ability without fear or favour, affection or ill-will. “Fear” was a word which did not exist in Justice Desai’s mind or dictionary. He worked tirelessly as a Judge and Chief Justice for 23 years, never seeking any reward for himself. A man who was elevated as a Judge of the High Court at the young age of 39 years could well have risen to the highest judicial post in the country if he had played his cards right. However, Justice Desai believed in doing the right things, and not in playing his cards right. He never pandered to those in power and sacrificed his future in his quest for truth. He may never have been elevated to the Supreme Court but today he is acknowledged and remembered as one of the finest Judges this country has ever seen.

 

Justice Desai was a Judge way ahead of his times. He used the Constitution as a tool to ameliorate the lives of the downtrodden. He was not bound by the rules of procedure and if, within the bounds of law, he could give relief to any petitioner before him he never hesitated to do so. Justice Desai was one of the pioneers of public interest litigation. He was an activist Judge who did not hesitate to take action even on letters written to him, if those letters disclosed violation of the fundamental rights of the citizens. It was he who said that the right to have motorable road is a fundamental right within the meaning of Article 21 of the Constitution. In some cases he entertained letters without disclosing the names of the persons who had written the letter. He was a messiah for the needy, the downtrodden and those whose fundamental rights have been curtailed whether it be in jail or outside. In one of his judgments he said “fundamental rights do not flee a person as he enters the prison”.1

 

Justice Desai was the Chief Justice of the Himachal Pradesh High Court from 23-12-1983 to 13-11-1988. When he joined, I had put in a little more than five years’ practise. For five years, day in and day out, I appeared in the Court of Justice Desai. Each day was a learning experience; learning not only in the field of law but learning how law can be used as an instrument of social change, how the legal fraternity can help alleviate the problems of the downtrodden.

 

Today’s topic “Law of Sedition in India and Freedom of Expression” is very important and relevant. I would like to divide this topic in two portions. Since freedom of speech and expression is a fundamental right guaranteed under the Constitution of India, this must be given its due importance and weightage while interpreting any legal provisions including the law of sedition. Therefore, I will first deal with the constitutional right of freedom of speech and expression, then with the laws of sedition and finally the interplay between the two.

 

Right of freedom of speech and expression

In the Preamble to the Constitution, “We the people of India” have promised to secure for all the citizens—liberty of thought, expression, belief, faith and worship. This is an inherent human right and a part of the basic structure of the Constitution. There cannot be any democratic polity where the citizens do not have the right to think as they like, express their thoughts, have their own beliefs and faith, and worship in a manner which they feel like.

 

What is a general promise in the Preamble to the Constitution, later becomes an enshrined fundamental right. Article 19(1) (a) guarantees the right of freedom of speech and expression. This right is a well-recognised right which includes within its ambit the right of freedom of press, the right to know, right to privacy, etc. Article 21 prescribes that no person shall be deprived of his life or personal liberty except according to the procedure prescribed by law. The word “life” has been given an expansive meaning and has been now recognised to mean to live a life of decency and not a mere animal existence. I am not dilating on the various aspects of the right to life but even if there was no Article 19(1) (a) we could include the right to freedom of belief, thought, expression, faith and worship in the right to life enshrined in Article 21. Article 25 makes it clear that every person is entitled to freedom of conscience and the right to freely practise, profess and propagate his or her religion.

 

No doubt, the State has the power to impose reasonable restriction on the exercise of such rights in the interest of sovereignty and integrity of the country, the security of the State, friendly relations with foreign States, public order, decency or morality, etc.

 

The right of freedom of opinion and the right of freedom of conscience by themselves include the extremely important right to disagree. Every society has its own rules and over a period of time when people only stick to the age-old rules and conventions, society degenerates. New thinkers are born when they disagree with well-accepted norms of society. If everybody follows the well trodden path, no new paths will be created, no new explorations will be done and no new vistas will be found. We are not dealing with vistas and explorations in the material field, but we are dealing with higher issues. If a person does not ask questions and does not raise issues questioning age old systems, no new systems would develop and the horizons of the mind will not expand. Whether it be Buddha, Mahavira, Jesus Christ, Prophet Mohammad, Guru Nanak Dev, Martin Luther, Kabir, Raja Ram Mohan Roy, Swami Dayanand Saraswati, Karl Marx or Mahatma Gandhi, new thoughts and religious practices would not have been established, if they had quietly submitted to the views of their forefathers and had not questioned the existing religious practices, beliefs and rituals.

 

It is said that when Guru Nanak Dev went to Mecca, he was very tired and lay down to take rest. His feet were facing the Kaaba which, for the followers of Islam, is the house of God. The maulvi became angry on seeing Guru Nanak sleeping with his feet towards the house of God and shouted “You fool, don’t you know this is the house of God? Why are you lying with your feet towards the Kaaba?” Then Guru Nanak woke up and said, “O sir, I am sorry I didn’t know it. I was tired so I just lay down and fell asleep. Could you turn my legs to the side in which there is no God?” The maulvi had no real answer and Guru Nanak observed God does not live in one place. He lives everywhere.

 

Closer home, when Guru Nanak visited Haridwar and entered the holy Ganges to take a dip early in the morning, he saw that most of the pilgrims were taking water from the Ganges, raising it towards the sun and dropping it as an offering to their ancestors. Since he did not believe in such rituals and was a rationalist, Guru Nanak turned his back towards the sun, faced the West and started pouring water. This outraged some of the priests, who asked him what he was doing. He answered, my crops in the fields are dying because of lack of water. I am watering them. Everybody started laughing and making fun of him and asked him how this water would reach his fields hundreds of miles away. He answered that if the water that you pour can reach your ancestors in another world why cannot the water which I pour reach my fields. Today if somebody was to behave like Guru Nanak, most probably he would have to spend a couple of days in jail.

 

In a secular country, every belief does not have to be religious. Even atheists enjoy equal rights under our Constitution. Whether one is a believer, an agnostic or an atheist, one enjoys complete freedom of belief and conscience under our Constitution. There can be no impediments on the aforesaid rights except those permitted by the Constitution.

 

The right to dissent is one of the most important rights guaranteed by our Constitution. As long as a person does not break the law or encourage strife, he has a right to differ from every other citizen and those in power and propagate what he believes in. The judgment of H.R. Khanna, J. in ADM, Jabalpur case2, is a shining example of a dissent which is much more valuable than the opinion of the majority. This was a judgment delivered by a fearless, incorruptible Judge. Judges are administered oath wherein they swear or affirm to perform the duties to the best of their ability without fear or favour, affection or ill-will. First and foremost part of the duty is to do one’s duty without fear. As I said earlier, “fear” is not a word which existed in the dictionary of Justice P.D. Desai. In fact, this is a word which should not exist in the dictionary of any person who professes to be a Judge.

 

A very important aspect of a democracy is that the citizens should have no fear of the Government. They should not be scared of expressing views which may not be liked by those in power. No doubt, the views must be expressed in a civilised manner without inciting violence but mere expression of such views cannot be a crime and should not be held against the citizens. The world would be a much better place to live, if people could express their opinions fearlessly without being scared of prosecutions or trolling on social media. It is indeed sad that one of our celebrities had to withdraw from social media because he and his family members were trolled or threatened of dire consequences.

 

Law of sedition

The foremost thing that one must keep in mind is that this law was introduced at a time when we were ruled by a foreign imperialist colonizing power. The British brooked no opposition and did not want to listen to any criticism. Their sole aim was to deprive the people of this country of their rights including the right to express their views. In my view, this right of freedom of expression is an inherent human right and even if there was no Article 19, this right along with its limitations would be accepted to be an enforceable fundamental right.

 

Interestingly, though sedition was an offence in the first draft of the Penal Code, 1860 (IPC) drafted by Lord Macaulay, somehow this did not find its way into IPC when it was enacted in the year 1860. IPC was amended in the year 1898 when Section 124-A was introduced. After its various amendments, it reads as under:

 

124-A. Sedition.—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 established by law in India, shall be punished with imprisonment for life, to which fine may be added, or with imprisonment which may extend to three years, to which fine may be added, or with fine.

Explanation 1.—The expression “disaffection” includes disloyalty and all feelings of enmity.

Explanation 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.

Explanation 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.

(emphasis supplied)

 

When Section 124-A was first introduced, we were told that this provision was not to curb legitimate dissent but was to be used only when the writer or the speaker directly or indirectly suggested or intended to produce the use of force. Another reason given was that there was a Wahabi conspiracy by a man who had preached Jihad or holy war against Christians in India and therefore the need to introduce such a provision. Though Section 124-A was inserted for fear of Muslim preachers advocating Jihad or religious war, it was initially used against Hindu leaders. The first such case was of Jogendra Chunder Bose3 wherein in a newspaper called Bangobasi, the Editor objected to the English rulers raising the age of consent of sexual intercourse for Indian girls from 10 to 12 years. While charging the Jury, the learned Chief Justice explained law to the Jury in these terms:

 

… Disaffection means a feeling contrary to affection, in other words, dislike or hatred. Disapprobation means simply disapproval. It is quite possible to disapprove of a man’s sentiments or action and yet to like him. The meaning of the two words is so distinct that I feel it hardly necessary to tell you that the contention of Mr Jackson cannot be sustained. If a person uses either spoken or written words calculated to create in the minds of the persons to whom they are addressed a disposition not to obey the lawful authority of the Government, or to subvert or resist that authority, if and when occasion should arise, and if he does so with the intention of creating such a disposition in his hearers or readers, he will be guilty of the offence of attempting to excite disaffection within the meaning of the section, though no disturbance is brought about by his words or any feeling of disaffection, in fact, produced by them. It is sufficient for the purposes of the section that the words used are calculated to excite feelings of ill-will against the Government and to hold it up to the hatred and contempt of the people, and that they were used with the intention to create such feeling.4

 

The British used the law of sedition to curb any demand for independence. In Tilak5, which was tried by a Jury, the presiding Judge, Strachey, J. while explaining to the Jury the meaning of sedition had this to say:

 

