SC should strike down sedition law, portions of UAPA: Justice Nariman
The Supreme Court should strike down the colonial-era sedition law so that citizens of India can breathe more freely, said former Supreme Court judge Rohinton F Nariman on Sunday.
The retired judge, who in 2015 quashed Section 66A of the Information Technology Act in 2015 for having the “chilling effect” on the right to freedom of speech, also called the Unlawful Activities (Prevention) Act a “draconian legislation” that requires to be scrutinised by the apex court.
“I would exhort the Supreme Court to not send sedition law cases pending before it back to the Centre. Governments will come and go (but) it is important for the court to use its power and strike down Section 124A and offensive portion of UAPA. Then citizens here would breathe more freely,” said the retired judge, speaking at a function organised by Viswanath Pasayat Memorial Committee.
Justice Nariman was emphatic that the top court should not refer the clutch of petitions pending before it on the sedition law to the central government and that it should assert its power of judicial review to strike down the contentious Section 124A (sedition) in the Indian Penal Code (IPC). The penal provision is punishable with a jail term ranging between three years and life term, with or without a fine.
Justice Nariman also explained how UAPA came into the statute book after India’s wars with Pakistan and China. “We had China and Pakistan wars. Thereafter, we introduced the draconian legislation, Unlawful Activities (Prevention) Act. UAPA is a draconian Act as it has no anticipatory bail and has minimum 5 years imprisonment. This Act is not under scanner yet. This too has to be looked into along with the sedition law,” he said.
During his address, the former judge, who retired in August after seven-year tenure in the top court, narrated the history of the sedition law, pointing out that sedition was not there in the original draft of the IPC. “Sedition provision was there in draft but not in final book. But it was later discovered and redrafted. It was said that this section was left out by oversight. The wordings were also vague. Sentence under 124A was enormous as it was transportation for life and imprisonment for three years,” he said.
Justice Nariman then recounted how the British used the law against Indians including prominent freedom fighters. “There was the Bangobasi case. In that, an editor of newspaper Bangobasi was charged for publishing an article that spoke against the age of consent act in relation to child marriages. The author (of the article) said that child marriage was inherent to Indian culture. British judge was not charmed and therefore, held that editor was liable under Section 124A,” he added.
The judge also mentioned how freedom fighters such as Bal Gangadhar Tilak, Mahatma Gandhi and Jawaharlal Nehru were convicted for sedition for speaking against the colonial government.
“Gandhiji said affection (towards government) cannot be measured by law. He said disaffection should be given full hand unless it leads to violence. He said he considered it a privilege to be charged under Section 124A,” said justice Nariman, adding that Gandhi was sentenced to six years and he served two years behind bars while Jawaharlal Nehru too served jail terms in 1932 and 1934.
He also spoke at length about how Tilak was tried for sedition on more than one occasion, with Mohammad Ali Jinnah acting as Tilak’s defence counsel on one occasion.
The former judge also described how sedition was initially part of the exception to free speech under draft Article 19 of the Constitution. It was debated extensively before being dropped from the Constitution. But it, however, continued to remain in the Indian Penal Code.
“Then Supreme Court in Kedarnath Case (1962) ultimately said if we can read a particular provision in a particular way so long as disaffection was coupled with call for violence, only then it would be sedition,” said the former judge.
Justice Nariman also pointed out that RSS-backed Organiser magazine had to undergo pre-censorship in 1950 by the Nehru administration for speaking against the government. Sedition law and UAPA have a chilling effect on journalists, said justice Nariman.
On July 15, a Supreme Court bench headed by Chief Justice of India NV Ramana 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 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.
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 the provision meets its legal purpose. The court then sought a response from the central government on the bunch of petitions that pressed for striking down Section 124A. The case is yet to be heard next.