Case BriefsDistrict Court

   

Saket Court, Delhi: In an application filed seeking bail for Sharjeel Imam, (‘bail-applicant’) who is a JNU student alleged for making inflammatory speeches at Jamia during Anti CAA-NRC protests in 2019, Anuj Agrawal J., granted bail in a sedition case being covered u/s 436-A Criminal Procedure Code.

In an earlier bail application of the accused seeking regular bail, the Court observed

As far as allegations against applicant/accused for offences under section 143/147/148/149/186/353/332/333/307/308/427/435/323/341/120-B/34 IPC & 3/4 Prevention of Damage to Public Property Act & under section 25/27 Arms Act with aid of section 109 IPC are concerned, after going through the record, I am of the prima facie view that the evidence in support of the allegations (rioters got instigated by the speech dated 13.12.2019 of applicant/accused and thereafter they indulged in the acts of rioting, mischief, attacking the police party etc.), is scanty and sketchy.

Further, there is no evidence corroborating the version of prosecution that alleged rioters/co-accused were a part of the audience addressed by applicant/accused Sharjeel Imam on 13.12.2019.

The theory as propounded by investigating agency leaves gaping holes which leaves an incomplete picture unless the gaps are filled by resorting to surmises and conjectures or by essentially replying upon the disclosure statement of applicant/accused Sharjeel Iman and co-accused.

The Court noted that the said observations have not been set-aside by any Superior Court till date and as far as remaining offences u/s 124-A and 153-A Penal Code, 1860 (‘IPC’) are concerned, the prosecution for offence u/s 124-A IPC in all pending cases has already been directed to be kept in abeyance by Supreme Court in S.G. Vombatkare v. Union of India, W.P. (C) No. 682/2021 vide order dated 11-05-2022.

The Court further noted that as far as offence u/s 153-A IPC is concerned, it is not disputed that the alleged act of applicant/accused is punishable with maximum imprisonment up to three years as provided u/s 153-A (1) IPC and the applicant/accused has been in custody for more than 31 months, having been arrested on 17-02-2020 in the instant case.

The Court concluded that considering the submissions made at Bar, in view of the directions of Supreme Court in S.G. Vombatkare (supra) and keeping in view the earlier order dated 22.10.2021 of this Court, the case of applicant/accused is covered u/s 436-A CrPC and therefore instant application deserves to be allowed.

Thus, the Court admitted Sharjeel Imam to bail on furnishing personal bond in the sum of Rs. 30,000/- with one surety of like amount subject to the condition that he shall always remain available on a working mobile number and shall intimate the concerned IO about change of address, if any.

[Sharjeel Imam v. State, Bail Matters 2976 of 2022 in FIR No. 242 of 2022, decided on 30-09-2022]


Advocates who appeared in this case:

Sh. Amit Prasad, Ld. Special PP, for the State through VC;

Sh. Talib Mustafa, Sh. Ahmad Ibrahim and Sh. Kartik Venu, Ld. Counsels, for the Applicant/Accused;

IO/Inspector Mantoo Singh in person.


*Arunima Bose, Editorial Assistant has put this report together.

Gauhati High Court
Case BriefsHigh Courts

Gauhati High Court: The single Bench of Ajit Borthakur, J., has under Section 439 of the Criminal Procedure Code, 1973, granted bail to a college student who was accused, under Sections 10(a)(iv) and 13(1)(b) of the Unlawful Activities (Prevention) Act, 1967 (UAPA), of supporting a banned terrorist organization, United Liberation Front of Asom-Independent (ULFA-I) through a Facebook post a The Bench held that the words in the post expressed her feelings without making any reference to any particular organization.

Facts and Submissions made

An FIR was registered against the petitioner for posting on Facebook alleged words “Swadhin Surjyar Dikhe Akou Ekhuj, Akou Korim Rashtra Droh” (One more step towards independent sun, again, we shall do seditious act) and was under judicial custody for 64 days since 18-05-2022.

The petitioner through her counsel submitted that she was a student of B.Sc. and was not involved in the commission of the alleged offences. It was further submitted that her Facebook account got hacked and hence, she did not have any access to it. Therefore, considering the duration of her Judicial Custody, she should be granted bail subject to any conditions.

