Why the Supreme Court Must Declare Sedition Law Unconstitutional

IN welcoming the Supreme Court’s judgment in the case of Vinod Dua v. Union of India & Ors. (WP(Crl) No. 154 of 2020), we must also recognise that it is a mixed bag. While it reiterates the principles elucidated by a Constitutional bench of the apex court in its landmark judgment in Kedar Nath Singh v. State of Bihar (AIR 1962 SC 955) in interpreting Section 124A of the Indian Penal Code, 1860 and quashes the FIR (first information report) lodged against Dua, the judgment not only refuses to grant the second prayer concerning guidelines for lodging sedition FIRs against journalists, it goes on and shuts the door for any guidelines to be issued for regulating the filing and prosecution of cases of sedition against journalists or others.

It is no good trying to dilute the offence of sedition or further read it down. The only way to deal with the pernicious section 124A is to strike it down – lock, stock and barrel. While there are routine Constitutional grounds under which the section should be struck down too, I am not going into those due to space constraints.

Background

On February 9, 2021, a three-judge division bench of the Supreme Court, headed by then Chief Justice S.A. Bobde, dismissed a public interest litigation (PIL) filed by certain lawyers challenging the constitutional validity of section 124A on the ground that no concrete case was brought before it.

On April 30, 2021, another three-judge division bench of the Supreme Court issued notice on a petition challenging the constitutional validity of section 124A. This plea had been filed by two journalists working in the states of Manipur and Chhattisgarh who are themselves victims of sedition cases.

According to them, they have been raising legitimate questions against their respective state governments and the union government, and have been charged with sedition under section 124A in various FIRs for comments and cartoons shared by them on the social networking website Facebook. In fact, the journalist from Manipur spent a total of 210 days in custody having been implicated in FIRs under section 124A since 2018. He also lost his job when he was arrested in November 2018.

On May 31, 2021, the Supreme Court, through another three-judge division bench, stayed coercive actions against TV news channels TV5 and ABN in a sedition case filed by the Andhra Pradesh Police against these channels. The Court’s order observed:

“[W]e are of the view that the ambit and parameters of the provisions of Sections 124A, 153A and 505 of the Indian Penal Code 1860 would require interpretation, particularly in the context of the right of the electronic and print media to communicate news, information and the rights, even those that may be critical of the prevailing regime in any part of the nation”.

The Court was moved under Article 32 of the Indian Constitution as the channels were charged with sedition for broadcasting programmes which were critical of the government and the Chief Minister.

On June 3, 2021 the judgment in Vinod Dua’s case came to be delivered.

Also read: Decoding the history of Sedition law in India

The Abuse Of Sedition Law

As far as the Supreme Court is concerned, sedition is seemingly the flavour of the year. This is not surprising, considering the rampant use of this law in the recent past, not just against journalists but also against other peaceful dissenters. Let us look at just the last nine months.

On September 3, 2020, the Uttarakhand High Court granted bail to a journalist who was jailed for sedition for having put up a video on his social media page implying that a doctor’s wife was the sister of the Uttarakhand CM’s wife. The video also made certain allegations of corruption against the CM. Finally, through its judgment on October 27, not only the High Court quash the FIR against the journalist, but also directed the Central Bureau of Investigation (CBI) to investigate the allegations of corruption against the CM.

On November 6, 2020, the Gujarat High Court quashed a sedition case against journalist Dhaval Patel for having written that there Gujarat Chief Minister is likely to be replaced because of bad handling of the pandemic. Of course, the case was quashed only after Patel apologised for the write-up.

In late January 2021, cases of sedition were filed in Madhya Pradesh and Uttar Pradesh against Member of Parliament Shashi Tharoor and journalists Rajdeep Sardesai, Mrinal Pandey, Zafar Agha, Vinod Jose, Anant Nath and Paresh Nath concerning a tweet that blamed police for a farmer’s death during the Republic Day protests in Delhi. The Supreme Court stayed the arrests, and the matter is pending.