The offence as defined by the first clause is exciting or attempting to excite feelings of disaffection to the Government. What are “feelings of disaffection”? I agree with Sir Comer Petheram in Bangobasi case3 that disaffection means simply the absence of affection. It means hatred, enmity, dislike, hostility, contempt and every form of ill-will to the Government. “Disloyalty” is perhaps the best general term, comprehending every possible form of bad feeling to the Government. That is what the law means by the disaffection which a man must not excite or attempt to excite; he must not make or try to make others feel enmity of any kind towards the Government. You will observe that the amount or intensity of the disaffection is absolutely immaterial except perhaps in dealing with the question of punishment : if a man excites or attempts to excite feelings of disaffection, great or small, he is guilty under the section. In the next place, it is absolutely immaterial whether any feelings of disaffection have been excited or not by the publication in question. It is true that there is before you a charge against each prisoner that he has actually excited feelings of disaffection to the Government. If you are satisfied that he has done so, you will, of course, find him guilty. But if you should hold that that charge is not made out, and that no one is proved to have been excited to entertain feelings of disaffection to the Government by reading these articles, still that alone would not justify you in acquitting the prisoners. For each of them is charged not only with exciting feelings of disaffection, but also with attempting to excite such feelings. You will observe that the section places on absolutely the same footing the successful exciting of feelings of disaffection and the unsuccessful attempt to excite them, so that, if you find that either of the prisoners has tried to excite such feeling in others, you must convict him even if there is nothing to show that he succeeded. Again, it is important that you should fully realise another point. The offence consists in exciting or attempting to excite in others certain bad feelings towards the Government. It is not the exciting or attempting to excite mutiny or rebellion, or any sort of actual disturbance, great or small. Whether any disturbance or outbreak was caused by these articles is absolutely immaterial. If the accused intended by the articles to excite rebellion or disturbance, his act would doubtlesly fall within Section 124-A, and would probably fall within other sections of the Penal Code. But even if he neither excited nor intended to excite any rebellion or outbreak or forcible resistance to the authority of the Government, still if he tried to excite feelings of enmity to the Government, that is sufficient to make him guilty under the section. I am aware that some distinguished persons have thought that there can be no offence against the section unless the accused either counsels or suggests rebellion or forcible resistance to the Government. In my opinion, that view is absolutely opposed to the express words of the section itself, which as plainly as possible makes the exciting or attempting to excite certain feelings, and not the inducing or attempting to induce to any course of action such as rebellion or forcible resistance, the test of guilt. I can only account for such a view by attributing it to a complete misreading of the explanation attached to the section, and to a misapplication of the explanation beyond its true scope.”

(emphasis supplied)

 

A similar provision existed in the laws in England. However, in England this offence was a misdemeanour, meaning a petty crime punishable with imprisonment up to 2 years, but for subjects in the colonies including India, the punishment was “banishment for life” which essentially means life imprisonment. The difference is stark and the reason for this difference is that in England the Crown was dealing with its own citizens and in the colonies, it was dealing with people whom it did not consider to be its own citizens but those who were being ruled by it. Both were obviously not equal.

 

Though in India the directions of the Judges to the Jury gave a very wide meaning to the word “sedition”, in England, at the same time, the interpretation given to sedition, was as under6:

 

“Nothing is clearer than the law on this head — namely, that whoever by language, either written or spoken incites or encourages other to use physical force or violence in some public matter connected with the State, is guilty of publishing a seditious libel. The word “sedition” in its ordinary natural signification denotes a tumult, an insurrection, a popular commotion, or uproar; it implies violence or lawlessness in some form….”

 

The difference in the approach while interpreting the word “sedition” between the citizens of the mother country and the colonies is writ large. Criticism of the Government without any incitement or encouragement to use physical force or violence which would not be an offence in England would somehow tantamount to be an offence in the colonies though the language used was the same.

 

It is said that English is a very strange and difficult language and any word can have two meanings. But, here the double meaning was not due to a problem in semantics but where and against whom the law was being applied. A lenient view as against citizens and a harsh view against the colonized.

 

Another important decision on the law of sedition is in Niharendu Dutt Majumdar case7 when Sir Maurice Gwyer, C.J. of the Federal Court held:

 

Words, deeds or writings constitute sedition, if they have this intention or this tendency; and it is easy to see why they may also constitute sedition, if they seek, as the phrase is, to bring Government into contempt. This is not made an offence in order to minister to the wounded vanity of Governments, but because where Government and the law cease to be obeyed because no respect is felt any longer for them, only anarchy can follow. Public disorder, or the reasonable anticipation or likelihood of public disorder, is thus the gist of the offence. The acts or words complained of must, either incite to disorder or must be such as to satisfy reasonable men that is their intention or tendency.8

However, the Privy Council9 did not approve what was said by Justice Maurice Gwyer, C.J.

 

Mahatma Gandhi was charged with sedition in the city of Ahmedabad and while appearing before Sessions Judge Broomfield, while dealing with the word “disaffection” he had this to say:

 

Affection cannot be manufactured or regulated by law. If one has no affection for a person or system, one should be free to give the fullest expression to his disaffection, so long as he does not contemplate, promote or incite to violence.

I think this brilliantly sums up what I want to say today that mere criticism without incitement to violence would not amount to sedition.

 

However, the Mahatma was sentenced to undergo imprisonment for 6 years.

 

You cannot force people to have affection for the Government and merely because people have disaffection or strongly disagree with the views of the Government or express their disagreement in strong words, no sedition is made out unless they or their words promote or incite or tend to promote or incite violence and endanger public order.

 

The situation after Independence

The Constituent Assembly, while debating on the right of freedom of speech also considered the law of sedition. In the first draft of the Constitution, sedition was included as an exception to the right to free speech. In the debate, many persons spoke for and against including sedition as an exception to Article 19. It was the likes of K.M. Munshi, Bhupinder Singh Mann, etc., who carried the day. Munshi insisted that sedition should not be kept as one of the exceptions to free speech. He was clear in his mind that only incitement to violence or insurrection should be barred and, therefore, exceptions to Article 19 do not contain the word “sedition” but security of State, public disorder or incitement to an offence. This clearly underlines the fact that the Founding Fathers of the Constitution were of the view that sedition could be an offence only if it led to or incited public disorder or violence. In fact, Mr Munshi relied upon the judgment7 of Sir Maurice Gwyer, which I referred to above. After independence and before the first amendment to the Constitution was brought in, it was felt that Section 124-A would not at all be constitutionally valid. In fact, Justice Sarjoo Prasad in Bihar had gone to the extent of interpreting the judgment of the Supreme Court in Romesh Thappar case10 to mean that even a call for incitement of murder would not be a crime. This was an extreme view, which was rightly set aside by the Supreme Court11, but this led to the first amendment being brought in by which the restriction of public order was introduced to Article 19. Interestingly, whereas the first amendment to the American Constitution guaranteed freedom of speech, our first amendment curtailed the right of freedom of speech to a certain extent.

 

The constitutional validity of the provisions of Section 124-A was challenged before a Constitution Bench of the Supreme Court in Kedar Nath Singh12, wherein the challenge was based mainly on the ground that Section 124-A was inconsistent with Article 19(1)(a) of the Constitution. After referring to the various decisions, some of which I have referred to above, the Supreme Court held as follows:

  1. 26. … It is well settled that if certain provisions of law construed in one way would make them consistent with the Constitution, and another interpretation would render them unconstitutional, the Court would lean in favour of the former construction. The provisions of the sections read as a whole, along with the explanations, make it reasonably clear that the sections aim at rendering penal only such activities as would be intended, or have a tendency, to create disorder or disturbance of public peace by resort to violence. As already pointed out, the explanations appended to the main body of the section make it clear that criticism of public measures or comment on Government action, however strongly worded, would be within reasonable limits and would be consistent with the fundamental right of freedom of speech and expression. It is only when the words, written or spoken, etc. which have the pernicious tendency or intention of creating public disorder or disturbance of law and order that the law steps in to prevent such activities in the interest of public order. So construed, the section, in our opinion, strikes the correct balance between individual fundamental rights and the interest of public order. It is also well settled that in interpreting an enactment the Court should have regard not merely to the literal meaning of the words used, but also take into consideration the antecedent history of the legislation, its purpose and the mischief it seeks to suppress.13, 14 Viewed in that light, we have no hesitation in so construing the provisions of the sections impugned in these cases as to limit their application to acts involving intention or tendency to create disorder, or disturbance of law and order, or incitement to violence.15

 

The Supreme Court held that no offence of sedition under Section 124-A is made out unless the words — spoken or written, would have the tendency to create disorder or disturbance of public peace by resort to violence. Unless the words are likely to lead to violence, no offence is made out.

 

If one carefully analyses the Constitution Bench decision in Kedar Nath12, it is apparent that if creation of disorder or disturbance of law and order or incitement to violence had not figured, the Constitution Bench may have in all likelihood, struck down Section 124-A. It was held to be constitutional only when read in the context of incitement to violence or creating public disorder or disturbing law and order.

 

In 1974, the then Government brought another change into Section 124-A making it even more stringent. The offence, which till then had been a non-cognizable offence was made a cognizable offence meaning thereby that a person could be arrested by a police officer without obtaining warrant from a Magistrate. For me, it is very shocking that in independent India we should make the provisions with regard to sedition even more stringent and curb the voice of the people.

 

The law as laid down in Kedar Nath12 is absolutely clear. It is only if there is incitement to violence or creating of public disorder or disturbing the law that the offence of sedition is made out. Following this judgment, the Supreme Court in 1995 in Balwant Singh16 held that raising slogans like “Khalistan Zindabad”, “Raj Karega Khalsa”, etc. by themselves did not amount to an offence of sedition because there was no material or record to show that any violence had taken place despite the slogans being raised at a public place.

 

This position of law has been reiterated many times including in Bilal Ahmed Kaloo case17 and Common Cause v. Union of India18. In both these cases, the Supreme Court directed the Courts to exercise care while invoking charges of sedition. The Courts were advised to follow the principles laid down in Kedar Nath12. It was again said that sedition charges cannot be levelled only for criticising the Government or its policies.

 

The interplay between freedom of expression and the law of sedition

I would like to start with a quote from Nariman, J. opinion in Shreya Singhal case19.

  1. 13. This leads us to a discussion of what is the content of the expression “freedom of speech and expression”. There are three concepts which are fundamental in understanding the reach of this most basic of human rights. The first is discussion, the second is advocacy, and the third is incitement. Mere discussion or even advocacy of a particular cause howsoever unpopular is at the heart of Article 19(1)(a). It is only when such discussion or advocacy reaches the level of incitement that Article 19(2) kicks in. It is at this stage that a law may be made curtailing the speech or expression that leads inexorably to or tends to cause public disorder or tends to cause or tends to affect the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, etc.20

 

This passage brilliantly sums up what should be applied even in the laws of sedition. Though Nariman, J. expressed the view that discussion and advocacy are the inherent constituents of the right to “Freedom of Speech and Expression”, the harsh reality is that the art of conversation is itself dying down. There is no healthy discussion; there is no advocacy on principles and issues. There are only shouting and slanging matches. Unfortunately, the common refrain is either you agree with me or you are my enemy, or worse, an enemy of the nation, an anti-nationalist.

