The circular by the government reflects a rather scared mindset, where it seems to be afraid of the adverse reactions it has been garnering in its first year itself.
Such a circular can never stand the test of law and there are good reasons for this. Even the section 499 of the Indian Penal Code, which deals with defamation, makes two very critical exceptions. One exception is when the truth is for the imputation made for public good. The other exception when defamation can’t be applied is when any opinion is made in good faith with respect to the conduct of the character of a public servant in discharge of his public functions.
Both these exceptions offer protection to those who criticise anyone holding public office, as long the criticism deals with the public good. How can the government come along and take this protection away with such a circular? After all, these leaders and officials are public servants and every action of theirs is in the public domain.
These public servants cannot be so sensitive. If they are so sensitive and particular, then they shouldn’t even contest elections and occupy public offices.
This section, 124 A, and the circular, are both violating Article 19 of the constitution of the country. How can a democratically elected government violate our land’s constitution?
The boundaries of such a draconian circular are so vast that tomorrow, if someone criticises their handling of the agrarian crisis, the government may impose this section and jail them for sedition.
What is worse is the government’s move to leave the interpretation of such a crucial law to the investigating officer. This means that the law can be held hostage to the biases and malafide intentions of officers who are imposing the law.
I vividly recall when two girls from Palghar were arrested under the draconian section 66 A of the Information Technology Act, the then home minister RR Patil had said his policemen had erred in interpreting the law. Now, we suddenly trust the same bunch of cops enough to let them interpret the law regarding sedition?
This circular is nothing but ‘Talibani’ in its spirit, especially from a government that was elected on the promise of good governance.
Any law that accords excessive discretion to police is an arbitrary provision and violates Article 14 of the Constitution of India. Hence, for more than one reason, this diktat is ultra vires to the Constitution of India.
(Abha Singh was with the Indian Postal Service who quit prematurely as Director of Postal Services, Maharashtra & Goa. She now practices law and takes up many litigations of public interest)