SC: Does India need a colonial sedition law?
The Supreme Court on Thursday rued the “enormous power of misuse” of the sedition law in India and asked the Union government why it should not scrap a colonial law that was once used by the British government to oppress the freedom movements and leaders such as Mahatma Gandhi and Bal Gangadhar Tilak.
The government’s top law officer, attorney general (AG) KK Venugopal, on his part, submitted that the entire section need not be struck down, and the court could lay down strict guidelines so that provision meets its legal purpose.
The court observed that indiscriminate use of Section 124A (sedition) in the Indian Penal Code is like a saw in the hands of a carpenter who cuts the entire forest instead of a tree.
“Unfortunately, continuance of this law after 75 years...This government has been scrapping many obsolete laws. We don’t know why they are not looking into this law? Continuance of this law is a serious threat on functioning of institutions and individuals’ liberty,” remarked a bench, headed by Chief Justice of India (CJI) NV Ramana.
Putting the central government to notice on a clutch of petitions that have pressed for striking down Section 124A, the court emphasised that it was concerned about “misuse of the law and lack of accountability of executive and the investigating agencies”.
The court’s comments come amid a sharp increase in the number of sedition cases filed. Between 2016 and 2019, according to data from the National Crime Records Bureau, the number of such cases rose by 160% to 93. But in 2019, the conviction rate in such cases was a mere 3.3%, which means just two of the accused were convicted.
“There is no dispute that it is a colonial law and was used by the British to suppress freedom and was used against Mahatma Gandhi, Bal Gangadhar Tilak. Is this law still needed after 75 years of Independence? Do you have to keep it in the statute book?” the bench, which also included justices AS Bopanna and Hrishikesh Roy, asked the A-G.
Solicitor general Tushar Mehta, who appeared for the Union government, sought time to place the formal response on record, saying that the work of the court may get reduced once the Centre has submitted its affidavit in the matter.
The penal provision is punishable with a jail term ranging between three years to life term, with or without fine.
On Wednesday, the bench requested the A-G to assist it in adjudicating a petition, filed by former army officer SG Vombatkere, that was argued by advocate PB Suresh. This petition questioned the constitutional validity of Section 124A, and sought a directive to quash all proceedings under Section 124A pending with the police and courts across the country.
On Thursday, as the matter commenced, Venugopal pointed out that there were at least two other cases on the validity of 124A pending before the other benches of the Supreme Court, and hence, the CJI’s bench could hear all these matters together. At this point, senior counsel Shyam Divan submitted that the Editors Guild of India has also filed a petition for striking down the sedition law, and their petition should also be clubbed.
Agreeing to hear all these matters together, the bench began by asking the AG if it was necessary to retain section 124A of the IPC in the statute book, given the fact that the law had its origin during the colonial era and that the conviction rate in these cases has been dismal.
“If you see history of charging this section, conviction rate is very low. The enormous power of misuse of this section can be compared with a carpenter given a saw. Instead of cutting a tree, he cuts the entire forest,” observed the bench.
It cited Section 66A in the Information Technology Act, which was still being used to book and arrest people for social media posts despite the top court having scrapped the provision in 2015 for being arbitrary and disproportionately excessive.
“Take the 66A IT Act, thousands of cases were registered even after it having been struck down. If the police want to fix somebody, it can invoke 124A also. Everybody is a little scared when this section can be invoked. these are all issues which needs to be looked into...If a political party wants to suppress the dissenting voices, they can use this law to book others,” said the bench, adding it will examine all these cases on Section 124A after two weeks.
The other petition challenging Section 124A is being heard by a bench headed by justice Uday U Lalit. It has been filed by two journalists – Kishorechandra Wangkhemcha and Kanhaiya Lal Shukla working in Manipur and Chhattisgarh. On July 12, the A-G and the Union government sought time to file their submissions before that bench and the case was hence adjourned to July 27.
On June 3, a bench, headed by justice Lalit quashed a sedition case after ruling that every citizen has a right to criticize the government’s policies so long as it does not incite people to violence or creates public disorder. The bench underlined a 1962 constitution bench judgment in the Kedar Nath Singh case to assert that a journalist could not be prosecuted under Section 124A for “disapprobation of actions of the Government and its functionaries”,
Another bench, led by justice Dhananjaya Y Chandrachud, said in May that it is time to define contours of Section 124A of IPC to lay down what is sedition and what is not. The bench had said it while restraining the Andhra Pradesh government from taking any adverse steps against two Telugu news channels that were booked under Section 124A.
On Monday, at a public event, justice Chandrachud again emphasised that criminal laws, including anti-terror legislation, should not be used for muzzling dissent and that courts must act as the “first line of defence” against deprivation of liberty.