On February 11, 2021, the Jammu and Kashmir High Court quashed an FIR based on sedition. The petitioner Zakir Hussain was charged with demeaning the Indian Army and the government. The Court observed, in its judgment:

“Undoubtedly, in the conversation, the petitioner has demeaned the Indian Forces and eulogized the armed forces of China in the context of recent Galwan valley conflict between the two nations. It is equally true that the conversation contained in the audio clip, which was circulated on the social media by the co-accused Nissar Ahmed Khan, does bring into contempt the Government established by law in India, but 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 Section 153A or 153B IPC.”

On February 15, 2021, a Delhi Sessions Court granted bail to a 21-year-old labourer charged with sedition for having put up an allegedly fake video on his Facebook page concerning a purported rebellion within the Delhi police. In its order, the Additional Sessions Judge (ASJ) observed:

“The law of sedition is a powerful tool in the hands of the state to maintain peace and order in the society. However, it cannot be invoked to quieten the disquiet under the pretence of muzzling the miscreants. Evidently, law proscribes any act which has a tendency to create disorder or disturbance of public peace by resort to violence. In the absence of any exhortation, call, incitement or instigation to create disorder or disturbance of public peace by resort to violence or any allusion or oblique remark or even any hint towards this objective, attributable to the applicant accused, I suspect that Section 124 A IPC can be validly invoked against the applicant. In my considered opinion, on a plain reading of the tagline attributed to the applicant/accused, invocation of Section 124 A IPC is a seriously debatable issue.”

On February 23, 2021, the same ASJ in Delhi granted bail to Disha Ravi in the infamous ‘toolkit’ case where she was charged with sedition.

Also read: Sedition law has no place in a democratic society

On February 26, 2021, the Delhi government granted sanction to prosecute former and current Jawaharlal Nehru University (JNU) students Kanhaiya Kumar, Umar Khalid, Anirban Bhattacharya, Aquib Hussain, Mujeeb Hussain, Muneeb Hussain, Umar Gul, Rayeea Rasool, Bashir Bhat and other student activists for sedition in a 2016 case.

In December of 2020, the Delhi government had granted sanction to prosecute 18 people accused in the Delhi riots case from earlier that year – including Khalid and fellow former JNU students Sharjeel Imam, Natasha Narwal, Devangana Kalita, and local politicians Tahir Hussain and Ishrat Jahan – under various charges, including that of sedition.

These are only a few examples. In the past few years, we have seen sedition being applied to those who opposed a nuclear power plant, tribals protesting against land grab, those who protested against the Citizenship Amendment Act, 2020 (CAA) and a proposed National Register for Citizens (NRC), those who merely criticise the Prime Minister or a Chief Minister, and those who support the farmers struggle around Delhi. 

Sometimes sedition is the main offence, and at other times, it is combined with the Unlawful Activities (Prevention) Act, 1967 (UAPA) and other draconian laws. Consistently, we have seen that a mere difference of opinion from the establishment lands people in jail on grounds of sedition. The targets usually include activists, Dalits, Muslims, tribals, and journalists.

‘Article 14’, a civil society organisation, launched its sedition database on May 23, 2021. It is a count and analysis of all sedition cases between January 1, 2010 and December 31, 2020. The analysis revealed:

• “65% of nearly 11,000 individuals in 816 sedition cases since 2010 were implicated after 2014 when Modi took office. Among those charged with sedition: opposition politicians, students, journalists, authors and academics.
• 96% of sedition cases filed against 405 Indians for criticising politicians and governments over the last decade were registered after 2014, with 149 accused of making “critical” and/or “derogatory” remarks against Modi, 144 against Uttar Pradesh (UP) chief minister Yogi Adityanath.
• A 28% increase in the number of sedition cases filed each year between 2014 and 2020, Modi’s time in office, compared to the yearly average between 2010 and 2014, the second term of the United Progressive Alliance (UPA) administration.
• Much of this increase is due to a surge in sedition cases after protest movements, such as those against the Citizenship Amendment Act (CAA), 2019 and the rape of a Dalit teen at Hathras in UP.
• During the anti-CAA protests, 22 of 25 sedition cases involving 3,700 people were filed in BJP-ruled states. After the Pulwama attack, 26 of 27 sedition cases involving 42 persons were filed in BJP-ruled states.
• Of the five states with the highest number of sedition cases, a majority were registered during the BJP’s time in power in four of them—Bihar, UP, Karnataka and Jharkhand.
• The database found the range of expressions found seditious extended from mere holding of posters to social media posts, to raising slogans and private communication.
• In nearly 30% of cases, a variety of other laws, such as the Unlawful Activities Prevention Act, 1967, Prevention of Damage to Public Property Act, 1984, and the Information Technology Act, 2000, Prevention of Insults to National Honour Act, 1971, Epidemic Diseases Act, 1897, Disaster Management Act, 2005 were added to the FIRs.
• The database found that five states—Bihar, Karnataka, Jharkhand, Uttar Pradesh and Tamil Nadu—accounted for 534 cases, nearly 65% of all sedition cases in the last decade.”

While all dispensations use sedition to throttle dissent, the increase is visible and sharp in the last six years.

Also read: The necessity of Dissent in a Liberal Democracy

The Response Of Courts

What is interesting is that while the courts in many cases have given a narrow interpretation to the provision of sedition, granted both anticipatory and regular bails, and quashed FIRs, this has not stopped the police from filing FIRs on totally frivolous complaints and at times arresting those accused, including young students, journalists, tribal activists and similar other dissenters.

The law of sedition has been utterly misused across the board, causing a substantial chilling effect. Those who are prominent and have the resources are able even to approach the Supreme Court directly but many others have to spend time in jail or in hiding, affecting their families, jobs, careers and studies.

As it is, courts are not easily accessible for many poor persons. Additionally, charges of sedition are usually clubbed with UAPA offences or with other special laws, complicating the matter.

The judiciary, including the Supreme Court, keeps harping on the importance of the apex court’s judgment in Kedar Nath Singh which stipulates that violence, or the tendency or intention for violence are a pre-condition to apply sedition. Courts also repeatedly exhort the police to follow the law.

In spite of that, it is amazing that not one police officer has been prosecuted or even departmentally proceeded against for gross misapplication of sedition nor has any victim ever been paid any compensation. 

The Supreme Court seems to be under the impression that police falsely implicate individuals because of lack of adequate training or sensitization. In 1995, in its judgment in Balwant Singh & Anr. v. State of Punjab, 1995 3 SCC 214, the Supreme Court observed:

 “It appears to us that the raising of some slogans only a couple of times by the two lonesome appellants, which neither evoked any response nor any reaction from anyone in the public can neither attract the provisions of Section 124-A or of Section 153-A IPC. Some more overt act was required to bring home the charge to the two appellants, who are government servants. The police officials exhibited lack of maturity and more of sensitivity in arresting the appellants for raising the slogans — which arrest — and not the casual raising of one or two slogans — could have created a law and order situation, keeping in view the tense situation prevailing on the date of the assassination of Smt Indira Gandhi.”

Such implorations can found in various judgments over the last 25 years.

But let us understand one thing. In a large majority of the cases, especially those I have referred to earlier, the police action has been vehemently defended by the Solicitor General of India, the Assistant Solicitor General or the Advocate General of the state. The Assistant Solicitor General of India has even gone to the Sessions Court to defend police action on sedition and oppose bail to students.

If these public legal officers, as representatives of the State, do not find such brazen cases a misuse of the law, it is not understood how the police will be imparted some legal training or sensitivity which will result in misuse of law being avoided.

What the Supreme Court has been overlooking despite repeated cases before it is that by and large the use of section 124A (like many other similar laws) is a political tool garbed as penal action to muzzle dissent. Lectures to the police are not going to solve the problem. It is partly because of this that section 124A has to be struck down.