 

The constitutional validity of Section 124-A has to be read in the context of Article 19 of the Constitution of India. Thus, it is clear that advocating any new cause however unpopular or uncomfortable it may be to the powers that be, it must be permitted. Majoritarianism cannot be the law. Even the minority has the right to express its views. We must also remember that in India we follow the first past the post principle. Even Governments which come in with a huge majority do not get 50% of the votes. Therefore, though they are entitled to govern or be called as majority, it cannot be said that they represent the voice of all the people. There is another very important aspect of this interplay between freedom of expression and the law of sedition, and here I would also discuss the offence of creation of disharmony under Section 153-A and criminal defamation under Sections 499500IPC. Sedition can arise only against a Government established by law. Government is an institution, a body and not a person. Criticism of persons cannot be equated with criticism of the Government. During the dark days of Emergency, an attempt was made by one Party President to equate his leader with the country. That attempt miserably failed and, I am sure that no one will ever try in future to equate a personality with this country of ours which is much bigger than any individual. Criticism of senior functionaries may amount to defamation for which they can take action in accordance with law but this will definitely not amount to sedition or creating disharmony.

 

The law of sedition is more often abused and misused. The people who criticise those in power are arrested by police officials on the asking of those in power and even if a person may get bail the next day from court, he has suffered the ignominy of being sent to jail. The manner in which the provisions of Section 124-A are being misused, begs the question as to whether we should have a relook at it. Freedom of expression being a constitutional right must get primacy over laws of sedition. Sedition is a crime only when there is incitement to violence or public disorder. That is what the law of the land is as laid down in Kedar Nath12. Sadly, day in and day out, we read of people being arrested in different parts of the country for making cartoons, making not so complementary references about the heads of the State, etc. The police always claim to be short of forces when questioned about the adverse law and order situation in various parts of the country. Trials in criminal cases of rape, murder and crimes falling under Pocso carry on for years on end because police officials do not have time to even depose before the courts but when it comes to sedition or Section or implementing the provisions of Section 66-A of the Information Technology Act (which has been declared unconstitutional), there seems to be no shortage of manpower and the police acts with great alacrity. It is, thus, clear that there is one set of rules for the rich and the powerful and another set of rules for the ordinary citizens of the country. In a country which professes to live by rule of law, this cannot be permitted.

 

The last few years have given rise to a number of cases where the law of sedition or creating disharmony have been misused rampantly by the police to arrest and humiliate people who have not committed the crime of sedition as laid down by the Constitution Bench of this Court.

 

In 2011, Mumbai Police arrested Asim Trivedi, a cartoonist for circulating a cartoon which allegedly poked fun at the Constitution and the National Emblem in an anti-corruption rally organised by Anna Hazare. This led to the Bombay High Court issuing directions to the police that before arresting a person on charges of sedition the senior officials should be consulted. The High Court of Bombay held as under21:

  1. 15. … it is clear that the provisions of Section 124-AIPC cannot be invoked to penalize criticism of the persons for the time being engaged in carrying on administration or strong words used to express disapprobation of the measures of Government with a view to their improvement or alteration by lawful means. Similarly, comments, however strongly worded, expressing disapprobation of actions of the Government, without exciting those feelings which generate the inclination to cause public disorder by acts of violence, would not be penal. A citizen has a right to say or write whatever he likes about the Government, or its measures, by way of criticism or comments, so long as he does not incite people to violence against the Government established by law or with the intention of creating public disorder. The section aims at rendering penal only such activities as would be intended, or have a tendency, to create disorder or disturbance of public peace by resort to violence.
  2. 16. Cartoons or caricatures are visual representations, words or signs which are supposed to have an element of wit, humour or sarcasm. Having seen the seven cartoons in question drawn by the third respondent, it is difficult to find any element of wit or humour or sarcasm. The cartoons displayed at a meeting held on 27-11-2011 in Mumbai, as a part of a movement launched by Anna Hazare against corruption in India, were full of anger and disgust against corruption prevailing in the political system and had no element of wit or humour or sarcasm. But for that reason, the freedom of speech and expression available to the third respondent to express his indignation against corruption in the political system in strong terms or visual representations could not have been encroached upon when there is no allegation of incitement to violence or the tendency or the intention to create public disorder.22

 

I think our country, our Constitution and our National Emblems are strong enough to stand on their own shoulders without the aid of the law of sedition. Respect, affection and love is earned and can never be commanded. You may force or compel a person to stand while the National Anthem is being sung but you cannot compel him within his heart to have respect for the same. How does one judge what is inside a person’s mind or in his heart?

 

In Chhattisgarh, a 53-year-old man was arrested on charges of sedition for allegedly spreading rumours over social media about power cuts in the State. It was said that this was done to tarnish the image of the then Government running the State. The charge was absurd and again highlights the misuse of power. In Manipur, a journalist made a vituperative attack on the Chief Minister of the State and used totally unparliamentary language against the Prime Minister of the country. The language was intemperate and uncalled for but this was not a case of sedition. It was at best a case of criminal defamation. The man was kept behind bars for months under the National Security Act. In West Bengal, a party leader was arrested for morphing an image of the Chief Minister and in U.P., a man was arrested for morphing the image of the Prime Minister of the country and shockingly this image had been morphed 5 years’ back. What was the hurry to suddenly arrest this man after 5 years? A rapper who does not even live in India has been charged for sedition. The language used by her may be totally uncalled for, some other offences may be made out, but sedition does not appear to be one of them. In another extreme case, a film-maker in Tamil Nadu has been booked under Sections 153 and 153-AIPC for inciting caste enmity because he allegedly made remarks against the Chola Dynasty King for being caste oppressive. This Chola Dynasty King lived more than a thousand years’ back.

 

The law of creating disharmony and Section 66-A of the Information Technology Act, 2000 which has been held unconstitutional are still being used day in and day out to arrest people. In fact, a Bench of the Supreme Court has been constrained to pass directions on 15-2-201923 that copies of the judgment of the Supreme Court in Shreya Singhal19 be made available by every High Court in this country to all the District Courts. It does not speak well of the Indian judiciary that the Magistrates are unaware of the law of land and day in and day out we hear of Magistrates granting judicial custody or police remand in relation to such offences wherein the basic offences are not made out and under Section 66-A of the Information Technology Act, a law which is no longer valid.

 

The law laid down in Kedar Nath12, being the law of the land has to be applied in letter and spirit and unless the actions lead to creation of public disorder, disturbance of law and order or incitement to violence, no action should be taken. In fact, in my view, the law of sedition needs to be toned down if not abolished and the least which the Government can do is to make it a non-cognizable offence so that the persons are not arrested at the drop of a hat.

 

In many countries all over the world, recognising the right of freedom of speech, the laws of sedition have been abrogated or withdrawn. Even in England, sedition is no longer an offence and the crime of sedition was abolished from 2009 on the ground that sedition and seditious and defamatory libel are archaic offences — from a bygone era when freedom of expression wasn’t seen as the right it is today.

 

India is a powerful nation, loved by its citizens. We are proud to be Indians. We, however, have the right to criticise the Government. Criticism of the Government by itself cannot amount to sedition. In a country which is governed by the rule of law and which guarantees freedom of speech, expression and belief to its citizens, the misuse of the law of sedition and other similar laws is against the very spirit of freedom for which the freedom fighters fought and gave up their lives. The shoulders of those in power who govern should be broad enough to accept criticism. Their thinking should be wide enough to accept the fact that there can be another point of view. Criticism of the policies of the Government is not sedition unless there is a call for public disorder or incitement to violence. The people in power must develop thick skins. They cannot be oversensitive to people who make fun of them. In a free country, people have a right to express their views. Everybody may not use temperate or civilised language. If intemperate, uncivilised and defamatory language is used, then the remedy is to file proceedings for defamation but not prosecute the persons for sedition or creating disharmony.

 

We all must be open to criticism. The judiciary is not above criticism. If Judges of the superior courts were to take note of all the contemptuous communications received by them, there would be no work other than the contempt proceedings. In fact, I welcome criticism of the judiciary because only if there is criticism, will there be improvement. Not only should there be criticism but there must be introspection. When we introspect, we will find that many decisions taken by us need to be corrected. Criticism of the executive, the judiciary, the bureaucracy or the Armed Forces cannot be termed sedition. In case we attempt to stifle criticism of the institutions whether it be the legislature, the executive or the judiciary or other bodies of the State, we shall become a police State instead of a democracy and this the Founding Fathers never expected this country to be.

 

Gurudev Rabindra Nath Tagore had a view on nationalism, which is the anti-thesis of the view which many of us have. He, in fact, had not appreciated the satyagrah movement. He, who wrote the National Anthem also held the view that “nationalism is a great menace”. I do not agree with those views nor did eminent leaders of that time but this did not make Gurudev Rabindra Nath Tagore less an Indian, less a patriot than any of his contemporaries. Merely because a person does not agree with the Government in power or is virulently critical of the Government in power, does not make him any less a patriot than those in power. In today’s world, if any person was to say “nationalism is a great menace” he may well be charged with sedition.

 

To conclude, I would say that if this country is to progress not only in the field of commerce and industry but to progress in the field of human rights and be a shining example of an effective, vibrant democracy then the voice of the people can never be stifled. I can do no better than quote the words of Gurudev Rabindra Nath Tagore:

 

Where the mind is without fear and the head is held high

Where knowledge is free

Where the world has not been broken up into fragments

By narrow domestic walls

Where words come out from the depth of truth

Where tireless striving stretches its arms towards perfection

Where the clear stream of reason has not lost its way

Into the dreary desert sand of dead habit

Where the mind is led forward by thee

Into ever-widening thought and action

Into that heaven of freedom, my Father, let my country awake.

Thank you all. Jai Hind.

———

* Valedictory address at the workshop of lawyers, organised by Praleen Public Charitable Trust and Lecture Committee at Ahmedabad, Gujarat on 7-9-2019.

**The article has been published with due permission of Eastern Book Company.

Judge, Supreme Court of India.

1 Nawal Thakur v. Brahmu Ram, 1984 SCC OnLine HP 52 : 1985 Cri LJ 244.

2 ADM, Jabalpur v. Shivakant Shukla, (1976) 2 SCC 521.

3 Queen Empress v. Jogendera Chunder Bose, ILR (1892) 19 Cal 35.

4 Id., p. 44.

5 Queen Empress v. Bal Gangadhar Tilak, ILR (1898) 22 Bom. 112.

6 R. v. Aldred, (1909) 22 Cox CC 1.

7 Niharendu Dutt Majumdar v. King Emperor, 1942 SCC OnLine FC 5 : (1942) 4 FCR 38.

8 Ibid.

9 King-Emperor v. Sadashiv Narayan Bhalerao, 1947 SCC OnLine PC 9 : (1946-47) 74 IA 89.

10 Romesh Thappar v. State of Madras, AIR 1950 SC 124.

11 State of Bihar v. Shailabala Devi, AIR 1952 SC 329.

12 Kedar Nath v. State of Bihar, AIR 1962 SC 955.

13 Bengal Immunity Co. Ltd. v. State of Bihar, AIR 1955 SC 661.

14 R.M.D. Chamarbaugwalla v. Union of India, AIR 1957 SC 628.

15 Kedar Nath case, AIR 1962 SC 955, 969, para 26.

16 Balwant Singh v. State of Punjab, (1995) 3 SCC 214.

17 Bilal Ahmed Kaloo v. State of A.P., (1997) 7 SCC 431.

18 (2016) 15 SCC 269.

