Sedition law cannot be used against honest views, expressed peacefully

It is the need of the hour to contain the forces of bigotry and intolerance which pose a grave threat to our democratic secular republic.

Written by Soli J. Sorabjee | Updated: August 25, 2016 10:50 am
ramya, Amnesty International, Amnesty International case, Amnesty International sedition case, sedition law, ramya case, Divya Spandana, manohar parrikar sedition, ramya sedition, indian penal code, what is sedition, what is sedition law, freedom of speech, freedom of expression, british rule, supreme court, india, pakistan, india pakistan, kedarnath vs state of bihar case, kedarnath case, Maurice Gwyer, indian express opinion, opinion Ramya remarked that the people she met in Pakistan, during her visit there, were hospitable.

Gandhiji described “sedition” as the prince of the Indian Penal Code (IPC). No fundamental right in our Constitution is absolute. Freedom of speech and expression guaranteed by Article 19(1)(a) can be reasonably restricted on the grounds specified in Article 19(2). It is significant that during the debates in the Constituent Assembly, the founding fathers, in view of their bitter experience of the application of the sedition law by the British colonial regime, deliberately omitted “sedition” as one of the permissible grounds of restriction under Article 19(2) on freedom of speech and expression. However, sedition as a criminal offence remains in the IPC under Section 124A and provides for inter alia sentence of life imprisonment and fine upon conviction.

Section 124A was challenged in the Supreme Court as unconstitutional. In its celebrated judgment in the case of Kedarnath vs State of Bihar, the Supreme Court explained the scope of sedition law. It ruled that “vigorous words in writing and very strong criticism of measures of government or acts of public officials, would be outside the scope of Section 124A”. The Supreme Court further observed: “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.” The Supreme Court did not approve of the Privy Council’s judgments according to which any speech or writing which evinced disloyalty or ill feelings towards the government could be regarded as sedition. Many freedom fighters were prosecuted and punished for sedition by the British colonial regime.

The Supreme Court preferred the judgment of the Federal Court delivered by distinguished chief justice, Maurice Gwyer, who ruled that sedition law is not to be invoked “to minister to the wounded vanity of government. The acts or words complained of must either incite to disorder or must be such as to satisfy reasonable men that that is their intention or tendency”. The Supreme Court made the following significant observation: “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. So construed, the section in our opinion, strikes the correct balance between individual fundamental rights and the interest of public order. It is also well settled that in interpreting an enactment the court should have regard not merely to the literal meaning of the words used, but also take into consideration the antecedent history of the legislation, its purpose and the mischief it seeks to suppress.”

The Supreme Court limited the application of Section 124A to acts involving incitement to violence, which is the essential ingredient of the offence of sedition. That is our law, that is how 124A was interpreted and upheld as constitutional by a Constitution Bench. Therefore the question whether certain speech or acts constitute sedition are questions of fact which have to be determined by a court of law keeping in mind the principles enunciated by the Supreme Court in Kedarnath. Subsequent judgments of the Supreme Court have reaffirmed the principles laid down in Kedarnath.

Recently sedition law has been invoked against Amnesty International on the ground that certain slogans insulting to India were uttered at its recent event in Bengaluru. If that be so, it is certainly deplorable and may expose Amnesty to civil and criminal proceedings. One can certainly criticise and condemn the alleged anti-India slogans. But mere utterance of slogans by itself does not constitute sedition unless there is exhortation to overthrow the government of the day by recourse to violence, which is the prerequisite for invoking the sedition section. Surely our country is strong and mature enough to take in its stride alleged insulting slogans without rushing to invoke the law of sedition.

It is opined by some that Section 124 should be deleted. In my view Section 124A “sedition” as interpreted by the Supreme Court is necessary. There may be cases where Section 124A can be legitimately invoked. Therefore, retain the section but strike down actions not in conformity with the section.

Take the recent case of Divya Spandana alias Ramya, who in response to Defence Minister Manohar Parrikar’s statement that Pakistan is hell, recounted her recent experience on her visit to Islamabad and stated that Pakistan is not hell and people there are like us — hospitable and friendly. I have visited Pakistan on more than one occasion and found Pakistani people to be hospitable. If I express my opinion, am I in breach of Section 124A of the IPC? The purported justification followed for booking Ramya under Section 124A is that her statement is an insult to people of India and therefore she should leave India and go to Pakistan. The degree of intolerance exhibited is appalling. Section 124A is not to be used as an instrument to muzzle unpalatable views. It is high time that appropriate penalties are imposed on those, including lawyers, who invoke Section 124A wantonly and cause pain and harassment to those who honestly express their opinion and who are intimidated by invocation of Section 124A. If this trend is not arrested, it would lead to self-censorship, a regrettable phenomenon.

One would expect judicial officers not to entertain manifestly ill-founded complaints. It is the need of the hour to contain the forces of bigotry and intolerance which pose a grave threat to our democratic secular republic. Ramya deserves to be congratulated for not yielding to intimidation and not saying sorry for expressing her honest views in a peaceful manner. It would be ridiculous to construe Ramya’s views as seditious.

The writer is a former Attorney General of India. This column first appeared in the print edition titled 'Theatre of the absurd'.

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