Updated: July 2, 2021 8:35:33 am
Written by G S Bajpai and Ankit Kaushik
In a recent judgment, the Supreme Court quashed an FIR against senior journalist Vinod Dua that labelled his critical analysis of the government’s handling of the Covid-19 crisis as sedition. The decision is a cause celebre for activists and journalists. Nevertheless, the judgment fritters an opportunity to address several lacunae in the law of sedition, especially the requirement to make the “restrictions” imposed by it reasonable, in the present day context.
In its analysis, the court has examined the march of law up to the Kedarnath case (1962), and has concluded that disapprobation without the excitement of feelings to incite public disorder resulting in violence, would not amount to disaffection under section 124A. In contrast, in another recent order of the Supreme Court in the case of M/S Aamoda Broadcasting Co. Pvt. Ltd. v. State, it was observed that the scope of section 124A requires an interpretation in context of the rights of the press and of those who are critical of the government. Unlike the Vinod Dua judgment, this order perceives a need for comprehensive sedition law reform in a post-truth world where the safeguards built by Kedarnath struggle to suffice.
To enunciate the point above, it is quite telling that the higher judiciary has had to flex its suo motu powers to prevent the harassment of citizens for airing their grievances during the Covid-19 crisis on social media. Even in the context of sedition, as per the government’s own statistics, the frequency of registration of cases has increased with each passing year. While only 30 cases of sedition were registered in 2015, the figure steadily rose to 35 in 2016, 51 in 2017, 70 in 2018 and 93 in 2019.
Much has been written to document the use, abuse and misuse of the offence of sedition as a tool to curb dissent by the powers that be, irrespective of ideological and political leanings. The colonial aims of sedition law and its chilling effect upon the right to freedom of speech and expression requires little enunciation here. But, placed in this context, the observations of the Supreme Court in M/S Aamoda provide us with a glimmer of hope. To be clear, there is a definite need to go beyond Kedarnath to redefine the boundaries of sedition law, and several aspects of the law require reconsideration.
There is a need to examine and reinterpret the provision so as to allow for it to be categorised as a “reasonable restriction” on speech and expression in terms of Article 19(2). A major lacuna is the absence of a mens rea requirement which entails that no conduct can constitute a crime unless it is accompanied by a guilty mind. The lack of an inbuilt mens rea requirement greatly magnifies the potentiality for misuse. To remedy the same, the 42nd Law Commission Report recommended the insertion of the phrase “intentionally or knowing it to be likely” into the construction of the section.
Another issue is the abnormal punishment scheme which ranges from a mere fine of any amount, even a single Rupee, to imprisonment for life. Such a broad punishment scheme is odd and extremely rare within the IPC — the only other section which provides for such a punishment scheme is section 125. Even if the punishment scheme were to be compared to that of culpable homicide under section 304, which also allows for the imposition of a mere fine as punishment, depending on the presence or absence of knowledge and intention, one would observe an absence of a similarly principled basis for a broad range of punishment in section 124A. Therefore, a gradation of liability based upon mens rea standards, can help guide the court’s discretion in deciding upon the quantum of punishment. In any case, as the 42nd LCR recommends, there is a need for rationalisation of the punishment scheme.
It is also important to reconsider the cognisability of section 124A. The 43rd LCR found that it would not be desirable if the offence was to be cognisable and non-bailable, and instead suggested that the offence should be non-cognisable and non-bailable. Furthermore, there is a need to impose a period of limitation upon the applicability of the section and the observations of the 43rd LCR as regards the transitory nature of the offence are equally important in this context.
While the criticisms of the abuse of sedition by the government are indeed fair in as much as they stress upon the manner in which the same negatively impacts our constitutional guarantees, a critical engagement with the offence of sedition in the manner exemplified above is undoubtedly the need of the hour. It is, as the Supreme Court observed in Kedarnath, – “every state … needs to be armed with the power to punish those who by their conduct, jeopardize the safety and stability of the state … or … lead to … public disorder.” Critical and reformative engagement therefore requires a redirection in order to build those safeguards which can help the law satisfy a reasonable restrictions enquiry.
While the Vinod Dua judgment has most certainly provided a life-saving breath at a time when civil-society seems to be gasping for air, its analysis is a mere reiteration of a reasoning adopted by the Supreme Court in a multitude of judgments. Between the Kedarnath and Vinod Dua cases lie a string of missed opportunities for the Court to revisit the underlying jurisprudence of sedition law. One can only be hopeful that the Court will remedy these and other identified lacunae in the coming days.
Bajpai is vice chancellor, Rajiv Gandhi National University of Law, Punjab and Kaushik is a scholar of criminal law
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