Sedition law needed to safeguard nation: A-G

The penal provision of sedition in India must be retained to ascertain the security of the nation and its citizens, attorney general (A-G) KK Venugopal submitted before the Supreme Court on Thursday, adding that some guidelines may be laid down by the court to control the misuse of the statutory provision.

Presenting a strong defence of the constitutional validity of Section 124A (sedition) in the Indian Penal Code (IPC), the top law officer told a bench, led by Chief Justice of India NV Ramana, that the contours of the penal provision have already been delineated by a constitution bench in 1962 and therefore, there is no need to take a relook at the provision.

Venugopal, however, submitted that he is simply assisting the court in the matter, and that the stand of the central government, which is to be conveyed through the solicitor general (S-G) , could be different from his views.

“According to me, Kedar Nath (the Constitution bench judgment of 1962) is a very balanced judgment between security of state and freedom of speech. This section (124A) has to be retained. I am saying some guidelines can still be issued. What’s happening in this country? Yesterday, someone was released on bail after getting arrested since they wanted to recite Hanuman Chalisa,” the A-G told the bench, also comprising justices Surya Kant and Hima Kohli.

Venugopal was referring to the bail granted to Amravati MP Navneet Rana and her husband MLA Ravi Rana on Wednesday. The couple was arrested by Mumbai Police on April 23 for alleged offences of sedition and breach of harmony following their call to chant the Hanuman

THE THREE-JUDGE BENCH ALSO DELIBERATED ON REFERRING THE PETITIONS CHALLENGING SECTION 124A (SEDITION LAW) OF THE IPC TO A LARGER BENCH

in front of Shiv Sena supremo and Maharashtra chief minister Uddhav Thackeray’s family residence Matoshree.

In the Kedar Nath case, a Constitution bench upheld the validity of the sedition law under IPC, holding that the purpose of the crime of sedition was to prevent the government established by law from being subverted because “the continued existence of the Government established by law is an essential condition of the stability of the State”. Section 124A is punishable with a jail term ranging from three years to life.

At the same time, the five-judge bench defined the scope of Section 124A. It held that Section 124A only penalised words that reveal an intent or tendency to disturb law and order or that seem to incite violence. The Supreme Court underlined that the presence of a pernicious tendency to incite violence is a precondition to invoke the sedition clause and that the penal provision cannot be used to stifle free speech.

As the hearing commenced on Thursday, S-G Tushar Mehta, representing the Union government, sought some more time to formalise the Centre’s stand on the issue. The threejudge bench, however, sought to know from the petitioners’ lawyers, led by senior advocate Kapil Sibal, if the cases will have to be referred to a larger bench since most of the petitions have questioned the five-judge bench decision in the Kedar Nath case.

On his part, Sibal argued that a sea change in jurisprudence has taken place since 1962 when the Kedar Nath verdict came. Therefore, he said, Section 124A could be struck down chiefly on the anvils of Articles 14 (right to equality) and Article 21 (right to life and liberty), without there being any need to delve into questions of Article 19(1)(a) (freedom of speech) which was the premise of the Kedar Nath judgment.

At this point, S-G Mehta said that the judicial discipline would require referring the issue to a larger bench if the court decides to examine the issue after a written response from the Centre is filed. Mehta added the executive would take an independent and holistic decision in the matter, considering the wide repercussions of the matter.

As the bench continued its deliberation over referring the matter to a larger bench in the wake of the petitioners’ demand to either review the Kedar Nath verdict or overrule it, it sought Venugopal’s assistance.

Throwing his weight behind the Kedar Nath verdict, the A-G said that this judgment is the “last word” on validity of Section 124A since it traced the entire judicial history spanning over privy council and federal courts before coming to a wellreasoned conclusion.

“They (petitioners) will have to show something is wrong with that judgement even if there is a change in the law and jurisprudence over the years. The question that would arise is if a provision is valid but it is abused and violates a fundamental right, can the law be invalidated on that ground alone? This court has said that a law cannot be struck down on the sole ground of possible abuse and each case will have to be tested separately by the court. What is there so abhorrent under Section 124A, which protects the security of the state and consequently the security of citizens?” asked Venugopal.

He added that the offence of sedition is something that must affect a government and hence, the Kedar Nath verdict must be taken as a valid judgment. “Arguments on Articles 14 and 21 will not make a difference since inciting violence or creating public disorder cannot be protected. Subsequent interpretations of the law will not affect the validity of Section 124A. In my view, there is no ground to refer this case to a larger bench,” Venugopal emphasised. Sibal tried to counter the A-G’S submissions by arguing that an immediate intervention of the court is required to protect fundamental rights of the people. “The colonial masters are gone and we are the masters of our own destiny...everyday a journalist, a student or an ordinary man spends time in jail under this colonial era law is contrary to their fundamental rights,” he said.

To this, the bench responded that these arguments would be appreciated when the court deals with the matter on merit, but for the time being, the petitioners need to cross the first hurdle by satisfying how a three-judge bench is competent to adjudicate the clutch of cases.

“In every petition before us, there is a prayer to review or overrule Kedar Nath (judgment). One of the aspects being argued is the subsequent development of law and jurisprudence. But subsequent development of law may not change the judicial discipline of ignoring or overruling a fivejudge bench by a three-judge bench. Can we ignore a five-judge bench? Therefore, the first question is whether we should sit in three or five or seven (judge composition),” the bench told Sibal.

For a detailed argument on the point of referring the issue to a larger bench, the court fixed May 10 as the next date of hearing and asked both sides to file their written submissions. The bench also directed the central government to submit its counter affidavit by Monday to clarify their stand on the validity of Section 124A.

During the proceedings on Thursday, the court, at one point, asked Mehta if the law officer could divulge the “prima facie view” of the government on the issue. But Mehta responded that the competent authority is yet to finalise the stand of the government.

On April 27, the bench directed the government to clarify its stand within four days on the clutch of writ petitions challenging the validity of Section 124A in the IPC, and fixed May 5 as the day to comchalisa mence detailed hearing in the matter. The government, however, filed two applications subsequently, requesting additional time to file its affidavit.

The court was considering a batch of petitions, filed separately by former army officer SG Vombatkere, Editors Guild of India, TMC MP Mahua Moitra, NGO PUCL, and some journalists, pressing for striking down Section 124A. The last effective hearing in the matter was conducted on July 15, 2021 when the top court lamented the “enormous power of misuse” of the sedition law in India, and asked the Union government why it should not scrap a colonial law that was once used by the British government to oppress the freedom movements and leaders such as Mahatma Gandhi and Bal Gangadhar Tilak.

The court, on that day, observed that indiscriminate use of Section 124A is like a saw in the hands of a carpenter who cuts the entire forest instead of a tree. Putting the central government to notice on the petitions that have pressed for striking down Section 124A, the court emphasised that it was concerned about “misuse of the law and lack of accountability of executive and the investigating agencies”.

The court’s comments in July 2021 came amid a sharp increase in the number of sedition cases filed. Between 2016 and 2019, according to data from the National Crime Records Bureau, the number of such cases rose by 160% to 93. But in 2019, the conviction rate in such cases was a mere 3.3%, which means just two of the accused were convicted.

India’s sedition law has an interesting past — it was introduced by the British in 1870, and almost dropped from the Constitution in 1948 after discussions of the Constituent Assembly. The word “sedition” disappeared from the Constitution on November 26, 1949 and Article 19 (1)(a) gave absolute freedom of speech and expression. However, Section 124A continued to stay in IPC.