A division bench consisting of Justices Dipak Misra and Uday Lalit gave the direction on a petition filed by Prashant Bhushan. Bhushan was appearing on the behalf of the petitioners –NGO Common Cause and S. P. Udayakumar (an anti-nuclear activist against whom sedition charges have been made) – and said that there has been an increase in the number of sedition cases being filed.
Bhushan put these arguments before the SC: he argued that the law of sedition is and has been grossly misused, misapplied and abused by the authorities. He also said that the authorities are not following the judgment in Kedar Nath which states that Section 124A(sedition) is only applicable where there is violence or incitement to violence in the alleged act of sedition.
Passing a brief order, the Court said “we are of the considered opinion that the authorities while dealing with the offences under Section 124A of the Indian Penal Code shall be guided by the principles laid down by the Constitution Bench in Kedar Nath Singh vs. State of Bihar case. Except saying so, we do not intend to deal with any other issue as we are of the considered opinion that it is not necessary to do so. The writ petition is accordingly disposed off.”
The petitioners had in their petition, expressed concern at the increasing number of ‘sedition’ cases being filed across the country, the latest being the slapping of a charge against Amnesty International India for organising a debate on Kashmir and against Kannada actor-turned-politician, Ramya for her ‘Pakistan is not hell remark,’ and challenged this provision in the Indian Penal Code. They said there has been an increase in the number of cases of sedition against intellectuals, activists and students.
The petition was for the Supreme Court to address the misuse and misapplication of IPC Section 124A (sedition law) by the Centre and various state governments, which has led to routine persecution of students, journalists and intellectuals engaged in social activism. It submitted that these charges are framed with a view to instil a fear and to scuttle dissent and are in complete violation of the scope of sedition law as laid down by constitution bench judgment of Supreme Court in Kedar Nath.
In the petition, a prayer for the issuance of an appropriate writ, order or direction making it compulsory for the concerned authority to produce a reasoned order from the director general of police or the commissioner of police, as the case maybe, certifying that the “seditious act” would either lead to the incitement of violence or had the tendency or the intention to create public disorder – before an FIR is filed or an arrest is made on the charges of sedition against any individual, has been made.
In the various cases that have been filed in recent years, the charges of sedition against the accused have failed to stand up to judicial scrutiny. The petitioner therefore sought strict compliance with the constitution bench judgment of the Supreme Court in Kedar Nath in which the scope of sedition as a penal offence was laid down and it was held that the gist of the offence of sedition is “incitement to violence” or the “tendency or the intention to create public disorder”.
It was submitted that those actions, which do not involve violence or the tendency to create public disorder – such as the organisation of debates/discussions, drawing of cartoons and criticism of the government – do not constitute sedition.
Section 124A of the IPC states “whoever by words, either spoken or written, or by signs, or by visible representation, or otherwise, brings or attempts to bring into hatred or contempt, or excites or attempts to excite disaffection towards the government established by law in India shall be punished with imprisonment for life to which fine may be added or with imprisonment which may extend to three years.”
The petitioners in their petition and submissions regretted that more than 50 years since the Kedar Nath judgment, Section 124A of the IPC was being allowed to be used irrespective of whether the alleged act or words are, in fact, seditious acts, or constituting a “tendency to cause public disorder or incitement to violence”.
In carrying out arrests and slapping charges, the police and the governments have rarely, if ever, respected this restriction. Successive governments have blatantly used Section 124A to stifle the voice of dissent and to further their political goals.
Quoting statistics, they said, according to the National Crime Records Bureau (NCRB) report of 2014, as many as 47 sedition cases were reported across nine Indian states in 2014 alone. Many of these cases did not involve violence or incitement to violence, which is a pre-requisite for a sedition charge. It was submitted that as per NCRB figures, a total of 58 people were arrested in connection with these cases, but the government managed only one conviction.
It said that in 1979, India ratified the International Covenant on Civil and Political Rights (ICCPR), which sets forth internationally recognised standards for the protection of freedom of expression. However, misuse of sedition law under Section 124A and the arbitrary slapping of charges continue to restrict speech in ways that are inconsistent with the ICCPR.
In the Kedar Nath judgment, the apex court unequivocally narrowed the scope of Section 124A, but it continues to be misused, thereby making it imperative for this court to issue necessary directions and guidelines to uphold its decision in Kedar Nath which is also compatible with India’s international obligations.
The petitioner acknowledges that words which directly provoke violence, or which directly threaten the maintenance of public order, may deserve censure. However, that is not what the misapplication of sedition law seeks to achieve. The present practice of misapplication of sedition law violates the Kedar Nath judgment. It further aims to crush all opposition to the ruling political party. The regular use of the law continues to have a chilling effect on the freedom of speech and expression in the country.
It was submitted that though a small number of sedition cases lead to actual conviction, it causes harassment of individuals till the time judgment comes, which in various cases takes several years.
Meanwhile, individuals charged with sedition have to live without their passport, are barred from government jobs and must produce themselves in court at all times as and when required. A person who is charged also has to spend money on legal fees.
The charges have rarely stuck in most of the cases, but the process itself becomes the punishment. The petitioners prayed for a review of all pending sedition cases and for criminal complaints for sedition made before a judicial magistrate with a view to curb the misuse and misapplication of the sedition law.