Making Sense of the Supreme Court Order on Sedition

Justice Madan B Lokur writes: The offence of sedition has been invoked quite frequently in the recent past. The database of article-14.com called “A Decade of Darkness” is perhaps the only “live” study of sedition cases which informs us that sedition cases filed between 2014 and 2022 doubled as compared to the ones between 2010 and 2014. The people adversely affected also doubled—7,136 versus 3,762. We have, therefore, about 10,000 alleged seditionists among us today. Statistically, the doubling rate is not surprising since the period under consideration also doubled. So, what is all the noise about? First, the law of sedition has been weaponised by the current governments. Cases are filed for strange reasons. For example, the widowed mother of a child and the headmistress of a school were arrested and charged with sedition and schoolchildren subjected to questioning for hours only for participating in a play that contained an “objectionable” line relating to the Citizenship (Amendment) Act. Many such bizarre cases have been filed alleging sedition based on tweets, WhatsApp forwards, and so on. Second, the intention behind the use of the law of sedition is apparently intended to quell dissent and criticism and scare people into submission. Journalists are the principal targets of such an offensive. The late Vinod Dua was charged with sedition for a YouTube telecast in which he made some critical remarks against the present regime and the Prime Minister. Television coverage on the alleged mishandling of the pandemic in Andhra Pradesh landed allegations of sedition and conspiracy against the government on two television channels. The definition of sedition in Section 124A of the Indian Penal Code (IPC), particularly the word “disaffection,” is too broad and vague, and quite naturally so, since the section was introduced during the British Raj when anti-colonial or anti-imperialist writings and speeches were not tolerated. It can be given any nuance to suit the government of the day. It appears, however, that the law was invoked mainly against leading lights of the freedom movement, including Bal Gangadhar Tilak, M K Gandhi, and Jawaharlal Nehru. It would be quite surprising if common folk were charged with sedition for forwarding their copy of Kesari or Young India or reading aloud the “seditious” articles to the illiterate among their compatriots. This is the difference between pre-independence application of the law and today’s application. In its 1962 decision in Kedar Nath Singh, the Supreme Court “watered down” the rigour of sedition to limit its application within constitutional boundaries. The Court noted that the offence occurs in the chapter of the IPC relating to offences against the state—not against any individual or political dispensation. The Court then laid down the law in the following words: The provisions of the sections [including Section 505 of the IPC] read as a whole, along with the explanations, make it reasonably clear that the sections aim at rendering penal only such activities as would be intended, or have a tendency, to create dis­order or disturbance of public peace by resort to violence… It is only when the words, written or spoken, etc, which have the pernicious tendency or intention of creating public disorder or disturbance of law and order that the law steps in to prevent such activities in the interest of public order. Note that the key words are “against the state,” “violence,” and “public order.” Without them, the offence of sedition does not take place. In this background of the abuse of the law and dozens of questionable complaints against thousands of our citizens, some public-spirited individuals challenged the constitutional validity of Section 124A of the IPC. The Supreme Court order of 11 May 2022 in this batch of petitions needs to be considered in this context. A few questions arise. Was the government serious about re-examining and reconsidering the provisions of Section 124A or was it simply buying time to take the fight to another day? If it was serious, it would have come forward and put all pending cases on hold with an assurance to review them and weed out those that were clearly make-believe. The government was also ambiguous in stating that re-examination and reconsideration would be by the Competent Forum, namely the Parliament. Does it mean no prior consultation with the Ministry of Law and Justice or the Ministry of Home Affairs was undertaken? With its overwhelming majority in Parliament, does the government seriously believe its views would ever be rejected? The government does not appear to have been fair to the citizens or the Court and effectively forced its hand to pass an order virtually staying the operation of Section 124A. The Court unfortunately overlooked the collateral damage caused to undertrials. An environmental activist, for instance, applied for a passport to attend COP26. Their application remained under consideration at least till the event was over. Similarly, youth who wish to travel abroad for studies or employment will not be issued a passport. The unemployed in India will not be able to apply for government jobs and even private employers would be wary of providing employment to an alleged seditionist, lest they are targeted for conspiracy. The collateral damage is clear and present and should have been addressed by the Court. The order is historic, yes, but incomplete. Finally, there is a huge similarity between the provisions of the Unlawful Activities (Prevention) Act (UAPA) and sedition. Hopefully, the reconsideration will not prompt the government to repeal sedition and instead invoke the UAPA—a case of jumping from the frying pan into the fire. The Supreme Court needs to tread cautiously.