19 Shreya Singhal v. Union of India, (2015) 5 SCC 1.

20 Id, pp. 130-31, para 13.

21 Sanskar Marathe v. State of Maharashtra, 2015 SCC OnLine Bom 587.

22 Sanskar Marathe v. State of Maharashtra, 2015 SCC OnLine Bom 587, paras 15-16.

23 Peoples’ Union For Civil Liberties v. Union of India, 2019 SCC OnLine SC 1820.

Case BriefsHigh Courts

Gauhati High Court: Manish Choudhury, J., granted bail to the woman charged with sedition for using National Flag as a table cloth.

The petitioner, Ms Rajina Parbin Sultana was booked under Sections 120B/124A IPC and Section 2 of the Prevention of Insult to National Honour Act, 1971 and had been in custody since 16-05-2021. The petitioner was accused of using the Indian National Flag as a table cloth on the occasion of the Eid festival when a picture of hers having lunch on that dining table with some guests went viral on social media. Pursuant to the said incident several allegations were made against the petitioner of willfully dishonouring the Indian National Flag.

The petitioner had submitted before the Court that out of the 6 (six) accused persons named in the FIR, 5 (five) of them had already been released on bail. It was argued that even if the accusations made in the FIR were prima facie accepted to be true, the same could not be brought within the purview of the offence under Section 124A, IPC.

On the other hand, the State submitted that the accused-petitioner was the host for the lunch which was held in her house, on 14-05-2021 when the alleged act was committed. It was submitted that there was ample evidence that the accused petitioner had used a table cloth resembling the Indian National Flag while inviting guests to her house on the occasion of Eid festival.

Noticing that the sentence was to the effect that the accused-petitioners were under 30 from a middle-class background and therefore had the clout to influence the investigation”; and considering that the said incident was an unintentional mistake, the Court accepted the defence argument with the suggestion to the petitioner to exercise more care and caution in future. The Bench stated that the question of whether the accused-petitioner, by her act had, committed the offence under Section 2 of the Prevention of Insult to National Honour Act, 1971 in any public place or any other place within public view is to be considered on the basis of the materials collected during the course of the investigation and its admissibility during the course of the trial. Hence,

“It did not prima facie suggest to be an act to have the affect of subverting the Government by bringing that Government into contempt or hatred or creating disaffection against it.”

Considering the period of detention of the accused-petitioner since 16-05-2021 and the progress made in the investigation, the Court held that further custodial detention of the accused-petitioner was not necessary for the purpose of carrying out an investigation of the case and her release on bail at this stage of the investigation was not likely to cause any prejudicial effect in the further investigation, provided she continues to extend her assistance and co-operation in the further investigation of the case.  Accordingly, the petitioner was directed to be released on bail on furnishing a bail bond of Rs 20,000. [Rajina Parbin Sultana v. State of Assam, Bail Appln./1123 of 2021, decided on 08-06-2021]


Kamini Sharma, Editorial Assistant has reported this brief.


Appearance before the Court by:

Advocate for the Petitioner: Syed Burhanur Rahman

Advocate for the Respondent: PP, ASSAM

Case BriefsSupreme Court

Supreme Court: Upholding the citizens’ right to criticise the government, the bench of UU Lalit* and Vineet Saran, JJ, has quashed the FIR lodged against Journalist Vinod Dua over his YouTube show on communal riots in Delhi earlier this year.

The Court held,

“… a citizen has a right to criticize or comment upon the measures undertaken by the Government and its functionaries, so long as he does not incite people to violence against the Government established by law or with the intention of creating public disorder; and that it is only when the words or expressions have pernicious tendency or intention of creating public disorder or disturbance of law and order that Sections 124A and 505 of the IPC must step in.”

What was the controversy?

According to the complaint, Dua had accused Prime Minister Narendra Modi of using “deaths and terror attacks” to get votes.

The FIR read,

“On 30th March, 2020, Mr. Vinod Dua, in his show namely The Vinod Dua Show on YouTube, has made unfounded and bizarre allegations (details of particular moments are provided below) by stating following facts at 5 minutes and 9 seconds of the video, he has stated that Narendra Modi has used deaths and terror attacks to garner votes. At 5 minutes and 45 seconds of the video, he claims that the government does not have enough testing facilities and has made false statements about the availability of the Personal Protective Kits (PPE) and has stated that there is no sufficient information on those. Further, he also went on to state that ventilators and sanitizer exports were stopped only on 24th March 2020.”

According to the F.I.R. “…by making such false statements, Mr.Vinod Dua spread fear amongst the people. This video will only create a situation of unrest amongst the public which will result in panic and people not obeying the lockdown to come out and hoard essentials which is absolutely unnecessary.…. The rumours were spread with intent to cause, or which is likely to cause, fear or alarm to the public or to any section of the public, whereby any person may be induced to commit an offence against the State or against the public tranquillity.”

Why no case of sedition was made out against Dua?

Deaths and terror attacks

The statements attributed to Dua that the Prime Minister had used deaths and terror attacks to garner votes or that the Prime Minister had garnered votes through acts of terrorism, were not made in the Talk Show. No such assertions find place in the true translation nor were any objections raised that the translated version was in any way incorrect. The petitioner did say that the air strikes by India on Balakot and attacks on Pathankot and Pulwama were used as political events to garner votes but no allegations were made against the Prime Minister as was stated in the F.I.R.

COVID-19 Testing facilities

Considering the size of the population of this country, the testing facilities to gauge and check the spread and effect of the Pandemic, at least in the initial stages of the surge, were not exactly adequate. If in that light, the petitioner made any comments about testing facilities or PPE Suits, N-95 masks and masks of ply, those comments in first two statements, cannot be anything other than appraisal of the situation then obtaining.

Migrant workers

As on 30.03.2020, migrant workers in huge numbers were moving towards their hometowns/villages. In the circumstances, there would naturally be some apprehension about the shelter and food to be provided to them en-route. The former Chief Statistician had expressed a possibility with the intent to invite the attention of the authorities.

If Dua, in his talk show uploaded on 30.03.2020, that is even before the matter was taken up by the Supreme Court, made certain assertions, he would be within his rights to say that as a Journalist he was touching upon issues of great concern so that adequate attention could be bestowed to the prevailing problems.

It cannot be said that the petitioner was spreading any false information or rumours.

“It is not the case of the respondents that the migrant workers started moving towards their hometowns/villages purely as a result of the statements made by the petitioner. Such movement of migrant workers had begun long before.”

In the circumstances, these statements can neither be taken to be an attempt to incite migrant workers to start moving towards their hometowns or villages nor can it be taken to be an incitement for causing any food riots. The situation was definitely alarming around 30.03.2020 and as a journalist if the petitioner showed some concern, could it be said that he committed offences as alleged.

Conclusion

According to the Court, only such activities which would be intended or have a tendency to create disorder or disturbance of public peace by resort to violence – are rendered penal.

Based on the aforementioned analysis of the statements, the Court said that the said statements,

“can at best be termed as expression of disapprobation of actions of the Government and its functionaries so that prevailing situation could be addressed quickly and efficiently. They were certainly not made with the intent to incite people or showed tendency to create disorder or disturbance of public peace by resort to violence.”

Hence, the prosecution of Dua for the offences punishable under Sections 124A and 505 (1) (b) of the IPC3 would be unjust. Those offences, going by the allegations in the FIR and other attending circumstances, are not made out at all and any prosecution in respect thereof would be violative of the rights of the petitioner guaranteed under Article 19(1)(a) of the Constitution.

[Vinod Dua v. Union of India, 2021 SCC OnLine SC 414, decided on 03.06.2021]


Judgment by: Justice UU Lalit

For Petitioner: Vikas Singh, Senior Advocate

For Respondents: Solicitor General Tushar Mehta, Additional Solicitor General S.V. Raju, Senior Advocates Mahesh Jethamalani and Vinay Navre

Case BriefsHigh Courts

 Gauhati High Court: The Bench of Ajit Borthakur, J., granted bail to the renowned Assamese writer, Sikha Sarma in connection with sedition case lodged against her for posting controversial facebook post regarding death of 22 CrPF jawans in an anti-naxal operation.

Factual Matrix of the Case

An F.I.R. has been lodged against the petitioner alleging that her facebook post posted on 05.04.2021 showed disrespect to the martyrs of the Nation. It was also alleged that the accused petitioner in her post maligned and disregarded the sacrifice of the martyrs by urging ‘Media’ not to generate public sentiments in their favour and not to term them as ‘Swahids’ as they were drawing salary for the services they were providing to the nation. It was further alleged that the defamatory post had also encountered public outrage in social media as on that day, the nation was mourning the martyrdom of 22 Jawans killed during anti-naxal operation in Chattisgarh on 03-04-2021 which also included two jawans from the State of Assam. The alleged post read as:

A person who draws salary for his service cannot be considered to be a martyr/swahid if he dies on duty. If it is so, then, an electrical worker who dies in an electric shock should also be considered as Swahid. News media do not make the public emotional.

The state was of the opinion that the accused not only showed disrespect to the martyrs of the nation but at the same time tried to invoke anti-social element that killing of our soldier is not a crime. Through the said post the accused tried to create hatred against the government in the execution of lawful duty. Further, her statement fermented disaffection towards the government of India and had potential to give rise to terrorist and anti-national forces.

Stand Taken by the Accused

The counsel for the petitioner, Mr. A.M. Borah argued that the accused had no malafide while posting the messages on her facebook account. She neither made any anti-national statement nor made the statement which brings or attempts to bring or create any hatred, enmity, contempt or disaffection towards the Government established by law. It was submitted by the petitioner that the word ‘Swahid/martyr’ is not defined in law or by any Government notifications etc., the accused petitioner committed no offence in law for exercising her freedom of expression on good faith. The reliance was placed by the petitioner on the judgments of the Supreme Court in Bilal Ahmed Kaloo v. State of A.P., 1997) 7 SCC 431 and  Common Cause v. Union of India, in Writ Petition (Civil) No. 683/2016.