The Public Prosecutor submitted that through the post the petitioner had threatened the sovereignty of India and had boosted up the unlawful objective of the said banned organization. Therefore, the detention of the petitioner should be continued till the investigation gets completed.

Analysis and Decision

In the light of the above facts and provisions laid under Articles 19(1)(a) and 19(2) of the Constitution of India, and the definition of “unlawful activity” given under Section 2(o) of the UAPA, the Bench observed that the contents of the relevant Facebook post, are in the form of a poetic line, which expressed her feelings without any reference made to a particular organization.

Therefore, the Bench granted bail to the petitioner and opined that further continuation of the judicial custody of the petitioner may not be required in the interest of the ongoing investigation.

[Borshahsri Buragohain v. State of Assam, 2022 SCC OnLine Gau 1095, decided on 21-07-2022]


Advocates who appeared in this case :

A. Dihingia, Advocate, for the Petitioner;

PP, Assam, Advocate, for the Respondent.

Legal RoundUpSupreme Court Roundups

Unmissable Stories


Sedition Law under scanner| All pending cases to be kept in abeyance; Centre/States urged not to register fresh cases till Section 124A is reviewed

“…we expect that, till the re-examination of the provision is complete, it will be appropriate not to continue the usage of the aforesaid provision of law by the Governments.”

Read more…

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COVID-19| No individual can be forced to be vaccinated; holds Supreme Court. Restrictions on unvaccinated persons to be revised for now

“This judgment is not to be construed as impeding, in any manner, the lawful exercise of power by the executive to take suitable measures for prevention of infection and transmission of the virus in public interest, which may also take the form of restrictions on unvaccinated people in the future, if the situation so warrants.”

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Rajiv Gandhi assassination: Supreme Court sets AG Perarivalan free after 32 years of incarceration

Perarivalan’s petition under Article 161 remained pending for two and a half years following the recommendation of the State Cabinet for remission of his sentence and continued to remain pending for over a year since the reference by the Governor.

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Navjot Singh Sidhu to undergo one-year rigorous imprisonment in 1988 road rage case

“A disproportionately light punishment humiliates and frustrates a victim of crime when the offender goes unpunished or is let off with a relatively minor punishment as the system pays no attention to the injured’s feelings.”

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Aadhaar Card for Sex Workers| Supreme Court bats for sex workers’ right to dignity; directs UIDAI to issue Aadhaar Card without insisting on address proof

“…basic protection of human decency and dignity extends to sex workers and their children, who, bearing the brunt of social stigma attached to their work, are removed to the fringes of the society, deprived of their right to live with dignity and opportunities to provide the same to their children.”

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‘Shivling’ in Gyanvapi Mosque a complex

‘Protect ‘Shivling’ but don’t stop Namaz’

Also read: SC transfers the matter to a senior and experienced District Judge

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Hindu widow’s pre-existing right to maintenance automatically ripens into full ownership when she is in settled legal possession of the property

“There remains no shadow of doubt that a Hindu woman’s right to maintenance was not and is not an empty formality or an illusory claim being conceded as a matter of grace and generosity. It is a tangible right against the property, which flows from the spiritual relationship between the husband and the wife.”

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Right to residence under DV Act not restricted to actual residence; Domestic relationship not necessary to be subsisting at the time of filing of application

The expression ‘right to reside in the shared household’ would include not only actual residence but also constructive residence in the shared household.

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No universal rule to fill vacancies on the basis of the law which existed on the date when they arose; Supreme Court overrules 1983’s YV Rangaiah ruling

Noticing that a number of decisions have followed the decision in Rangaiah but far more decisions have distinguished it, the Supreme Court decided to examine the issue afresh and came to the conclusion that the broad proposition formulated in Rangaiah did not reflect the correct constitutional position.

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IGST on Ocean Freight for imports unconstitutional

“If Indian shipping lines continue to be taxed and not their competitors, namely, the foreign shipping lines, the margins arising out of taxation from GST would not create a level playing field and drive the Indian shipping lines out of business.”

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Sheena Bora murder| Indrani Mukerjea gets bail after being in custody for 6.5 years

Indrani is charged of kidnapping her daughter with intention to murder and committing murder after entering into a criminal conspiracy.