Also read: Silencing Dissent: Misreading of Sedition Law Leads to Misuse to Shut Up Critics 

Kedar Nath Singh

It is important to remember what Mahatma Gandhi said in 1922 in the court of a District and Sessions Judge in Ahmedabad when he was charged with sedition. “Section 124A, under which I am happily charged, is perhaps the prince among the political sections of the Indian Penal Code designed to suppress the liberty of the citizen.” The provision was widely used as a political tool during the pre-independence era. Besides Gandhi, Bal Gangadhar Tilak, Annie Besant, Jawaharlal Nehru, Maulana Azad and many other independence activists were its victims.

It was expected that once independence was attained, sedition would be the first law to be done away with. Going by the Constituent Assembly debates, this was the intention of the makers of the Constitution. But that did not happen.

The Kedar Nath Singh judgment of the five-judge constitution bench of the Supreme Court is a disappointment. One would have expected that sedition would be struck down as being violative of the fundamental rights chapter of the Constitution. Instead, the Supreme Court found a middle way. It upheld the Federal Court interpretation given in its 1942 judgment in Niharendu Dutt Majumdar v. King Emperor, (1942) FCR 38 to hold that criticism of the Government could be seditious only if it leads to violence or has a tendency to lead to violence.

In its Vinod Dua judgment, the Supreme Court has culled out the ratio of Kedar Nath Singh in the following words:

a) ““the expression “the Government established by law” has to be distinguished from the persons for the time being engaged in carrying on the administration. “Government established by law” is the visible symbol of the State. The very existence of the State will be in jeopardy if the Government established by law is subverted.”

b) “any acts within the meaning of Section 124-A which have the effect of subverting the Government by bringing that Government into contempt or hatred, or creating disaffection against it, would be within the penal statute because the feeling of disloyalty to the Government established by law or enmity to it imports the idea of tendency to public disorder by the use of actual violence or incitement to violence.” …..

c) “comments, however strongly worded, expressing disapprobation of actions of the Government, without exciting those feelings which generate the inclination to cause public disorder by acts of violence, would not be penal.” …..

d) “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.” …..

e) “The provisions of the Section 124A read as a whole, along with the explanations, make it reasonably clear that the sections aim at rendering penal only such activities as would be intended, or have a tendency, to create disorder or disturbance of public peace by resort to violence.”

f) “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.” …..

g) “we propose to limit its operation only to such activities as come within the ambit of the observations of the Federal Court, that is to say, activities involving incitement to violence or intention or tendency to create public disorder or cause disturbance of public peace.” …

According to this 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.”

Kedar Nath Singh does not prevent filing false cases of sedition. It does not prevent arrests. It permits the use of the law if the seditious speech or writing leads to violence or even tends or intended to lead to violence. The expression ‘tends to’ is so overbroad that it can be stretched to be applied to any situation.

Reading Down/Guidelines

Kedar Nath Singh should have at least held that the violence in cases of sedition should be directed against the State. The offence of sedition is part of Chapter VI of the IPC which deals with offences against the State. But the consequence of Kedar Nath Singh is that if I draw a cartoon that someone does not like and that person throws a stone at my place or even threatens to throw a stone at me, I will be arrested for sedition. This is because despite the fact that sedition is under the chapter titled “Of Offences Against the State”, Kedar Nath Singh does not say that the violence or its tendency, in order to be seditious, has to be directed against the State.

Furthermore, the proximity of the violence to the so-called seditious speech is completely at the discretion of the police. This is what we witness in the recent Delhi riots’ investigation by the Delhi police, where speeches by some student leaders that had no connection with the violence have been tortuously linked with the riots, and thus branded as seditious. Similarly, the violence which occurred on Republic Day in Delhi amidst the farmers’ protest has been linked to an online ‘tool kit’ which does not even have a remote connection with that violence. Thus, the tool kit was branded as seditious, and a young female climate activist was arrested.

Even if actual violence or tendency to commit violence is seen as a condition precedent for a charge of sedition, we have witnessed cases of sedition being filed where the violence is not even remotely linked to the speech. 