Findings of the Court

Considering the abovementioned, the Bench opined that,

The accused petitioner prima facie expressed her personal views on the use of the term Swahid/martyr through social network in respect of 22 brave hearts/patriot soldiers including 2 such soldiers from the State of Assam, who laid their lives in action or killed on duty, which evoked widespread criticism in social networking platform.

Having considered the pros and cons of the allegations and evidence so far collected by the investigating officer and also, taking note of the apprehension of threat to health of the prisoners due to the ongoing second wave of novel Covid-19 pandemic, the Bench opined that  further continuation of detention of the accused petitioner, who is a woman and had been in judicial custody since 07-04-2021, may not be necessary in the interest of the ongoing investigation. Accordingly, the Court allowed the bail application of the petitioner and directed the authority concerned to release the petitioner on bail of Rs.30,000 with one surety of like amount.

[Sikha Sarma v. State of Assam, 2021 SCC OnLine Gau 1070, decided on 19-04-2021]


Kamini Sharma, Editorial Assistant has put this report together 

Appearance before the Court by:

Advocate for the Petitioner: A M Bora
Advocate for the Respondent: PP, Assam

Case BriefsSupreme Court

Supreme Court: The 3-judge bench of UU Lalit, Indira Banerjee and KM Joseph, JJ has issued notice in a plea seeking declaration of Section 124-A IPC to as unconstitutional and void.

The order came after Senior Advocate Colin Gonalves submitted before the Court that the decision of the Court in Kedar Nath Singh v. State of Bihar, 1962 Supp. (2) SCR 769 requires reconsideration.

The notice is returnable on July 12, 2021.

Section 124-A IPC and it’s history 

124-A. Sedition.—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 established by law in  [India],  [* * *] shall be punished with 5[imprisonment for life], to which fine may be added, or with imprisonment which may extend to three years, to which fine may be added, or with fine.

Explanation 1.—The expression “disaffection” includes disloyalty and all feelings of enmity.

Explanation 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.

Explanation 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.

The section corresponding to Section 124-A was originally Section 113 of Macaulay’s Draft Penal Code of 1837-39, but the section was omitted from the Indian Penal Code as it was enacted in 1860. The reason for the omission from the Code as enacted is not clear, but perhaps the legislative body did not feel sure about its authority to enact such a provision in the Code. Be that as it may, Section 124-A was not placed on the Statute Book until 1870, by Act 27 of 1870.[1]

Sedition, which is an offence against the State, was not an invention of the British Government in India, but has been known in England for centuries. Every State, whatever its form of Government, has to be armed with the power to punish those who, by their conduct, jeopardise the safety and stability of the State, or disseminate such feelings of disloyalty as have the tendency to lead to the disruption of the State or to public disorder.[2]

However, criticism on political matters is not of itself seditious. The test is the manner in which it is made. Candid and honest discussion is permitted. The law only interferes when the discussion passes the bounds of fair criticism. More especially will this be the case when the natural consequence of the prisoner’s conduct is to promote public disorder.[3]

Law laid down under Kedar Nath Singh

The 5-judge bench had held that the Section 1240A was constitutionally valid as it, “strikes the correct balance between individual fundamental rights and the interest of public order”

“… the explanations appended to the main body of the section make it clear that criticism of public measures or comment on Government action, however strongly worded, would be within reasonable limits and would be consistent with the fundamental right of freedom of speech and expression. It is only when the words, written or spoken, etc. which have the pernicious tendency or intention of creating public disorder or disturbance of law and order that the law steps in to prevent such activities in the interest of public order.”

The Court noticed that the gist of the offence of “sedition” is incitement to violence or the tendency or the intention to create public disorder by words spoken or written, which have the tendency or the effect of bringing the Government established by law into hatred or contempt or creating disaffection in the sense of disloyalty to the State.

“This Court, as the custodian and guarantor of the fundamental rights of the citizens, has the duty cast upon it of striking down any law which unduly restricts the freedom of speech and expression with which we are concerned in this case. But the freedom has to be guarded against becoming a licence for vilification and condemnation of the Government established by law, in words which incite violence or have the tendency to create public disorder. A citizen has a right to say or write whatever he likes about the Government, or its measures, by way of criticism or comment, so long as he does not incite people to violence against the Government established by law or with the intention of creating public disorder. The Court has, therefore, the duty cast upon it of drawing a clear line of demarcation between the ambit of a citizen’s fundamental right guaranteed under Article 19(1)(a) of the Constitution and the power of the legislature to impose reasonable restrictions on that guaranteed right in the interest of, inter alia, security of the State and public order.”

[Kishorechandra Wangkhemcha v. Union of India, 2021 SCC OnLine SC 374, order dated 30.04.2021]


[1] Kedar Nath Singh v. State of Bihar, 1962 Supp (2) SCR 769, Para 10

[2] Ibid

[3] Commentaries on the Laws of England, 21st Edn., Vol. IV, at pp. 141-42

Case BriefsSupreme Court

Supreme Court: The bench of Sanjay Kishan Kaul and Hemant Gupta, JJ has imposed a cost of Rs. 50, 000 on petitioners for filing a “publicity interest litigation” seeking initiation of proceeding against former J&K Chief Minister Farooq Abdullah for his “pro-China” comments over the abrogation of Article 370 of the Constitution.

As reported by India Today, Farooq Abdullah had last year, in an interview, said,

“Whatever they are doing at LAC in Ladakh all because of the abrogation of Article 370, which they never accepted. I am hopeful that with their support, Article 370 will be restored in J&K,”

Stating that the expression of a view which is a dissent from a decision taken by the Central Government itself cannot be said to be seditious, the Court observed that there was nothing in the statement which we find so offensive as to give a cause of action for a Court to initiate proceedings.

“Not only that, the petitioners have nothing to do with the subject matter and this is clearly a case of publicity interest litigation for the petitioners only to get their names in press.”

In a bid to discourage such endeavours, the Court dismissed the Writ Petition with costs of Rs.50,000/- which is to be deposited with the Supreme Court Advocates Welfare Fund within four weeks.

[Rajat Sharma v. Union of India, 2021 SCC OnLine SC 162, order dated 03.03.2021]

Case BriefsDistrict Court

Sessions Court: Dharmendra Rana, ASJ-02 disposed of Disha A. Ravi’s application for grant of bail.

Applicant’s counsel submitted that the applicant/accused had been falsely arrested and was brought to New Delhi without obtaining any transit remand and remanded to police custody. FIR had been registered for the offences punishable under Sections 153, 153-A, 124-A Penal Code, 1860.

The investigating agency maliciously added allegations under Section 124A IPC in order to portray a minor offence which is punishable upto life imprisonment. Further it was added that the investigating agency maliciously sought to sensationalize the allegations by way of invoking phrases such as “global conspiracy” only with a view o cause tremendous prejudice to the applicant/accused.

As per the prosecutions’ case, the toolkit documents circulating on social media and accessed by the police were inter alia seditious, showing disaffection against the government; the said document was allegedly created by an organisation called “Poetic Justice Foundation”. It was also added that the statements made in the document were not merely statements, but allegedly incited violations of public order and certain alleged acts of public disorder in both India and abroad on 26-01-2021.

The applicant allegedly created and was part of a WhatsApp group that included persons who allegedly edited the toolkit and also communicated with other persons about the document.

It has also been alleged that the applicant was also a part of another WhatsApp group which she deleted and also shared the document with other persons including Greta Thunberg.

Issue:

Whether the applicant/accused Disha was merely involved in peaceful protest and dissent against the farm acts or she was actually involved in seditious activities under the guise of protesting against the said legislation?

 Bench while interpreting the word ‘Sedition’ under Section 124A of IPC, referred to the Supreme Court decision in Kedar Nath v. State of Bihar, AIR 1962 SC 955, wherein the Court dealt with the acts which are proscribed and have a tendency to cause ‘disaffection against India’.

Law proscribes only such activities would be intended, or have intended, or have a tendency, to create disorder or disturbance of public peace by resort to violence. ‘Violence’ seems to be the gravamen of the charge.

In the decision of Bombay High Court, Arun G. Gowli v. State of Maharashtra, 1998 Cr. LJ 4481 (Bombay) it was observed that conspiracy cannot be proved merely on the basis of inferences. Inferences have to be backed by evidence.

Bench analysed the material collected by the investigating agency to substantiate the allegations of the ‘Larger Conspiracy’.

  • Engagement with secessionist forces

ASG pointed out that a pro-Khalistani secessionist group namely the ‘Poetic Justice Foundation’ and people associated with it are directly linked with creation of the “Toolkit” document.

Adding to the above, it was also submitted that the applicant/accused alongwith founders of PJF used social media to peddle support for secessionist Khalistan narrative in the guise of Farmers Protest.

Opinion of the Bench

It is not mere engagement with persons of dubious credentials which is indictable rather it is the purpose of engagement which is relevant for the purpose of deciding culpability.

Any person with dubious credentials may interact with a number of persons during the course of his social intercourse. As long as the engagement/interaction remains within the four corners of law, people interacting with such persons, ignorantly, innocently or for that matter even fully conscious of their dubious credentials, cannot be painted with the same hue.

 Hence, Court decided that in the absence of any evidence to the effect that the applicant/accused agreed or shared a common purpose to cause violence on 26-01-2021 along with founders of PJF, it cannot be presumed by resorting to surmises or conjectures that she also supported the secessionist tendencies or the violence caused, simply because she shared a platform with people, who have gathered to oppose the legislation.

 No evidence was brought to Court’s notice connecting the perpetrators of the violence on 26th January, 2021 with the said PJF or the applicant/accused.

  • Use of ‘Toolkit’

 It was added that in the main body of the ‘Toolkit’ there was a segment titled “Prior Action” which included Digital Strike through hashtags on 26th January, 2021 and Joining the Farmer’s march into Delhi and then back to the border.

Further, another part of the same document mentioned tasks such as disruption of India’s cultural heritage such as ‘Yoga’ and ‘Tea’ and targeting Indian embassies abroad.

Opinion of the Bench

Court opined on perusal of the ‘Toolkit’ that any call for any kind of violence was conspicuously absent in the same.

Citizens are conscience keepers of government in any democratic Nation. They cannot be put behind the bars simply because they choose to disagree with the State policies.

Bench also added that difference of opinion, disagreement, divergence, dissent, or for that matter, even disapprobation, are recognised legitimate tools to infuse objectivity in state policies.

While elaborating more with regard to a healthy democracy, Court added that an aware and assertive citizenry, in contradistinction with an indifferent or docile citizenry, is indisputably a sign of healthy and vibrant democracy.

Freedom of Speech and Expression includes the right to seek a global audience.

A Citizen has the fundamental rights to use the best means of imparting and receiving communication, as long as the same is permissible under the four corners of law and as such have access to an audience abroad.