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Supreme Court grants interim bail to SP Leader Azam Khan; Directs him to seek regular bail within two weeks

Taking into consideration the delay in implication of Azam Khan and the nature of the allegations made therein, the Court was of the view that it will not be in the interest of justice to deprive him of his personal liberty, particularly when in respect of 87 criminal cases/FIRs, he has already been released on bail.

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Case load on NGT low, No need to set up Benches in every State; High Court’s jurisdiction unaffected: Supreme Court upholds constitutionality of NGT Act

The seat of the NGT benches can be located as per exigencies and it is not necessary to locate them in every State.

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Over 90, 000 Reassessment Notices issued after April 1, 2021 saved as Supreme Court directs them to be treated as notices under Section 148A of Income Tax Act

The bench of MR Shah* and BV Nagarathna, JJ has modified the order passed by the Allahabad High Court wherein it had quashed several reassessment notices issued by the Revenue, issued under section 148 of the Income Tax Act, 1961, on the ground that the same are bad in law in view of the amendment by the Finance Act, 2021 which has amended Income Tax Act by introducing  new provisions i.e. sections 147to151 w.e.f. 1st April, 2021.

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Most Read Story of the Month


Cheque issued as a security and not in discharge of legally recoverable debt; Is the contention sufficient to quash proceedings under N.I. Act at pre-trial stage? SC examines

“The quashing proceedings must not become an expedition into the merits of factual dispute, so as to conclusively vindicate either the complainant or the defence.”

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Explainers



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Insurance companies refusing claims on flimsy/technical grounds must stop! Don’t ask for documents that insured can’t produce

In a case where an Insurance Company had refused to settle an insurance claim on non-submission of the duplicate certified copy of certificate of registration of the stolen vehicle, the bench of MR Shah* and BV Nagarathna, JJ has held that while settling the claims, the insurance company should not be too technical and ask for the documents, which the insured is not in a position to produce due to circumstances beyond his control.

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Change of venue does not result in change of the seat of arbitration

The Court held that holding otherwise would create a recipe for litigation and (what is worse) confusion which was not intended by the Act.

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Land Acquisition| Compensation under 2013 Act cannot be claimed if award under 1894 Act couldn’t be passed due to pendency of proceedings or interim stay

“The intention of the Parliament while enacting Section 24(1) of the Act, 2013 cannot be to give benefit to a litigant, who has obtained a stay order and because of that the award could not be declared and thereafter the litigant may be awarded the compensation as per Act, 2013.”

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Showing undue favour to a party under the guise of passing judicial orders is the worst kind of judicial dishonesty

“A judge must decide the case on the basis of the facts on record and the law applicable to the case. If he decides a case for extraneous reasons, then he is not performing his duties in accordance with law. As often quoted, a judge, like Caesar’s wife, must be above suspicion.”

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Minority Status of Hindus in some States: SC directs Centre to have detailed deliberation with States and other stakeholders

The Court has directed the Central Government to undertake the necessary exercise and file a status report at least 3 days before the next date of hearing i.e. August 30, 2022.

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Pawnee recording self as “beneficial owner” is a necessary condition to exercise right to sell pledged good; it does not amount to “actual sale”

“Every transfer or sale is not ‘actual sale’ for the purpose of Section 177 of the Contract Act. To equate ‘sale’ with ‘actual sale’ would negate the legislative intent.”

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COVID-19 affecting education| No registration of Doctors without practical training. Foreign Institute MBBS students must first undergo training in India

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Non-execution of Arbitration Award even after 30 years-long delay: SC slams Allahabad High Court; U.P. Government to consider constituting four Additional Commercial Courts

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AIIMS to follow roster point-based reservation for preferential candidates

In a relief to students seeking admission in AIIMS Institutes, the bench of L. Nageswara Rao and AS Bopanna, JJ has directed that a roster point-based reservation for preferential candidates as followed by Jawaharlal Institute of Postgraduate Medical Education and Research (JIPMER) shall be implemented in all the AIIMS institutes.

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SC to decide if a non-member director barred from approaching NCLT alleging oppression/mismanagement under Section 430 of Companies Act

The question of law before the Court was whether a non-member/non-shareholder director is barred from raising a dispute regarding oppression/mismanagement and the illegal appointments of directors before the Civil Court u/s 430 of the Companies Act, 2013?

