Importantly, the Centre appeared to be on the same page with the SC when attorney general K K Venugopal said the court can lay down guidelines restricting the use of Section 124A in addition to the broad parameters provided by the court in a five-decade-old judgment in the Kedar Nath case as to what constituted “sedition”. Solicitor general Tushar Mehta said, “The court will find that most of its apprehensions are addressed when the Centre files its response to the PIL.”
A bench of Chief Justice N V Ramana and Justices A S Bopanna and Hrishikesh Roy said it was of the opinion that the sedition law should be used only for protection of the nation, its security and institutions of importance in a democracy. However, the sedition law, enacted by the British to subjugate the people of India, had been grossly misused since Independence for the last 75 years, much in a similar way to quell dissent.
The CJI’s observations are pertinent. A law, once used by the colonial state against the likes of Tilak and Gandhi, really has no place in today’s India. It must be thrown out. Merely issuing fresh guidelines or making minor changes in the law won’t be enough because it has become a vicious tool in the hands of those in power to muzzle and punish any form of dissent
The bench said, “A saw in the hands of a carpenter is a tool to help him make beautiful furniture. If the carpenter turns his saw on the trees, then the forest gets decimated. This section (124A) gives enormous powers for misuse. It is like giving a saw to the carpenter to cut a piece of wood for making furniture. If he uses it to cut the entire forest, imagine the devastating impact.” Justice Ramana recalled the SC’s March 2015 judgment in the Shreya Singhal case quashing the much-abused Section 66A of the Information Technology Act to arrest people who voiced their criticism against governments on social media platforms.
When the bench issued notice to the Centre on a PIL filed by Maj Gen S G Vombatkere (Retd), the solicitor general echoed what the AG had said and reinforced the indication that the government too was thinking on the same lines as the SC to substantially limit the invocation of Section 124A, except in serious cases where the integrity of the nation, its security or its democratic institutions are threatened.
Turning to the AG, the CJI said, “Remember how many thousands of people were charged under this law (sedition)? And there is no accountability fastened on police for falsely implicating persons under the sedition provision of IPC. In rural areas, it is even worse. If a person defies a policeman, he would have him booked under Section 124A. There are so many issues that arise and we have to look into all of these issues.”
Referring to politicians in power using the sedition provision against rivals, the three-judge bench said, “The situation on the ground is worrying. When some particular party, which formed the government in the states, does not want to hear dissent, they resort to Section 124A to implicate the opposition groups and silence them. The law should be used only to protect the nation, its security and institutions of importance in a democracy,” the CJI-led bench said.
Taking a cue from the CJI’s last observation, Venugopal conceded misuse of Section 124A is a serious issue. He said a five-judge bench of the SC in 1962 in Kedar Nath judgment had laid down broad parameters of instances which would amount to sedition. Indicating that the government was open to the court further restricting invocation of Section 124A, Venugopal said, “The SC can lay down further guidelines to restrict its use.”
The AG also pointed out that two petitions are already pending before the SC questioning the constitutional validity of Section 124A. The CJI said he would take a decision administratively whether all the petitions are to be joined together for a combined hearing on the important issue.
Given the fact that the constitutional validity of Section 124A was upheld by a five-judge SC bench in the Kedar Nath case, the CJI may have to constitute a Constitution bench of at least five judges to hear the petitions, including the PIL filed by Vombatkere.
Vombatkere’s counsel P B Suresh said a statute criminalising expression based on unconstitutionally vague definitions of “disaffection towards government’’ etc is an unreasonable restriction on the fundamental right to free expression guaranteed under Article 19(1)(a) and causes constitutionally impermissible “chilling effect” on speech.
The petitioner said the Constitution bench of the SC’s 1962 judgment upholding the validity of the sedition provision was rendered in an era when the apex court was conservative in interpreting the ambit of fundamental rights. He said fundamental rights, especially the right to free speech and right to life, are given a wide meaning in many subsequent landmark judgments.
Vombatkere said the right to free speech and expression got wings with the advent of social media allowing citizens to freely express their opinion for and against the government. The SC never had an opportunity, in the era of transparency and openness, to examine the constitutional validity of Section 124A, which now is often used to silence dissent, he said.
“The SC in Kedar Nath upheld the validity of the Impugned Provision and ruled that the very existence of the State will be in jeopardy if the Government established by law is subverted. The Impugned Provision however was read down to mean that only those expressions that either intend to or have the tendency of causing violence are punishable. Despite the reading down, the continued employment of the charge of sedition to silence dissent continued undeterred and has been taken judicial notice of. This prompted the SC to reiterate the Kedar Nath law in 2016 in Common Cause case, directing all authorities to scrupulously follow the Kedar Nath dictum,” the petitioner said.
While upholding the constitutional validity of Section 124A in 1962, the SC caveated it by saying, “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. When so construed, the section, in our opinion, strikes the correct balance between individual fundamental rights and the interest of public order,” the SC had said.