Further, there was a mention with regard to hyperlinks in the toolkit by the ASG, the said links were with an intent to malign India abroad. Two such hyperlinks were analysed by the Court and nothing objectionable as found.

The imputations may be false, exaggerated or even with a mischievous intent but the same cannot be stigmatized being seditious unless they have tendency to foment violence.

  • Conduct of the applicant/accused

It was claimed that the applicant/accused created a WhatsApp group by the name of “Intl farmers strike” and added certain persons to the group.

Adding to the above, it was stated that she deleted the group chat from her phone in an attempt to destroy the crucial evidence linking her with the toolkit and PJF.

Also, it was submitted that, she tried her best to conceal her identity so that legal action could not be taken against her. It is further alleged that she gave a global audience to the secessionist elements by manipulating the support of international youth icon Ms Greta Thunberg.

Opinion of the Bench

Bench expressed that the creation of a WhatsApp group or being editor of an innocuous Toolkit is not an offence.

 Since, no link was found to be objectionable, mere deletion of the WhatsApp chat to destroy the evidence linking her with the toolkit and PJF became meaningless.

Nothing on record was found to suggest that the applicant accused subscribed to any secessionist idea.

Prosecution failed to point out how the applicant/accused gave a global audience to the ‘secessionist elements’.

Further, no evidence was brought to Court’s notice to support the allegation that violence took placed at the Indian Embassies pursuant to the sinister designs of the applicant/accused and her co-conspirators.

“…it is very difficult to collect evidence for the offence of conspiracy but I’m equally conscious of the fact that what is difficult to prove for the prosecution in the affirmative is virtually impossible for the defence to prove in the negative.” 

Bench stated that it is not aware of rule of law or prudence, that a person is mandatorily required to be detained in custody to be confronted with other co-accused persons.

Court added that the applicant accused is already reported to have been interrogated in police custody for almost about 5 days and placing further restraint upon her liberty on the basis of general and omnibus accusation would be neither logical or legal.

Hence, considering the scanty and sketchy evidence on record, Court opined that the applicant accused deserved to be released on bail subject to filing of personal bond of Rs 1 lakh with two sureties, subject to the following conditions:

  1. She shall continue to cooperate with the ongoing investigations and shall join the investigation as and when summoned by the IO;
  2. She shall not leave the country without the permission of the court;
  3. She shall scrupulously appear at each and every stage of the pro­ceedings before the Court concerned so as not to cause any obstruc­tion or delay to its progress.

[State v. Disha A. Ravi, Bail Application No. 420/2021, decided on 23-02-2021]


Advocates who appeared for the matter:

Sh. Irfan Ahmed, Ld. Addl. PP for State.
Sh. Abhinav Sekhri, Ld. counsel for applicant/accused.


Image Credits of Disha A. Ravi: ANI

Case BriefsHigh Courts

Jammu and Kashmir High Court: Sanjeev Kumar, J., addressed the instant petition whereby the petitioner was charged for sedition under Sections 124-A, 153-A, 153-B and 505(2), 120-B of IPC in connection with a viral audio clip containing demeaning content regarding armed forces. The Bench said,

“…unless the conversation has the tendency or intention of creating public disorder or disturbance of public peace by incitement to an offence, the same would not be sedition to attract the applicability of Section 124A or for that matter Sections 153A or 153B IPC.”

Facts of the Case

 On 18-06-2020 the police had registered an FIR against one Zakir Hussain and co-accused Nissar Ahman Khan in connection with a viral audio clip containing objectionable conversation, demeaning armed forces of the country in the backdrop of clashes between Indian Army and armed forces of China that took place in Galwan Valley of Ladakh region.  The conversation was found to be extremely objectionable containing derogatory references to the role of Indian Army in the Galwan misadventure of armed forces of China.

The petitioner contended before the Court that police had no authority to register an FIR as it had been provided in law that under Section 196 CrPC, the Court can take cognizance only on a complaint filed by District Magistrate and in the instant case no such complaint had been filed.

Observation and Analysis

The Court, observing the complexity of the matter had framed two moot points to be adjudicated in the instant case;

  1. What is the true import and scope of Section 124-A, 153-A, 153-B, 505(2) IPC when seen through the prism of Article 19(1) of the Constitution of India?

Constitutionality of Section 124A along with Section 505 of the IPC came up for consideration before Supreme Court in the case of Kedar Nath Singh v. State of Bihar, 1962 Supp (2) SCR 769, wherein the Court had held, “it is only when the words, written or spoken, etc., which have the pernicious tendency or intention of creating public disorder or disturbance of law and order, that the law steps in to prevent such activities in the interest of public order.” It had been concluded that Section 124A should strike the correct balance between individual fundamental right and the interest of public order.

In the backdrop of legal position adumbrated above, the conversation contained in the audio clip, would not constitute any of the offences alleged against the petitioner. The Bench observed,

“There is no material to demonstrate any criminal conspiracy between the petitioner and Nissar Ahmed Khan to commit sedition or prior concert or meeting of minds to commit the offences with which both have been charged by the police.”

 Undoubtedly, the petitioner had demeaned the Indian Forces and eulogized the armed forces of China Khan, which bring into contempt the Government established by law in India, but unless the conversation had the tendency or intention of creating public disorder or disturbance of public peace by incitement to an offence, the same would not be sedition to attract the applicability of Section 124A or for that matter Section 153A or 153B IPC.

  1. Whether FIR can be registered for commission of offences under Section 124A, 153A, 153B, 505(2) and 120-B IPC without prior sanction of the competent authority as envisaged in Section 196 of the Code of Criminal Procedure?

 From a perusal of Section 196(1), it could be transpired that the offences punishable under Section 124A and Section 153A of the IPC could not be taken cognizance of by the Court except with previous sanction of the Central Government or of the State Government. It is, thus, evident that,

The bar created by the provisions of Section 196 CrPC was against taking of cognizance by the Court and there was no bar against registration of FIR or investigation by the police if information received by the police discloses commission of cognizable offence.

In the instant case all the offences, with which the petitioner had been charged, were cognizable. It was, thus, well settled and beyond any pale of doubt that the provisions of Section 154 CrPC were not controlled by the provisions of Section 196 and both operate at different points of time and at different stages of a criminal case.

Conclusion

 In the light of above, the Bench laid down a detailed guideline regarding Section 196 of CrPC,

  1. For making out an offence under Sections 124A, 153A, 153B and 505(2) IPC, it was necessary to demonstrate that the words written or spoken or signs or visible representation had the tendency or intention of creating public disorder or disturbance of public peace by incitement to offence. (Kedar Nath Singh v. State of Bihar, 1962 Supp (2) SCR 769,);
  2. That the provisions of Section 196 CrPC did not, in any manner, control Section 154 of the Code of Criminal Procedure, in that, the police was competent to register an FIR, if information received by it discloses commission of cognizable offence, even if it was referable to Section 196;
  3. Section 196 CrPC would come in operation at the stage of taking of cognizance by the Court and the Court would have to refuse to take cognizance of the offence(s) referable to Section 196 CrPC, if there was no previous sanction by the Central Government or State Government or District Magistrate, as the case may be.
  4. In case, report with regard to the offence(s) having reference to Section 196 CrPC was presented before the Judicial Magistrate without obtaining prior sanction from the competent authority, the Court should not take its cognizance but return the same to be presented only after seeking previous or prior sanction of the competent authority.
  5. The Court should be deemed to have taken cognizance only if it had applied its mind to the Final Police Report submitted before it in terms of Section 173 CrPC with a view to proceed further in the manner provided in law.
  6. That the Magistrate, who would find the police report not in consonance with Section 196 CrPC should not retain the report and proceed in the matter rather it would return the same to the prosecution.

Hence, the petition was allowed and all the criminal proceedings pending against the petitioner including the impugned FIR were quashed. [Zakir Hussain v. UT of Ladakh, 2021 SCC OnLine J&K 64, decided on 11-02-2021]


Kamini Sharma, Editorial Assistant has put this story together.

Case BriefsSupreme Court

Supreme Court: In a relief to journalist Vinod Dua, the 3-judge bench of  U U Lalit, M M Shantanagoudar and Vineet Saran, JJ, in a special hearing on Sunday restrained the Himachal Pradesh police from arresting him till July 6 in a sedition case lodged against him in the state over his Youtube show. The Court said that Dua will have to join the investigation and there shall be no stay on the ongoing probe undertaken by the Himachal Pradesh police. It also issued notices to the Centre and the state government and sought their responses within two weeks.

Here’ what the Court directed:

(a) Pending further orders, the petitioner shall not be arrested in connection with the present crime;

(b) However, the petitioner in terms of the offer made by him in his communication dated 12.06.2020, shall extend full cooperation through Video Conferencing or Online mode; and

(c) The Himachal Pradesh Police shall be entitled to carry on the investigation including interrogation of the petitioner at his residence after giving him prior notice of 24 hours and complying with the Social Distancing norms prescribed during Covid-19 Pandemic.

The Court further directed that the affidavit in reply filed on behalf of the State shall indicate the steps taken during investigation and a complete Status Report shall be filed before the next date of hearing.

“The concerned Investigating Officer shall remain personally present in case the open Court hearing is resumed by this Court or shall be available in case the proceedings are taken up through Video Conferencing mode.”

Senior advocate Vikas Singh, appearing for Dua, not only sought staying of the FIR rather demanded its quashing, saying the fundamental right of freedom of speech and expression of the journalist has been taken away by filing of the sedition case.

” if such charges are slapped against individuals then many of them may fall within the ambit of sedition charges.”

He said that petitioner is willing to show the video clip of the show to the court.

Granting interim relief, the bench said that it was not going into the details of the matter and will also not stay the probe.

Solicitor General Tushar Mehta, appearing for the Centre and the state government, accepted the notice and said he would file the reply in two weeks.

The Delhi High Court had earlier stayed an investigation into another case against Dua in connection with his show on YouTube. The police in Shimla had summoned him for questioning over a sedition complaint by a local BJP leader. Like the complaint lodged in the national capital, the FIR registered against the senior journalist in Shimla is also over his YouTube show on communal riots in Delhi earlier this year. According to the complaint, he had accused Prime Minister Narendra Modi of using “deaths and terror attacks” to get votes.

Dua has been charged under sections 124A (sedition), 268 (public nuisance), 501 (printing matter known to be defamatory) and 505 (statements conducive to public mischief) on the basis of a complaint last month by BJP’s Mahasu unit president Ajay Shyam.

On Thursday, Dua was sent a notice asking him to appear before the police in Shimla. Himachal Pradesh police personnel had arrived at his Delhi home on Friday morning to serve the notice. In his reply to the notice, Dua said he cannot visit Kumarsain police station because of his health, age and the COVID-19 protocol for travel and quarantine.