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Whether there should be any “Cooling off Period” for civil servants to contest elections post resignation/retirement? Best left to the Legislature concerned, says Supreme Court

“The allegations of bureaucrats deviating from strict norms of political neutrality with a view to obtaining party tickets to contest elections, is vague, devoid of particulars and unsupported by any materials which could justify intervention of this Court.”

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The Election cannot brook any delay! SC directs Maharashtra Election Commission to conduct local elections on the basis of pre-amendment delimitation

The Bench comprising of A.M. Khanwilkar, Abhay S. Oka and C.T. Ravikumar, JJ., directed Maharashtra State Election Commission to expeditiously conduct elections of local bodies (around 2486), which were pending for over 2 years (in some cases) due to disputed constitutional validity of State Amendments seeking to introduce delimitation in the State.

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SC finds Kerala Govt’s failure to compensate 3700 Endosulfan victims for 5 years appalling; says “without health, the faculties of living have little meaning”

“The failure to redress the infringement of their fundamental rights becomes more egregious with each passing day.”

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It isn’t the purpose of grace marks to allow reserved category candidate to switch over to general category

The Division Bench of M.R. Shah* and B.V. Nagarathna, JJ., reversed the impugned order of the Rajasthan High Court whereby the High Court had directed  Income Tax Department to grant grace marks to the applicant and treat him as a person belonging to general category.

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Person languishes in jail for 2 years despite being granted bail by Supreme Court; Supreme Court criticizes Trial Judge for misinterpreting bail order

“… where the custody of a person for 9 years was found to be sufficient to entitle him to be released on bail, is now turned into custody for 11 years. This is nothing but  reincarnation of Hussainara Khatoon[1] & Motil Ram[2].”

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Male Head Constable enters Mahila Barrack at 00:15 hours; is punishment of removal from service too harsh? SC tells what makes the punishment disproportionate

“…merely because one of the employees was inflicted with a lesser punishment cannot be a ground to hold the punishment imposed on another employee as disproportionate, if in case of another employee higher punishment is warranted and inflicted by the disciplinary authority after due application of mind.”

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Maternal uncle rapes his 14-year-old niece; will subsequent act of him marrying prosecutrix extinguish all criminal liabilities?

“This Court cannot shut its eyes to the ground reality and disturb the happy family life of the appellant and the prosecutrix”.

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Mere suppression of criminal antecedent regardless of whether there is a conviction or acquittal should not axiomatically lead to termination of service just by a stroke of pen

The Division Bench of Ajay Rastogi* and Sanjiv Khanna, JJ., reversed the impugned order of Delhi High Court whereby the High Court had upheld the dismissal order of appellant owing to suppression of information/false declaration in the verification form regarding criminal antecedent.

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Double Insurance–Overlapping policies: Grant of actual loss from one insurer will forfeit right to claim from other insurer; SC rejects Levi’s’ insurance claim

“What is in issue in this present case has been characterized as “double insurance”, i.e., where an entity seeks to cover risks for the same or similar incidents through two different – overlapping policies.”

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Kerala Revocation of Arbitration Clauses and Reopening of Awards Act, 1998 encroaches upon the judicial power of the State; held unconstitutional

The bench of L. Nageswara Rao* and BR Gavai, JJ has held that the Kerala Revocation of Arbitration Clauses and Reopening of Awards Act, 1998 encroaches upon the judicial power of the State and hence, is liable to be declared unconstitutional.

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Dilapidated structure on Bhilwara’s Tiranga Hill cannot be conferred a status of a Mosque in absence of any proof; Jindal Saw to go ahead with mining

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“An opinion accompanied by inadequate reasoning would not satisfy the requirements of Section 432 (2), CrPC”, SC directs presiding officer to reconsider remission application

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Great Indian Bustard and Lesser Florican Conservation: Supreme Court directs installation of bird divertors in  priority areas within three months

The petitioners were environmentalists who had approached the Court to seek directions for protecting the rare birds which are dwindling in number; particularly direction to prohibit use of overhead power lines which have become a hazard as the said species of birds are getting killed on collision with the power lines.

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Cases Reported in SCC


2022 SCC Vol. 3 Part 4

In Part 4 of 2022 SCC Volume 3, read some very pertinent Supreme Court decisions, involving aspects regarding reservation, accountability of social media platforms, service law and more.

2022 SCC Vol. 3 Part 5

Read four articles and nine significant decisions of Supreme Court in Part 5 of 2022 SCC Volume 3.

