Six Decades Later, Challenge To Sedition Law Is Back In The Supreme Court
Two journalists from Manipur and Chattisgarh, Kishorechandra Wangkhemcha and Kanhaiya Lal Shukla, have succeeded in getting the Supreme Court of India to agree to examine the validity of the sedition law.
Often used by national and local authorities to muzzle dissent, Wangkhemcha and Shukla are also facing the brunt of the sedition provision under the Indian Penal Code. Both are being prosecuted for posting certain comments and sharing cartoons on Facebook. While Wangkhemcha has spent around 210 days in jail due to several FIRs registered against him, Shukla had to seek anticipatory bail from courts.
The use of this provision to silence journalists and activists has drawn severe criticism and calls for its abolition, including by retired judges of the Supreme Court. But the sedition provision already faced a judicial test six decades back and was found to be Constitutionally valid.
Can Wangkhemcha and Shukla’s petition succeed?
Is striking down the provision the only way?
BloombergQuint spoke to Senior Advocates on the future of sedition law.
On April 30, a three-judge bench of Justice UU Lalit, Justice Indira Banerjee and Justice KM Joseph asked the central government to respond to the petitions filed by the journalists. The court also issued the notice to the Attorney General for India who will be giving his views in the case.
In this case, the three-judge bench will first have to decide whether the earlier case (1962) was correctly decided, Senior Advocate Sanjoy Ghose pointed out.
If it reaches a conclusion that the case was incorrectly decided, then the bench will refer the issue to the Chief Justice of India to set up a constitution bench to revisit the case and if the case reaches that stage then it is likely to be heard by a seven judge bench.Sanjoy Ghose, Senior Advocate
Kedar Nath Singh Judgment No Longer Applicable, Petitioners Say
In 1962, a five-judge constitution bench of the top court had upheld the validity of Section 124-A in Kedar Nath Singh’s case as it found it to be a reasonable restriction on the freedom of speech and expression. The section seeks to punish those who excite or attempt to excite disaffection towards the government through spoken or written words or visible representation.
But the apex court had read down the provision to say there has to be a direct call for violence for it to be determined as sedition.
While the court had read down the section earlier, it has not helped as the abuse of the provision has been very easy for police officials who have routinely invoked the provision against dissenters, Senior Advocate Sanjay Hegde said.
Sedition remains like a big stick which can be liberally used before the court steps in and stop the misuse. In these circumstances, when our understanding of constitutional concepts has sharpened over the last 70 years, it could be a good thing for the Supreme Court to re-look at the constitutionality of the section and strike it down.Sanjay Hegde, Senior Advocate
This is an argument Wangkhemcha and Shukla have made in their petition too.
The petitioners have said while the apex court may have been correct in its finding then, the provision doesn’t pass constitutional muster today. This because striking down the sedition provision in 1962 would’ve created a legal vacuum—law enforcement wouldn’t have had any means to punish those harming public order and violence. But today, less intrusive alternatives are available under the law, the petition says.
For instance, sections of the Unlawful Activities Act, the Public Safety Act and the National Security Act deal directly with the same situations which sedition seeks to make punishable, namely inciting violence and public disorder.
Alternative legislation eliminates the need to employ Section 124-A to deal with public disorder and violence, the petition said.
‘Vagueness Is A Valid Ground To Strike Down A Law’
As their second argument, the petitioners have questioned the application of sedition law.
For decades now, they said, the law of sedition has been repeatedly misused and abused. The provision has been so widely interpreted and employed in such a discretionary manner that people merely exercising their democratic rights have found themselves booked under sedition.
Citing precedents laid down by the apex court, the petitioners said vagueness can be a valid ground to strike down a law. While abuse of law may not be a ground for striking it down, any constitutional inquiry involves a consideration of the prevailing conditions of the time, the petition says.
And the inherent political association of the abuse will have to be considered as a prevailing condition of the time, the petitioners tell the top court.
International Developments Justify Striking Down The Law
Finally, the petitioners said, the law of sedition is a colonial legacy which was carried on under the Indian Penal Code after India gained independence. But since then, many countries, including the U.K., have done away with sedition law.
The petition points out other examples of New Zealand and Ghana which have passed legislations repealing sedition. Law commissions of Canada, Ireland and Australia have recommended doing so as well.
The experience of other comparative jurisdictions should have persuasive value in the inquiry by the top court, the petitioners said.
India has obligations under international law such as the International Covenant on Civil and Political Rights. As per international law, the petitioners say, any restriction on freedom of speech must ensure that the restriction is ‘’provided for by law’’ and is necessary.
But the law of sedition fails the test as it is neither necessary nor it is sufficiently ‘’provided by law’’.
Sedition Law: The Road Ahead
Interestingly, just three months ago, another petition challenging the constitutionality of the sedition provision was filed before the apex court. But a bench of then Chief Justice SA Bobde, Justice AS Bopanna and Justice V Ramasubramanian had declined to hear it.
Different benches constitute different judges who may have different judicial philosophies. But merely because the court has dismissed a plea earlier does not mean it’s precluded from examining the similar issue at a later stage.Sanjoy Ghose, Senior Advocate
Both Hegde and Ghose said an existing precedent, such as the Kedar Nath judgment in sedition jurisprudence, makes it hard to challenge a provision of law. But they also point to recent examples to suggest it’s not a bridge that cannot be crossed.
The court has been moving towards more progressive interpretation of the Constitution. For instance, notwithstanding that it had upheld the Section 377 provision, a larger bench did strike it down.Sanjay Hegde, Senior Advocate
So there is no reason why Section 124A should not have the same fate, Hegde said.