BJP leader Ajay Shyam had complained that Dua made bizarre allegations on his 15-minute YouTube show on March 30. The BJP leader alleged that Dua had instigated violence against the government and the prime minister by spreading false and malicious news.

On Wednesday, the Delhi High Court had stayed till June 23 an investigation into a similar case filed by BJP spokesperson Naveen Kumar.

The court had said there was an unexplained delay of nearly three months in filing the complaint.

[Vinod Dua v. Union of India, Writ Petition (Criminal) No.154/2020, order dated 14.062020]

(With inputs from PTI)

Hot Off The PressNews

Supreme Court: A bench headed by AM Khanwilkar, J has refused to entertain a plea seeking framing of a proper mechanism to deal with alleged misuse of the sedition law by the government machinery. Dismissing the plea filed by a social activist, the Court said it was open for the petitioner to approach the appropriate authority.

At the outset, the court told advocate Utsav Singh Bains, appearing for the petitioner, that he could not seek quashing of an FIR in a sedition case filed against the management of a Karnataka school for allegedly allowing students to stage an anti-CAA and anti-NRC drama.

Bains told the bench that he was not pressing for a prayer of FIR quashing and that the petitioner has also sought a direction for framing of a proper mechanism to deal with the alleged misuse of the sedition law.

The bench said,

“Let the affected party come and we will hear them. Why it should be done at your instance,”

(Source: PTI)

Hot Off The PressNews

Supreme Court: The Court has extended the interim protection from arrest to activist Gautam Navlakha by four more weeks in Bhima Koregaon case. The two-judge bench headed by Justice Arun Mishra allowed him to approach trial court for pre-arrest bail. Navlakha has to apply for pre-arrest bail in the meantime. The lawyer appearing for Maharashtra government, however, objected to granting of any interim protection from arrest to Navlakha.

The Court had, on October 4, extended the interim protection from arrest to Gautam Navlakha till October 15 in the matter.
Chief Justice Ranjan Gogoi, Justice S Ravindra Bhat and a bench of Justices NVmRamana, R Subhash Reddy, and BR Gavai had earlier recused themselves from hearing Navlakha’s plea seeking quashing of an FIR registered against him in the case.

Navlakha was booked under provisions of the Unlawful Activities (Prevention) Act (UAPA) and various sections of the Indian Penal Code (IPC), including waging a war and sedition. He is accused of having links with banned Naxal  groups.

By its recent judgment, the Bombay High Court had arrived at the prima facie conclusion that there is sufficient material for the investigation to continue against Navlakha. The High Court had, however, said that the observations made in its order are only prima facie in nature and that they should not influence the trial court’s decision in the matter.

The High Court had also extended the interim protection from arrest given to Navlakha giving time to him to approach the Supreme Court.
The Maharashtra government has also filed a caveat petition in the matter seeking to be heard before any orders are passed by the apex court.

(Source: ANI)

Case BriefsHigh Courts

Calcutta High Court: A Division Bench of Sanjib Banerjee and Suvra Ghosh, JJ. allowed the appeal filed by two persons who were convicted by the trial court for offence of waging war against the Government of India and set aside the judgment on the grounds of absence of a link between accused and alleged charges.

In the present case, the police received information about a meeting being held at a village where seditious lectures were being delivered. A few members of the said assembly of 30 to 40 people had firearms with them. When police arrived at the spot, the people started fleeing and accused-appellants herein were arrested. Certain seditious pamphlets and leaflets were recovered from their possession. A complaint was registered against them and chargesheet was filed against the appellants and charges were framed against them under Sections 121 A, 122, 124 A of Penal Code, 1860, Sections 25(a) and 35 of Arms Act, 1959 and Sections 4 and 5 of Explosive Substances Act, 1908. The appellants pleaded not guilty to the charges and the trial court convicted the appellants of the charges levied against them and sentenced them accordingly. Being aggrieved by the said judgment, the appellants preferred this appeal.

Counsels for appellants Amarta Ghose, Anirban Tarafder, Somdhuti Parekh, Rimpa Rajpal submitted that the witnesses were forcibly brought by the police which was not required, since under Section 87 of the Code of Criminal Procedure, 1973 the Court had ample power to ensure attendance of witnesses and prosecution had no power with regard to same. It was submitted that neither any explosive substance was recovered from the place of occurrence nor was any firefight was detected. Further, no incriminating article was found either in the possession of the appellant or in his house.

According to prosecution, in order to avoid delay in the trial of the case due to the absence of witnesses, the police took it upon themselves to bring the witnesses to Court and arrange for their stay. There was no suggestion to the fact that the police influenced or coerced the witnesses to adduce evidence or tutored them. It was submitted that since guilt of the appellants had been proved to the hilt and that conviction must be affirmed.

The Court noted that in their statements recorded under Section 313 of the Code, the appellants/accused gave a detailed account regarding their arrest, detention, search and seizure which sharply contradicted the case made out by the prosecution. It observed that the arresting officers had not followed the procedure laid down in D.K Basu v. State of West Bengal, (1997) 1 SCC 416. It was further opined that no firearm or ammunition was seized from the possession of the accused-appellants and such arms or ammunition were also not found in any premises occupied by them. Therefore, no responsibility could be thrust upon them for a commission of any offence under the Arms Act, 1959. Lastly, no explosive substance was recovered from the alleged place of occurrence, and thus offence under Explosives Act also could not be made out.

In view of the above, the Court held that prosecution had miserably failed to establish the charges levied against the appellants and there was no evidence on record that linked accused-appellant to the alleged charges. It was observed that the prosecution case suffered from severe contradictions and thus benefit of doubt could be granted to the appellants.

The Court also opined that it was trite law that the burden of proving a charge against an accused lied solely upon the prosecution and the prosecution was required to bring evidence which should be cogent, compact, believable and trustworthy as to become incompatible with the innocence of the accused. It was opined that the trial court had failed to appreciate the evidence in the proper perspective and missed the salient point that the link between the appellants and the incriminating material produced by the prosecution was non-existent. Thus, the appeal was allowed and the impugned judgment was set aside.[Patit Paban Halder v. State of West Bengal, CRA No. 337 of 2006, decided on 21-06-2019]

Op EdsOP. ED.

Introduction

In India, the right to freedom of speech and expression is endowed under Article 19(1)(a) of the Constitution. Free speech allows the conveyance of an individual’s ideas and opinions. Its expression is instrumental in permitting individuals their aspiration of achieving a sensation of self-fulfilment. A liberal democracy is characterised by governance by the self (in India through a choice-based representation) and affording the individual to market its modulating opinion across all hues. In such a society, a conflict between the State and the individual’s opinion is bound to exist. Punishing or curtailing an individual for depreciating the authority of the judicial system or State contradicts the abstract theory of the promotion of a right to free speech and expression.

Jurisprudence on free speech and constitutional morality

According to Bhatia[1], two trajectories pertaining to Indian free speech exist. Firstly, the “moral paternalistic” approach and secondly, the “liberal autonomous approach”. The former does not endow individual’s abundant freedom since it views individuals as corruptible and intrinsically ferocious with a tendency to engage in violence. The latter approach is relatively more tolerant and permissive viewing individuals as entities competent to decide for oneself, this approach respects an individual’s intellectual capabilities has relatively fewer restrictions imposed on them. Bhatia further constructs on Kant’s ideology elucidating on the equality of individuals. Relying on the premise that all individuals are equivalent, every individual’s ability to communicate and express oneself should be of equal. Subsequently, no fringe nor political nor majoritarian group should be in a position to asphyxiate the expression of another. He further relies on the Athenian philosophy that drew an inverse nexus between free speech and slavery.[2]

Dworkin[3], similarly provided two justifications as the underlying basis for the arguments advocating free speech. Firstly, permitting individuals to converse and express themselves freely allows the promotion of good policies and serves as a check on relatively poor ones, for this approach an inherent comprehension of the concept of free speech is required. Secondly, a broader justification is the equal endowment of autonomy to individuals and the corresponding appreciation and respect for their right to speak freely.

Bhatia[4] further stipulates the “constitutionalising” of all dimensions of free speech. He promotes the extension of protection of free speech and in the scenario where such protection is unfeasible and impracticable, it should be restrained solely by the Constitution based on certain values and principles of the Constitution as opposed to the prevalent social convictions of the qualifications of morality and decency which have a tendency to be ambiguous and non-uniform.

Constitutionality of Section 124-A[5] IPC

The Supreme Court had constitutionalised and limited the scope of sedition in Kedar Nath Singh v. State of Bihar[6] by restricting it to instances where individuals through their speech and expression disrupt the law or provoke and incite violence. However, in practice and past trend showcases that despite the existence of this stipulation, sedition charges are levied on individuals for mere criticism of the Government in the public arena, mere expressions of detest and abhorrence for State policies, religion and showcasing contempt against what is morally acceptable in our society.

Thus, prevailing present day practices are not in accordance with the judicial intention at the time of articulation of the Kedar Nath judgment[7]. Based on this premise and the following grounds, certain reasons provide why sedition laws should be repealed from the Indian nation State.

Firstly, the overbreadth test should be applied to a provision to gauge its constitutionality. If a provision is excessively ambiguous, very subjective pertaining its applicability and its breadth very expansive, this could lead to obscurity in its practice and its overbreadth could serve to its detriment. Applying this test to Section 124 of the Penal Code, the exact interpretation of the word “disaffection” is uncertain and indeterminable. Despite, the elaboration of the terminology in the explanation to the section to be inclusive of disloyalty and feelings of enmity, the skyline of this provision is nebulous. Article 19(1)(a) endows individuals the fundamental right to freedom and expression which is reasonably restricted by Article 19(2) in the interest of public order when pertaining to sedition. However, in India, recent trend showcases the application of sedition under the IPC being charged on individuals on grounds barring the instances limited to interest of public order. Given the haziness in the practical applicability of this provision, it should be rendered unconstitutional.

Secondly, this test is further extended to the vagueness test, whereby an individual should be aware of articulation of the provision, what it seeks to condone and the consequences attached. Given the obscurity attached with the provision, an individual may be dubious to the horizons of the provision which would lead to a negative externality such as the chilling effect.

Thirdly, Section 124-A IPC cements a certain chilling effect on the generic public. This section identifies sedition as a criminal offence and attaches with the provision excessive damages and penalties for instances of sedition. In India, however, sedition charges in practice are not limited to solely instances “in the interest of public order” but also extend to occurrences of defamation, deviations from the accepted standards of morality and decency, etc. In the backdrop of substantial punishments, the provision serves as a disincentive on the freedom of speech endowed to citizens under Article 19(1)(a) of the Constitution.