2022 SCC Vol. 4 Part 1

In 2022 SCC Volume 4 Part 1, read a very interesting case, wherein the grievance of the builder was that out of total of 1134 apartments constructed and sold by them, the owners of merely 51 apartments have joined together and invoked the jurisdiction of the National Consumer Commission and that such a miniscule percentage of consumers cannot seek to file the complaint in a representative capacity. To know what happened in this case, read the Supreme Court decision in Brigade Enterprises Ltd. v. Anil Kumar Virmani(2022) 4 SCC 138

Case BriefsHigh Courts

Punjab and Haryana High Court: Expressing that, in a democratic set-up, there always would be voices of dissent and opinions against rules and protest against actions, Vinod S. Bhardwaj, J., observed that, some protests may have aggression but still an act of dissent would not be ordinarily labeled as sedition.

Instant petition was filed for grant of regular bail to the petitioners in a case under Sections 307, 438, 427, 148 and 149 of the Penal Code, 1860; Sections 121, 121-A, 122, 124-A, 115 and 120-B of the IPC, 1860; Sections 11, 12, 13, 17 and 18 of the Unlawful Activities (Prevention) Act, 1967 (hereinafter referred to as ‘UAPA Act’); Sections 25/54/59 of the Arms Act, 1959 and Section 66-F of the Information and Technology Act, 2000.

Analysis, Law and Decision


Balancing of right of an accused to seek speedy trial viz-a-viz the entitlement of the State to keep an accused in custody for a prolonged period

High Court expressed that, it is a well-settled position in law that power of bail is not a substitute to inflict sentence on an under trial and that unless sufficient circumstances exist justifying confirmed incarceration, as accused would rather be entitled to a concession of bail.

“…Article 21 of the Constitution of India guarantees right to speedy trial.”

Further, it was noted that the trial in question was stayed even prior to the Supreme Court order in the matter relating to Section 124-A IPC. In Court’s opinion, it does not appear probable in the near future that, the trial shall make any progress.

“Section 124-A IPC was widely worded to cover bringing or attempts to bring into hatred or contempt, or attempt to excite dis-satisfaction towards government established by law. The object being to subjugate Indian people and to function on absolutism and to crush any people’s movement ignoring the fundamental rights embodied in the Constitution of India recognizing freedom of speech and expression as well as the freedom to assemble.”

Bench added to its observation that, to attract an offence such as Section 124-A IPC, there must be deliberate resistance and conscious defiance of authority with a conceived plan aimed to unsettle elected government.

With regard to the imprisonment of the accused, Court stated that once the trial in a case is not proceedings, the accused cannot be penalized by being forced to undergo confinement.

High Court deemed it appropriate to enlarge the petitioners on bail. Hence, the petition was allowed.[Dharminder Singh v. State of Punjab, 2022 SCC OnLine P&H 1115, decided on 17-5-2022]


Advocates before the Court:

Mr. Arnav Sood, Advocate for the petitioners.

Ms. Amarjit Kaur Khurana, DAG Punjab.

Case BriefsSupreme Court

Supreme Court: In the petitions challenging the Constitutionality of Section 124A of the Penal Code 1860 dealing with the offence of Sedition, the 3-judge bench of NV Ramana, CJ and Surya Kant and Hima Kohli, JJ has urged the State and Central Governments to restrain from registering any FIR, continuing any investigation or taking any coercive measures by invoking Section 124A of IPC while the sedition law is under consideration.

It was contended before the Court that this provision of law dates back to 1898, and pre-dates the Constitution itself, and is being misused. The Attorney General had also, on an earlier date of hearing, given some instances of glaring misuse of this provision.

Interestingly, the Union of India agreed with the prima facie opinion expressed by the Court that the rigors of Section 124A of IPC is not in tune with the current social milieu, and was intended for a time when this country was under the colonial regime. In light of the same, the Union of India may reconsider the aforesaid provision of law.

Being cognizant of security interests and integrity of the State on one hand, and the civil liberties of citizens on the other, the Court observed that there is a requirement to balance both sets of considerations, which is a difficult exercise.

Therefore, the Court observed

“…we expect that, till the re-examination of the provision is complete, it will be appropriate not to continue the usage of the aforesaid provision of law by the Governments.”

