A step in the right direction: Experts

When the Indian Penal Code (IPC) was brought into force in colonial India in 1860, it had no section concerning sedition. Section 124A was inserted in IPC in 1870

NEW DELHI: The Supreme Court’s decision on Wednesday to keep the sedition law in abeyance till the Centre’s exercise of reviewing the law is over was lauded by former judges and legal luminaries as a step in the right direction in protecting fundamental freedoms.

The court’s order, several experts said, strikes a clear balance between individual liberties and state interest amid growing concerns over misuse of the colonial-era law.

“I have been quite vocal about abolishing the sedition law due to its growing misuse. I am of the firm belief that dissent is a vital aspect of democracy and there is no place for such laws that curb dissent in a civilised society,” former Supreme Court judge, justice (retd) Deepak Gupta, said.

Referring to the top court’s order justice Gupta added: “If I have no right to express my views, in the fear of being in minority, I cannot be prosecuted. There may be people who keep a dissenting view or criticise actions of the government or state. They should have the freedom to speak and not be visited with penal action under sedition.”

Sharing similar views as justice Gupta, former Kerala high court judge justice V Giri said, “It is rare to see a court stay a statute unless it is ex-facie unconstitutional. But as the case here suggests, till there is a reconsideration of the law, the court prima facie feels that nobody should be prosecuted as this is a penal statute affecting life and liberty of citizens.”

The Supreme Court’s order is “historic”, and for now, no one can be prosecuted under Section 124A (sedition) of Indian Penal Code, senior Supreme Court lawyer Rakesh Dwivedi said. “However, the court has permitted reconsideration by the Union for narrowly tailoring the new law to protect the security and integrity of the nation.”

According to Dwivedi, the course correction by the court was timely. “Recent abuse of sedition by various (state) governments stressed the need for a re-look to narrowly tailor the law in accordance with the doctrine of proportionality and fundamental nature of personal liberty under Article 21 of the Constitution,” he said.

Noted criminal lawyer KN Balagopal, however, said the top court “acted in haste”.

“On the face of it, this may seem to be good, but the question to be asked is whether the court has power to stay the legislation. The legislation is a creation of the legislature. To repeal or modify a law is a function left to them. Constitutional courts are given the supreme power to quash or set aside a law. By staying Section 124A, the court acted in haste,” he said.

Asked what alternative the court could have adopted in view of the time sought by the Centre to reconsider the law, advocate Balagopal said, “The court should have waited, and in the meantime, when the Centre is given time to reconsider (the law), all cases under sedition should have been clubbed together and bail granted to those incarcerated under this law. This should have been backed by directions to prevent further misuse of the law by State.”

Differing with the course of action suggested by advocate Balagopal, Supreme Court senior lawyer KV Vishwanathan said the top court’s order is “salutary” and logical in the given situation.

“This was the only logical course that was open to the court when the Union government fairly said that the sedition law needed a relook. No one can be prosecuted under an uncertain penal provision. There are other provisions in the penal statute where recalcitrant speech can be brought to book,” he said.

Under Section 124A, the offence of sedition is committed when a person by words, signs, visible representation, or otherwise, brings or attempts to bring into hatred or contempt, or excites or attempts to excite disaffection towards the government.

The expression “disaffection” includes disloyalty and all feelings of enmity

“... it is clear that the Union of India agrees with the prima facie opinion expressed by this Court that the rigors of Section 124A of IPC is not in tune with the current social milieu, and was intended for a time when this country was under the colonial regime. In light of the same, the Union of India may reconsider the aforesaid provision of law.”

“This Court is cognizant of security interests and integrity of the State on one hand, and the civil liberties of citizens on the other. There is a requirement to balance both sets of considerations, which is a difficult exercise. The case of the petitioners is that this provision of law dates back to 1898, and pre-dates the Constitution itself, and is being misused. The Attorney General had also, on an earlier date of hearing, given some instances of glaring misuse of this provision, like in the case of recital of the Hanuman Chalisa.”

“Therefore, we expect that, till the re-examination of the provision is complete, it will be appropriate not to continue the usage of the aforesaid provision of law by the governments.”

Comments expressing disapprobation of govt's measures to obtain their alteration by lawful means, without exciting (or attempting to excite) hatred, contempt, or disaffection

Comments expressing disapprobation of the administrative or other govt action without exciting (or attempting to excite) hatred/contempt/disaffection of all cases filed under Section 124A can be traced to just five states

Cases 0 1 3-9 10-30 30-66