Fourthly, despite limiting the scope in the 1962 provision, the Court did not establish a reasonable nexus[8] between a speech and its role as an instrument to the causation of public disorder. Although, in recent years the courts have initiated the identification of occurrences whereby this nexus exists, there is no absolute provision in existence. In the absence of such a provision with the restriction imposed in Article 19 of the Constitution, the chilling effect may supersede in society, which is in a direct contradiction of the articulation of the freedom endowed under Article 19(1)(a).

In Shreya Singhal v. Union of India[9], the Court laid that regardless of the degree of derogation and insult, a certain degree of proximity needed to exist between the utterance and the potentiality of public disorder. This is progressive step in the direction of laws pertaining to sedition as it further limits the scope of sedition. The Court in the case positioned the requirement for a substantive and a procedural analysis of the restrictive law concerned to determine its reasonability.

Thus, whilst applying the fundamentals of this case to Section 124-A IPC, a substantive analysis would showcase the provision to be excessively broad in the interpretation of “disaffection”, thereby fulfilling the overbreadth and vagueness test. The procedural analysis of the punishment would prove it be a draconian provision. Given the obscurity concerning the actual materialisation of disorder and violence, life imprisonment as a punishment for the mere potentiality of inciting violence through speech seems to be superabundant, thereby fulfilling the chilling effect. Thus, the restriction on free speech and its recognition as an offence under Section 124-A IPC does not seem reasonable.

Schenck v. United States[10], elucidated the required proximity between the utterance of speech and incitement of violence. It lays the possibility of danger or the intent to bring it about must be imminent or immediate. This case established the “bad tendency test”.[11] Brandenburg v. Ohio[12], laid the “clear and present” danger test, whereby the State was prohibited by the US Constitution from repressing speech and its advocacy barring the possibility of it causing an immediate harm to law by an illicit act or if it aimed at causing such an action. In the US under the 1st amendment, further speech is promoted as opposed to necessitating silence to remedy bad or injurious speech. Thus, in the US even though some sedition laws have been retained, the courts are dispensing extensive protection to the right of free speech.

In India, such a linear demarcation does not exist and in the scenario where the implementation of such tests are attempted, reasonable restrictions serve as a hindrance. Even though such tests was applied in Arup Bhuyan v. State of Assam[13], the Supreme Court has rejected such tests in other cases resulting in no fixed applicability.

India’s sedition law is derivative from the colonial era. In 2009, the Britain abolished its sedition laws to endorse the freedom of speech and expression. This abolition was on the premise that such laws were in contradiction to Britain’s human rights commitments and were also responsible in inducing a chilling effect on the right to freedom of speech and expression.

In 2007, New Zealand abolished its sedition law based on the Crimes (Repeal of Seditious Offences) Amendment Act, 2007[14]. It has addressed comparable offences under other conventional criminal provision.[15]

Conclusion

Thus, articulation of Section 124 of the Penal Code appears to subdue and extinguish any forms of dissent present in society. Such a tendency contradicts the inherent ingredients which characterise a democracy. The existence of such provision in a State aiming to progress appears obsolete. The punishment associated with it render the provision draconian. The continuance of such a provision induces a chilling effect on the freedom of speech and expression, which is a supposed fundamental right provided under Article 19(1)(a) of the Constitution. There is a need for India to progress and alter its sedition laws in accordance with the transitions in society. Further, given sedition covers a broad ambit of actions, each act should be governed by its individual provisions, rather than one generic offence with such a stringent punishment.

 

 *  2nd year student of LLB, Jindal Global Law School, Sonipat.

[1]  Bhatia, Gautam, 2016, Offend, Shock, or Disturb: Free Speech under the Indian Constitution. 1st Edn., Oxford University Press, USA.

[2] Mehta, Avantika, 2016, Offend, Shock, or Disturb: The limitations to free speech in India. Hindustan Times,<http://www.hindustantimes.com/art-and-culture/a-new-book-looks-at-limitations-to-free-speech-in-india/story-mF9tcylLiAxpiS255zL16H.html>.

[3]  Venkataramanan, K., 2016, How free can free speech be?, The Hindu, <http://www.thehindu.com/opinion/op-ed/how-free-can-free-speech-be/article8289947.ece>.

[4]  Venkataramanan, K., 2016, How free can free speech be?, The Hindu, <http://www.thehindu.com/opinion/op-ed/how-free-can-free-speech-be/article8289947.ece>.

[5]  124-A. Sedition.—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 estab­lished by law in [India], [***] shall be punished with [im­prisonment for life], to which fine may be added, or with impris­onment which may extend to three years, to which fine may be added, or with fine.

        Explanation 1.—The expression “disaffection” includes disloyalty and all feelings of enmity.

        Explanation 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.

        Explanation 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.

[6] 1962 Supp (2) SCR 769 : AIR 1962 SC 955.

[7]  1962 Supp (2) SCR 769 : AIR 1962 SC 955.

[8]  Parthasarathy, Suhrith, 2016, Sedition and the Government, The Hindu, <http://www.thehindu.com/opinion/lead/Sedition-and-the-government/article14082471.ece>.

[9]  (2015) 5 SCC 1.

[10]  1919 SCC OnLine US SC 62 : 63 L Ed 470 : 249 US 47 (1919).

[11]  Liang, Lawrence, 2016, Interview: Sedition and the Right to Freedom of Expression. The Wire, <https://thewire.in/42412/interview-sedition-and-the-right-to-freedom-of-expression>.

[12]  1969 SCC OnLine US SC 144 : 23 L Ed 2d 430 : 395 US 444 (1969).

[13]  (2015) 12 SCC 702.

[14]  Crimes (Repeal of Seditious Offences) Amendment Act, 2007, <http://www.legislation.govt.nz/act/public/2007/0096/latest/whole.html>.

[15]  Dutta, Damayanti, 2016, The Sedition joke: Going from bad to worse, Indiatoday.intoday.in. <http://indiatoday.intoday.in/story/sedition-law-india-government-offence/1/759345.html>.

Case BriefsHigh Courts

Gujarat High Court: Hearing upon the applications filed by Patidar Anamat Andolan Samiti’s (PAAS) firebrand leader and convener Hardik Patel, who was charged with sedition, the bench of A.J. Desai, J., granted him bail along with certain conditions wherein Patel will have to refrain from taking undue advantage of the liberty provided to him. The Court further directed Patel to issue a declaration that he is ready to remain outside the territorial limits of the State of Gujarat for a period of six months from the date of his release.

The present case is a result of the statewide unrest that prevailed in the State of Gujarat last year where there was an agitation led by the leaders of PAAS demanding reservations in government jobs and educational institutions for the Patidar community under the Other Backward Classes (OBC) category. As per the contentions of Zubin Bharda representing Hardik Patel, the prosecution has vehemently tried to portray that Patel is the one who is solely responsible for the violence that spread in the aftermath of the rallies that were held in the support of the cause championed by PAAS. It was further argued that grave charges were leveled against the applicant under Section 121 of IPC, as if his demand for reservation was akin to waging war against the State. The contentions were opposed by the Public Prosecutor, Mitesh Amin, who stated that the applicant had used the wide array of social networking sites and internet applications such as ‘watsapp’ to mobilize the members of Patidar community and thereby had conspired to overawe the State Government.

Perusing the contentions of the parties and referring to landmark decisions on sedition, the Court observed that the applicant and his association namely PAAS had called on the members of Patidar community to the various rallies that furthered their cause of attaining reservation under the OBC category. The Court also studied the speeches and the interviews given by the applicant and observed that along with the applicant, several other members of the Patidar community were interested in getting reservation. Therefore the applicant alone cannot be kept behind the bars when other leaders of the agitation have been already granted bail. Considering the principles laid down by the Supreme Court in respect to Section 439 of the CrPC, the Court decided to grant bail to the applicant but with certain mandatory conditions. [Hardik Bharatbhai Patel v. State of Gujarat, 2016 SCC OnLine Guj 824, decided on 08.07.2016]

Case BriefsDistrict Court

Patiala House District Court, New Delhi: While hearing the bail applications of Anirban Bhattacharya and Umair Khalid under Section 439 CrPC, the Court granted interim bail to both the applicants/accused for a period of 6 months subject to forming a personal bond.  In the present case, both the applicants/accused were charged with Section 124 A of Penal Code, 1860 for raising anti-national slogans at the JNU Campus. Investigation revealed that Anirban Bhattacharya and Umair Khalid had applied to hold the event and were the main organizers of the event which ended in raising the anti-national and anti-constitutional slogans. Sh. Trideep Pais, counsel on the behalf of the applicant/accused Anirban Bhattacharya submitted that sloganeering did not lead to any further incident and the allegations against the accused persons fell short of ingredients of Section 124 A Penal Code, 1860. Sh. Jawahar Raja, counsel for the applicant/accused Umar Khalid made similar submissions.

The Court after perusal of the arguments advanced by counsels, relying on Prasanta Kumar Sarkar v. Ashis Chatterjee, (2010) 14 SCC 496 granted bail to the accused persons keeping in view that no previous criminal record of any nature found and also the fact that nothing has been brought on record which could indicate that they are likely to abscond from the jurisdiction of Court. Therefore, the Court granted interim bail to both the applicants/accused for a period of 6 months subject to forming a personal bond in sum of Rs. 25,000 with one surety of the like amount. The Court also directed the accused persons for not leaving Delhi without the permission of the Court during the bail period. [State v. Anirban Bhattacharya, Bail Application No. 1153/16 & 1154/16, decided on 18.03.2016.]

 Read the order Here

High Courts

 

Bombay High Court: In a major relief to cartoonist Aseem Trivedi, a bench comprising of Mohit Shah, CJ and N.M. Jamdar, J has held that citizens have the right to say or write anything criticizing the government and its measures as far as it does not incite violence or create problems in law and order. The Court observed that after having seen the seven cartoons drawn by the cartoonist, they didn’t find any  element of wit or humour or sarcasm in them. It only displayed anger and disgust. But that does not mean that it attracted sedition charges,

The Court stated that it is clear that the provisions of Section 124A of IPC cannot be invoked to penalize criticism of the persons engaged in carrying on administration or strong words used to express disapprobation of the measures of Government with a view to their improvement or alteration by lawful means. Every citizen has a right to say or write whatever he likes about the Government, or its measures, by way of criticism or comments, so long as he does not incite people to violence against the Government established by law or with the intention of creating public disorder. The section aims at rendering penal only such activities as would be intended, or have a tendency, to create disorder or disturbance of public peace by resort to violence.

The Court also accepted a set of guidelines, as pre-conditions to police for invoking sedition charges only if an act was an incitement to violence or disturbed pubic order. A legal opinion in writing, along with reasons, must also  be submitted before any charge of sedition was to be applied in any case. Sanskar Marathe vs. State of Maharashtra, 2015 SCC OnLine Bom 587, decided on March 17, 2015