It, hence, was of the opinion that,

  • The State and Central Governments are urged to restrain from registering any FIR, continuing any investigation or taking any coercive measures by invoking Section 124A of IPC while the sedition law is under consideration.
  • All pending trials, appeals and proceedings with respect to the charge framed under Section 124A of IPC be kept in abeyance. Adjudication with respect to other Sections, if any, could proceed if the Courts are of the opinion that no prejudice would be caused to the accused.”
  • If any fresh case is registered under Section 124A of IPC, the affected parties are at liberty to approach the concerned Courts for appropriate relief. The Courts are requested to examine the reliefs sought, taking into account the present order passed as well as the clear stand taken by the Union of India.
  • Further, the Union of India shall be at liberty to issue the Directive to the State Governments/Union Territories to prevent any misuse of Section 124A of IPC.
  • The above directions may continue till further orders are passed.

[S.G. Vombatkere v. Union of India, 2022 SCC OnLine SC 609, order dated 11.05.2022]

Case BriefsHigh Courts

Allahabad High Court: Expressing that Students travelling freely to different parts of the country in the quest for knowledge is the true celebration of India diversity and a vivid manifestation of India’s unity, Ajay Bhanot, J., stated that it is the duty of the people of the hosting State to create enabling conditions for visiting scholars to learn and to live the constitutional values of our nation.

“…obligation of the young scholars to imbibe and adhere to such values.”

An FIR was filed under Sections 153-A, 505(1)(b), 124A of Penal Code, 1860.

Applicants had raised pro-Pakistan slogans and also sloganeered against India in the aftermath of an Indo-Pak match. They also made like posts on social media and instigated civil disorder in the country.

Applicants’ counsel contended that the present case was the result of student rivalries over trivial issues. The applicants did not raise anti-India and pro-Pakistan slogans. Further, it was submitted that the applicants were responsible Indian citizens who hailed from the State of Jammu and Kashmir which is the very embodiment of Indian values.

It was also stated that the applicants truly represented Kashmiriyat defined by syncretist ideals and composite culture. The said ideals from the essence of Indian values are diversely expressed in various parts of the country.

With regard to the trial moving at a snail’s pace, it was contended that it is not likely to conclude any time soon. Hence, the inordinate delay in the trial would lead to indefinite detention of the applicants.

Analysis, Law and Decision


High Court while addressing the matter, expressed that,

“The unity of India is not made of bamboo reeds which will bend to the passing winds of empty slogans.”

Further, the Court added that, the foundations of our nation are more enduring and eternal ideals bind the indestructible unity of India. Every citizen of the country is the custodian, and the State is the sentinel of the unity of India and the constitutional values of the nation.

In the present matter, since the submissions of the counsel for the applicants could not be disputed on behalf of the State, the applicants were entitled to be enlarged on bail.

Hence, the bail application was allowed subject to the following conditions:

(i) The applicants will not tamper with the evidence during the trial.

(ii) The applicants will not influence any witness.

(iii) The applicants will appear before the trial court on the date fixed, unless personal presence is exempted.

(iv) The applicants shall not directly or indirectly make inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade them from disclosing such facts to the Court to any police officer or tamper with the evidence.

[Inayat Altaf Shekh v. State of U.P., Criminal Misc. Bail Appl. No. 53115 of 2021, decide don 30-3-2022]


Advocates before the Court:

Counsel for Applicant:- Santosh Kumar Singh, Ramesh Chandra Yadav, Sudhakar Yadav

Counsel for Opposite Party:- G.A.

Legal RoundUpSupreme Court Roundups

Year 2021! The year that started with the hope of the COVID-19 Pandemic nearing an end with countries starting vaccination, ended up becoming deadlier than the year gone by. A year of losses for many, 2021 was also the year when the Supreme Court judges lost one of their own. Justice MM Shantanagoudar, a sitting judge of the Supreme Court, breathed his last on April 24, 2021.

Read: The Judicial Legacy of Justice MM Shantanagoudar

As the Nation was crippled with hardship and adversity, the Supreme Court refused to bog down and went on to deliver 865 judgments, which is a lot more than the number of judgments delivered in the 2020.

