For apex court, exercise of free speech is not the equivalent of sedition

The 279th report of the Law Commission of India recommending the retention of the sedition law -- insisting that repealing the legal provision can have serious adverse ramifications for the security and integrity of the country --- has brought the colonial law back into the reckoning.

 

On May 11 last year, in a path-breaking order, the Supreme Court directed the Centre and all the state governments to refrain from registering any FIR or taking any coercive measures, while suspending all continuing investigations in relation to the Indian Penal Code's Section 124A (sedition), and also directed that all pending trials, appeals, and proceedings be kept in abeyance.

 

The Law Commission of India not only recommended retaining the sedition law, but also loosening its definition and enhancing the punishment in terms of jail time. The commission cited a slew of Supreme Court judgments in connection with sedition in its report.

The challenge to the constitutionality of Section 124A came directly before the Supreme Court for the first time in Kedar Nath Singh v. State of Bihar (1962). The constitution bench instituted for deciding the same upheld the validity of Section 124A and after taking a detailed account of the history of Section 124A, the court explicitly recognised that the state needs protection from the forces who seek to jeopardise its safety and stability.

Then, the court made the following observation: "This offence, which is generally known as the offence of sedition, occurs in Chapter VI of the Indian Penal Code, headed 'of offences against the state'. This species of 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 to have the tendency to lead to the disruption of the State or to public disorder."

In its report, the Law Commission said the Supreme Court in Kedar Nath Singh took note of its earlier decision in Ramji Lal Modi (1957) to observe that the latter judgment throws a good deal of light upon the ambit of the power of legislature to impose a reasonable restriction on the exercise of the fundamental right to freedom of speech and expression.

The report said: "The Supreme Court took note of the strict test of proximity as laid down in Ramji Lal Modi and reinterpreted in Ram Manohar Lohia (1960). Thus, while laying down the test for sedition, the court held that unless the words used or the actions in question do not threaten the security of the state or of the public or lead to any sort of public disorder which is grave in nature, the act would not fall within the ambit of Section l24A of IPC."

The panel said as per the Kedar Nath Singh judgment, proof of violence is not essential for establishing the offence of sedition. "That the accused Kedar Nath Singh was convicted and punished for his speech without any proof of direct incitement of violence or any imminent danger of public disorder is further testimony to the Court adopting the 'tendency test' for interpreting Section 124A of IPC," said the report.

The panel said this objective test of tendency applied by the court entails examination of alleged seditious material present before the court, the circumstances and the conduct of the accused.

"This test need not necessarily inquire into the consequences of the alleged seditious expression like actual violence or real impact of the disputed material. If the speech or expression is deliberately made and the content is pernicious enough, there is no requirement of proof of any overt conduct to establish tendency of violence. In the absence of such an inference, the Supreme Court could never have upheld the conviction of Kedar Nath Singh," said the report.

The Supreme Court, in the case of Raghubir Singh v. State of Bihar (1987), held that in order to constitute an offence of conspiracy and sedition, it is not necessary that the accused himself should author the seditious material or should have actually attempted hatred, contempt, or disaffection.

In the case of Balwant Singh v. State of Punjab (1995), the apex court held that mere casual raising of slogans a few times against the state without any overt act, which neither evoked any response nor any reaction from anyone in the public, does not attract the provisions of Section l24A of IPC.

The report said: "Briefly touching upon the issue of freedom of expression and its conflict with reasonable restrictions enumerated in Article l9(2), the Supreme Court in S. Rangarajan v. P. Jagiivan Ram (1989), held that there has to be a balance between free speech and restrictions for special interest as the two cannot be balanced as though they were of equal weight. While invoking the analogy of 'spark in a powder keg', the court held that exceptions have to be construed precisely as deviations from the norm that free speech should prevail except in exceptional circumstances."

A prayer was made in the case of Common Cause v. Union of India (2016), to issue directions for review of pending cases of sedition in various courts, where a superior police officer may certify that the 'seditious act' either led to the incitement of violence or had the tendency or the intention to create public disorder.

"The court granted the prayer and directed the authorities that while dealing with Section l24A of IPC, they are to be guided by the principles laid down in Kedar Nath Singh," said the report.

The panel said: "In Vinod Dua v. Union of India (2021), affirming the law laid down in Kedar Nath Singh, the court held that a citizen has a right to criticise 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."

In June 2021, the apex court quashed a sedition case registered against senior journalist Vinod Dua for his critical remarks against the Prime Minister and the Centre in a YouTube telecast. The apex court upheld the right of every journalist to criticise the measures of the government and the free speech of a journalist should be protected from charges of sedition.

On May 11, 2022, the Supreme Court in S.G. Vombatkere v. Union of India, directed all the state governments and the Centre to keep all pending trials, appeals and proceedings arising out of a charge framed under Section 124A to be kept in abeyance.

The apex court in its prima facie observation, opined that the rigours of Section 124A of IPC were not in tune with the current social milieu, and were intended for a time when this country was under the colonial regime.

(Sumit Saxena can be contacted at sumit.s@ians.in )

--IANS

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