In short, the present sedition law is rampantly misused, it has an extremely chilling effect and the Kedar Nath Singh judgment helps only those people who have the means to approach the higher judiciary, and that too only on certain occasions. It does not stop arrests, it takes within its net all kinds of activists, journalists, academics and various other people who may have a viewpoint different from that of the establishment. Kedar Nath Singh has been thoroughly ineffective in preventing the misuse of sedition law.

Also read: Lawmakers Must Examine: Does Free India Need a Sedition Law?

The one way to soften its impact would have been for the courts to issue guidelines as the Bombay High Court did in Sanskar Marathe v. The State of Maharashtra & Ors. (2015 SCC OnLine Bom 587). In this judgment, the Bombay High Court released cartoonist Aseem Trivedi, who had been arrested for anti-establishment cartoons, and persuaded the Maharashtra state government to prescribe the following guidelines:

“We do not find it necessary to dwell on the subject any further, as the learned Advocate General submitted that the State Government in Home Department will issue the following guidelines in the form of a Circular to all the Police personnel:

(1) In view of the felt need to issue certain guidelines to be followed by Police while invoking Section 124A IPC, the following pre-conditions must be kept in mind whilst applying the same:

(i) The words, signs or representations must bring the Government (Central or State) into hatred or contempt or must cause or attempt to cause disaffection, enmity or disloyalty to the Government and the words/signs/representation must also be an incitement to violence or must be intended or tend to create public disorder or a reasonable apprehension of public disorder;

(ii) Words, signs or representations against politicians or public servants by themselves do not fall in this category unless the words/signs/representations show them as representative of the Government;

(iii) Comments expressing disapproval or criticism of the Government with a view to obtaining a change of government by lawful means without any of the above are not seditious under Section 124A;

(iv) Obscenity or vulgarity by itself should not be taken into account as a factor or consideration for deciding whether a case falls within the purview of Section 124A of IPC, for they are covered under other sections of law;

(v) A legal opinion in writing which gives reasons addressing the aforesaid must be obtained from Law Officer of the District followed within two weeks by a legal opinion in writing from Public Prosecutor of the State.

2.(i) All Unit Commanders are directed to follow above instructions scrupulously.

(ii) It must also be kept in mind that the instructions mentioned above are not exhaustive and other relevant factors depending from case to case may also be kept in mind while applying Section 124A of the IPC.”

The state government responded by issuing a circular on August 27, 2015, containing guidelines to be followed by police officials for filing sedition cases. However, it withdrew it less than a month later after it was challenged before the High Court, which put a stay on it. Nevertheless, this has led to far fewer sedition cases being filed in Maharashtra. Even when cases are filed, anticipatory bail becomes simpler because ordinarily, the concerned police station would not have followed the guidelines.

For instance, in 2020 when a student from the Tata Institute of Social Sciences was charged with sedition for having chanted slogans in favour of student activist Sharjeel Imam, also detained on sedition charges, at a queer pride parade, the Bombay High Court immediately granted anticipatory bail since the guidelines were not followed.

However, after Vinod Dua, it is possible that these guidelines lose all their efficacy, since Vinod Dua holds that no guidelines whatsoever, either procedural or substantive, can be issued to check the rampant misuse of sedition since that would amount to encroachment in the legislative field.

Also read: Non-violent speech and the violent State: Understanding ‘Sedition’ in India

Reading down sedition also does not seem to be a possibility since it has already been read down without any substantial impact on the ground. The only way to deal with this draconian law is to strike it down. There is no middle ground.

Kedar Nath Singh Wrongly Decided 

The Kedar Nath Singh judgment was legally incorrect when it was delivered. Just to illustrate, section 124A is a direct attack on the fundamental right to freedom of speech and expression, and cannot be saved by any of the exceptions enumerated in Article 19(2). Kedar Nath Singh completely ignored the history of the draconian law as well as the Constitutional Assembly debates which led to omission of the word sedition from Article 19(2).

Article 19(1)(a) guarantees the freedom of speech and expression while Article 19(2) provides those exceptions in which the right can be curtailed. These include the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality, contempt of court, defamation and incitement to an offence.