The year also witnessed the appointment of 9 judges, including 3 women judges and if all goes well, Justice BV Nagarathna, might take oath as the first woman Chief Justice of India in 2027!  Read more…

5 judges, including the former CJI Justice SA Bobde, retired. Justice NV Ramana took oath as the 48th Chief Justice of India. Read more…

Also read:

·        Chief Justice SA Bobde retires: A look at his legacy and justice in the time of COVID-19

·        A Winner All Along – Justice Indu Malhotra

·        Messiah of the sufferers: Bidding adieu to Justice Ashok Bhushan

·        A Multifaceted Expert — Justice Rohinton Fali Nariman

·        A Champion who applied technology to optimize human potential and capabilities – Justice Navin Sinha

Let’s go through the most important of the 865 judgments delivered by the Supreme Court in the year 2021. 

CONSTITUTION BENCH VERDICTS

Only 3 Constitution Bench judgments were delivered in the year 2021. Read all about them here.


THE MOST TALKED ABOUT CASES

Central Vista Project

The year began with the Supreme Court giving a go-ahead to the Central Vista Project in a 2:1 verdict. While the majority found itself compelled to wonder if it can dictate the government to desist from spending money on one project and instead use it for something else, Justice Khanna, in his dissenting opinion, observed that citizens have the right to know and participate in deliberation and decision making. [Rajiv Suri v. Delhi Development Authority,  2021 SCC OnLine SC 7]

Read: Supreme Court gives a go-ahead to Central Vista Project in a 2:1 verdict

Also read: Justice Khanna dissents in 2:1 verdict clearing the Central Vista Project

Farm Bill and Farmer Protest

While the repeal of the Farm laws came at the fag end of the year, the Supreme Court stayed the implementation of these Laws right in the beginning of the year after noticing that despite the peaceful protest, a few deaths had already taken place as Senior Citizens, youth and children were exposing themselves to not just the cold weather but also to COVID-19. [Rakesh Vaishanv v. Union of India,  (2021) 1 SCC 590]

Read: Supreme Court stays implementation of Farm Laws

Also read: Farmer Protests| Shashi Tharoor and 6 journalists not to be arrested for now over tweets on protester’s death during Republic Day Tractor Rally

Here’s a list of some more unmissable high-profile cases:


THE WAY FORWARD

The structures of our society have been created by males and for males. As a result, certain structures that may seem to be the “norm” and may appear to be harmless, are a reflection of the insidious patriarchal system.

Nitisha v. Union of India

2021 SCC OnLine SC 261

In 2021, the Supreme Court showed the way forward by giving many progressive orders/judgments. One of the top stories from the year 2021 was where the Court said that the administrative requirement imposed by the Indian Army authorities while considering the case of the Women Short Service Commissions Officers (WSSCO) for the grant of Permanent Commission (PC), of benchmarking these officers with the officers lowest in merit in the corresponding male batch was arbitrary and irrational.

In another important ruling, before taking the oath as the Chief Justice of India, Justice NV Ramana noticed that the conception that housemakers do not “work” or that they do not add economic value to the household is a problematic idea that has persisted for many years and must be overcome. He added that the issue of fixing notional income for a homemaker, therefore, served extremely important functions.

Here is the list of all the judgments that take us as a nation a step forward:


SEDITION AND FREE SPEECH

By way of a series of judgments and orders on free speech, the Supreme made clear that, a citizen has a right to criticize or comment upon the measures undertaken by the Government and its functionaries.

In a big move, the Supreme Court also agreed to decide the constitutionality of Section 124A IPC after it was submitted before the Court that the decision of the Court in Kedar Nath Singh v. State of Bihar, 1962 Supp. (2) SCR 769 required reconsideration. [Kishorechandra Wangkhemcha v. Union of India, (2021) 6 SCC 177]

Read everything here:


IBC – THE IMPERFECT LAW?

While stating that “there is nothing like a perfect law and as with all human institutions, there are bound to be imperfections”, the Supreme Court, in a 465-pages long judgment, upheld the validity of several provisions of the Insolvency and Bankruptcy Code (Amendment) Act, 2020, albeit with directions given in exercise of powers under Article 142 of the Constitution of India. [Manish Kumar v. Union of India,  (2021) 5 SCC 1]

Read: IBC (Amendment) Act, 2020 upheld, albeit with directions

This judgment was followed by a series of judgments and orders on IBC. Check out the list below to read more:


RIGHTS OF PERSONS WITH DISABILITIES

“In their blooming and blossoming, we all bloom and blossom.”

