Expressing concern over the “misuse” of the sedition law and “no accountability of executive agencies”, the Supreme Court sought to know Thursday if this “colonial law” is still needed 75 years after Independence.
Hearing a petition by Major General (retired) SG Vombatkere who has challenged Section 124A of the IPC which deals with the offence of sedition, Chief Justice of India N V Ramana turned to Attorney General K K Venugopal: “It’s a colonial law. It was meant to suppress the freedom movement. The same law was used by the British to silence Mahatma Gandhi, Tilak etc. Still, is it necessary after 75 years of independence?”.
Venugopal told the bench – it also included Justices A S Bopanna and Hrishikesh Roy – that the provision need not be struck down and guidelines can be set out so that it meets its legal purpose.
Stating “I am indicating what I am thinking,” the CJI said if one sees the history of people charged under the section, the conviction rate is very low.
“The enormous power of this section can be compared to a carpenter being given a saw to make an item, (but) uses it to cut the entire forest instead of a tree. That’s the effect of this provision,” he said.
He cited the example of how Section 66A of the Information Technology Act continues to be used even after being struck down by the court in 2015.
“Take the 66A IT Act. Thousands of cases were registered even after being struck down,” he said, adding that if the police want to fix somebody, they can also invoke 124A, and that everybody is a little scared when the section is invoked. “These are all issues which need to be looked into,” he said.
“Our concern is misuse of law and no accountability of executive agencies,” the CJI said, clarifying that he was not blaming any state government for the misuse.
He said if some party doesn’t want to hear the voice of another party, they may use this type of law and implicate other people. “It’s a serious question for individuals,” he said.
The bench wondered why the government, which had repealed a number of pre-colonial laws, was not looking into the sedition law.
“Continuation of these types of laws after 75 years! The government has repealed a number of laws now… I don’t know why you are not looking into this,” the CJI said.
Venugopal told the court that the provision need not be struck down, but guidelines could be set out so that the law meets its legal purpose.
He said a similar petition is already pending before a bench headed by Justice U U Lalit and the court has directed that counter-affidavits be filed.
On April 30, the court had issued notice to the Centre on a petition filed by two journalists — Kishorechandra Wangkhemcha from Manipur and Kanhaiya Lal Shukla from Chhattisgarh.
The CJI said he was aware of this and would decide how to proceed.
Advocate P B Suresh, appearing for petitioner Vombatkere, also drew the court’s attention to the May 31 remarks by a bench headed by Justice D Y Chandrachud which, while restraining the Andhra Pradesh police from taking coercive action against two TV news channels charged with sedition, said it was of the view that section 124A of the IPC will need interpretation, especially on its application with regard to freedom of the press.
Vombatkere’s plea challenges the constitutional validity of the sedition law on the ground that it has a “chilling effect” on speech and is an unreasonable restriction on the fundamental right of free expression.
He 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”.
Meanwhile, in a separate petition, former Union Minister Arun Shourie too has urged the Supreme Court to declare section 124A IPC as unconstitutional.
Referring to the Supreme Court decision upholding the validity of the provision in the 1962 matter of Kedar Nath Singh v. State of Bihar, Shourie’s petition states that in that case “the constitutionality of sedition was tested and upheld on the premise that all laws enjoy a ‘presumption of constitutionality’.”
But the court “in Navtej Singh Johar v. Union of India… and Joseph Shine v. Union of India… has held that the presumption of constitutionality does not apply to pre-constitutional laws as those laws have been made by foreign legislature or body… and hence ‘Kedar Nath’ needs revisiting”.
He said the Kedar Nath judgment also “failed to take note of the judgment of the Constitutional Bench in Superintendent Central Prison v. Dr Ram Manohar Lohia… wherein it was held that (a) only aggravated disturbance of ‘public order’ as opposed to mere ‘law and order’ could be used to restrict freedom of speech and expression, and (b) there should be direct and proximate connection between the instigation and the aggravated disruption of public order”.