A bench of Justices U U Lalit, Indira Banerjee and K M Joseph admitted a plea filed by two journalists, who challenged the validity of the penal provision that prescribes punishment of up to life imprisonment for sedition. The journalists, who are themselves facing sedition charges for allegedly voicing against political leaders and had to spend months in jail, pleaded that the law outlived its utility and it was being misused by people in power against those who criticise them.
Senior advocate Colin Gonsalves and lawyer Tanima Kishore, appearing for the petitioner, contended that many countries, including England that had introduced sedition law in India, have scrapped the penal provision pertaining to the offence and pleaded the court to re-examine the law in the present context. They alleged that the validity of Section 124A was upheld by the apex court in 1962 since the need of the hour then was to prevent the public violence and public disorder stopping short of waging war against the state.
“Section 124-A, was, at the time a necessary tool in crime control. It is conceivable that if sedition had been held unconstitutional in 1962, there may have been a lacuna in the law, the mischief —public disorder and violence — going unpunished. Contrastingly, in 2021, this is not the case. The last nearly 60 years have seen extensive enactment of new legislations dealing directly with safety and security, public disorder and terrorism. Prominent among these are the Unlawful Activities (Prevention) Act, Public Safety Act and National Security Act. Various sections of these Acts deal directly with the overt conduct that sedition seeks to make penal — inciting violence and public disorder,” the petition said.
While upholding the validity of Section 124A, a Constitution bench of the apex court in Kedar Nath Singh vs State of Bihar case read down the section and held that acts involving intention or tendency to create disorder, or disturbance of law and order, or incitement to violence would be made penal by Section 124-A.
Referring to the misuse of Section 124A, the petitioner journalists, Manipur-based 41-year-old Kishorechandra Wangkhemcha and 53-year-old Chhattisgarh-based Kanhaiya Lal Shukla, alleged that the number of sedition cases registered across the country doubled from 35 in 2016 to 75 in 2018 but no chargesheets were filed in over 70% of the cases, and only four of the 43 cases in which trial had been completed resulted in conviction.
“Many cases have recently made headlines in this regard. In examples of authorities employing the uncertain ‘intention’ or ‘tendency’ elements of sedition, people have been arrested and charged for merely possessing Maoist literature, merely interviewing people seen as threats, publicly criticising the government and speaking out against army atrocities,” they contended.
The bench after a brief hearing agreed to examine the plea and issued notice to the Centre seeking its response. “This writ petition prays for an appropriate writ, order or direction declaring Section 124-A of the IPc to be unconstitutional and void. Colin Gonsalves, senior advocate appearing for the petitioners, submits inter alia that the decision rendered by the Constitution bench of this court in Kedar Nath Singh v. State of Bihar may require reconsideration. Issue notice,” the bench said in its order.
The petitioners said that the section clearly infringes on the fundamental right to freedom of speech and expression and the restriction imposed by the section is unreasonable. They said Section 124-A no longer passes muster with the Constitution. They alleged that vagueness of Section 124-A exerts an “unacceptable chilling effect on the democratic freedoms of individuals who cannot enjoy their legitimate democratic rights and freedoms for fear of life imprisonment and that they were also frequently abused and misapplied”. They said that many democratic countries including the United Kingdom, Ireland, Australia, Canada, Ghana, Nigeria and Uganda, have held sedition law as undemocratic, undesirable and unnecessary.
“Section 124-A is unnecessary to protect the interests of state security and public disorder, and is duplicated by more recent legislation, which directly and sufficiently prevents and deals with the mischief of public disorder and public violence. There exists no urgency justifying the employment of Section 124-A, given that the interests of state security and the public order are sufficiently protected by other laws,” the petition said.