Vikash Kumar v. Union Public Service Commission,

(2021) 5 SCC 370

This year witnessed many Supreme Court Judgments and orders on the Rights of Persons with Disabilities.

Check out this list to know more:


DEMOCRACY AND TRANSPERANCY

No-one is above law; this was the Supreme Court message as it stressed on importance of transparency by Political Parties and Government Institutions.

Read here:


THE CONSTITUTIONAL RIGHT TO PROPERTY

In a case where State took possession of surplus land in absence of surplus land, this Supreme Court’s verdict served as a reminder that right to property is still a constitutional right under Article 300A of the Constitution of India though not a fundamental right. The deprivation of the right can only be in accordance with the procedure established by law. [Bajranga v. State of Madhya Pradesh,  2021 SCC OnLine SC 27]

Read: Right to property is still a constitutional right under Article 300A of the Constitution


WHEN A CONSTITUTIONAL AMENDMENT WAS STRUCK DOWN

In a rare move, the Supreme Court held that the Constitution (97th Amendment) Act, 2011 which inter alia inserted Part IX-B was ultra vires the Constitution insofar it is concerned with the subject of Cooperative Societies for want of the requisite ratification under Article 368(2) proviso. [Union of India v. Rajendra N. Shah2021 SCC OnLine SC 474]

Read: Part IX-B of Constitution relating to cooperative societies unconstitutional for want of ratification by half of the States; Provisions relating to multi-State cooperative societies severable and valid: SC


THE “EVEN MORE DESERVING PARTIES”

Section 89 of CPC and Section 69-A of Tamil Nadu Court Fees and Suit Valuation Act, 1955 contemplate the refund of court fees in all methods of out-of-court dispute settlement between parties that the Court subsequently finds to have been legally arrived at and not just to those cases where the Court itself refers the parties to any of the alternative dispute settlement mechanisms listed in Section 89 of the CPC.

The Court observed that the parties agreeing to out-of-court settlement are “even more deserving”. [High Court of Madras v. MC Subramaniam(2021) 3 SCC 560]

Read: Parties agreeing to out-of-court settlement without judicial intervention under Section 89 CPC can’t be denied benefit of refund of court fees


BANKS AND BANKING

While the Constitution bench looked down upon the “mechanical” conversion of complaints under Section 138 NI Act from summary to summons trial and directed that the magistrates “must” record reasons, many other important decisions were given in 2021.

Read here: 


CONSUMER PROTECTION

The Supreme Court took cognizance of Government’s lackadaisical attitude towards consumer empowerment and observed that the ground reality is quite different as there is little endeavour to translate this Legislative intent into an administrative infrastructure with requisite facilities, members and staff to facilitate the decision on the consumer complaint.

Here are the important rulings on Consumer Protection that you cannot miss:


FROM “DEATH” TO “LIFE”

In 3 cases, the Supreme Court commuted the death sentences of the convicts to Life Imprisonment and in one case, 3 death row convicts were acquitted of all charges.

Read here:


MOTOR ACCIDENTS CLAIMS

Read how a one-stop online platform for all parties involved and Motor Vehicle Appellant Tribunals will help in achieving a hassle free disposal of Motor Vehicle Accident claims:


ARBITRATION

No year goes by without the Supreme Court delivering some important ruling on Arbitration and the year 2021 was no different.

Read the updates here:


A GUIDE FOR THE BENCH!

“The Magistrates are the first lines of defence for both the integrity of the criminal justice system, and the harassed and distraught litigant.”

Krishna Lal Chawla v. State of U.P.,

2021 SCC OnLine SC 191

In 2021, the Court also delivered a number of judgments on the issues of pendency of cases, judicial vacancies and overall standard to be followed by the members of bench while dealing with case.

Read all about these judgments here:


COVID-19

As the second wave of COVID-19 brought the nation to its knees, the Supreme Court did everything in it’s power to ensure that the loss is minimized.

Read all the important judgments here:

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

 

READ COMPLETE ARTICLE HERE

———

* 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. Cite as (2020) 4 SCC J-14

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.

Gauhati High Court
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

Gauhati High Court
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

Jammu and Kashmir and Ladakh High Court
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>.