While there was an attempt to include sedition among the exceptions, the Constituent Assembly ultimately decided against it. Kedar Nath Singh wrongly justified it on the ground of the ‘law and order’ exception, ignoring its direct and –disproportionate impact on the freedom of speech and expression. It ignored the vague and overbroad wording of the section. Bringing in the violence angle only softened the otherwise severe impact. It also ignored that the violence which the Supreme Court sought to address was in any case covered as an offence under other provisions of the IPC, and one did not need a separate provision with punishment up to life for this purpose.

More importantly, since Kedar Nath Singh there have been many changes that make the continued existence of this provision totally egregious. Since 1962, a large number of countries, including the United Kingdom itself, have done away with the offence of sedition from their legislative books. Since then, India has signed and ratified various international instruments which are in conflict with the penal offence of sedition.

The grounds to challenge the constitutionality of enactment have been widened to include manifest arbitrariness, and more importantly, the proportionality principle has undergone expansion in the last few years. Besides, the frightening and unsettling effect of such provisions has been frowned upon.

In its judgment in Shreya Singhal v. Union of India (AIR 2015 SC 1523), the Supreme Court held that Section 66A of the Information Technology Act, 2000 has a chilling effect on freedom of speech and expression and is thus violative of Article 19(1)(a) of the Constitution. While arriving at this finding, the court observed the following:

“A provision of law that forces people to self-censor their views for fear of criminal sanction violates the constitutional guarantee of free speech and as such it is unconstitutional. … The overhanging threat of criminal prosecution merely for the exercise of civil liberties guaranteed by the Constitution, by virtue of a vague and widely worded law is in violation of Article 21 of the Constitution of India…”

From Non-Cognizable To Cognizable Offence

There is one important aspect of the misuse which needs special mention. In 1962, when the Kedar Nath Singh judgment was delivered, we were governed by the British-era Criminal Procedure Code of 1898. Under that Code, the provision of sedition was non-cognizable, and an arrest could be affected only after a warrant from the Magistrate. Thus, there was a judicial oversight before an arrest could take place. For instance, Gandhi was arrested in 1922 on charges of sedition only after a Magistrate issued a warrant.

The 1898 Code was replaced by the Criminal Procedure Code, 1973 which governs us today. Under it, sedition has been converted into a cognizable offence and the police can arrest without warrant from a Magistrate. Thus, the judicial oversight prior to arrest has gone. This has given unbridled powers to the police to arrest on allegation of sedition.

The shocking journey of sedition has seen it go from being called the prince amongst the political sections of the British Raj by Mahatma Gandhi, to being hammered as unconstitutional during the Constitutional Assembly debates, to being upheld as constitutionally valid during the republican era to becoming even more draconian by being made a cognizable offence since 1973. 

Judiciary must repeal sedition law,  as Parliament won’t

Sedition is not the only draconian law in India. There are many more in the same vein, such as UAPA, the National Security Act, 1980, the Armed Forces (Special Powers) Act, 1958, the various public safety laws in most states, which also need to be repealed.

The extreme misuse and abuse of sedition law to muzzle dissent can no more be softened through reading down, issuing guidelines, or appealing to the police. It was an unconstitutional law and continues to be so today. It is anti-democratic, and against the freedom of speech and expression. It is being used to infringe upon the right to life and personal liberty. It is high time that it is junked.

Also read: Now, Mere Disagreement is Sedition

The Parliament will not do this: there are too many political benefits for the ruling political party, and even the opposition parties tend to use it when they get the opportunity. The Supreme Court should therefore stand tall and put the section where it belongs: into the dustbin of history.

While the Supreme Court has on occasion expressed its concern towards journalists bearing the brunt of the sedition law, and rightly so, it is also necessary for the Court to realise that there are a large number of non-journalists, too, who are also victims of sedition law.

(Mihir Desai is a Senior Advocate at the Supreme Court of India and Bombay High Court. The views expressed are personal.)

Originally Published in The Leaflet