By not striking against sedition, Supreme Court let itself down

After criminal defamation, sedition is fast emerging as an instrument of intimidation.

In May 2016, the Supreme Court (justices Dipak Misra and Pant) refused to decriminalise defamation in a judgment full of linguistic excesses and judicial faults.

So, now the powerful can use criminal defamation to oppress whom they do not like. The judgment belied the promise to discipline its use.

Justices Misra and Lalit got an excellent opportunity to lay down guidelines in respect of an increasing use of sedition. But they did not rise to the challenge.

Dissent

Advocate Prashant Bhushan filed a case for Common Cause, and importantly, Dr SP Udayakumar, an antinuclear activist who has been charged with sedition.

Bhushan's written submission said, "Successive governments have blatantly used Section 124A (sedition) to stifle the voice of dissent and to further their political goals".

As proof he pointed to the figures of 2014, displaying 47 sedition cases and 58 arrests in 2014; and referred to cases against Aseem Trivedi (Cartoonist 2012), Binayak Sen (2007), Uday Kumar (2011), folk singer S Kovan for singing songs against CM Jayalalitha (2015), Anwar Sadhik of Kerala for Facebook comment (2016), Kanhaiya Kumar of JNU (2016), Geelani (2016).

To these, we may add Amnesty India (2016), Shashidhar Venugopal (2016), Mehdi Biswas for holding a pro-ISIS Twitter (2015), K Kavitha, daughter to a CM, for saying Kashmir and Hyderabad were annexed (2014), C Mahato to condole the death of activists in Bengal (2009) and Hardik Patel for leading a rally that went out of hand (2015).

Member of Parliament Ramya also had a case filed against her because she said "Pakistan was not hell". This was deemed as an "insult to India", provoking Indians and "appreciating Pakistan".

She has refused to apologise. I agree with her. Pakistan is a terrorist state, but many Pakistanis are wonderful people. Go there and find out.

Their hospitality overwhelms. If this is not enough, the 2015 figures on sedition cases are 30. More than 70 per cent cases are from Bihar and Jharkhand, followed by seven other states. The 22 cases filed in 2015 are at the trial stage.

The court, with scant attention to realities and history said: "(W)e are of the considered opinion that the authorities dealing with offences under section 124A… shall be guided by the principles laid down in Kedar's (case of 1962)".

What Bhushan had asked for sedition cases should not be commence without a "reasoned" order from a DGP or commission police and due examination whether the sedition act had a tendency to incite violence or public disorder.

A modest request. In the past, the Supreme Court has issued directions on arrest (DK Basu 1997), sexual harassment (Vishakha 1997) and other cases to deal with ground realities. I am hoping that the court may consider directions of search and seizures.

I go further to ask for the abolition of the law of sedition if it is without safeguards. At present, the only safeguard is eventual sanction for trial (not investigation) by the very government which prosecutes.

If the "process is the punishment", then investigation and trial are to be examined together.

Freedom

First, "sedition" was the bane of the freedom movement including the Kesari case, Pratod Swaroj, Karmayogin, Rangpura Mangoolewala, Barindra Ghosh, Sanyal, Tilak and other cases.

Second, the British had actually rejected sedition for the Indian Penal Code but finally inserted it in 1870.

Third, the Constituent Assembly had great misgivings about including sedition. It was not in the original Constitution's text but inserted in 1951 and therefore amenable to challenge now.

The original text used the words "undermines the security of, or tends to overthrow the State".

Fourth, in Kedar Nath (1962), the Court rejected the British interpretation and held that the offence of "sedition" was unconstitutional unless it was read down to be related to incitement of violence.

Fifth, clearly Kedar Nath is not being followed and the various States are acting unconstitutionally in using sedition for an all-purpose intimidation against those they do not like.

Constitution

So the question is: what needs to be done when the state is acting unconstitutionally? Simply exhorting the vindictive states not to act unconstitutionally is hardly the answer.

Bhushan's evidence was not examined. Constitutionally, justice Misra's defamation judgment laid down the test that if the Constitution makers included defamation, laws of defamation prevalent in 1950 were prima facie protected.

Well, "sedition" was not included in the 1950 Constitution, it came in as an amendment. In the defamation case, he also invoked a balance between defamation and reputation (as a privacy right) but got the balance wrong in considering the concept of "reasonableness" which is India's due process.

We now have defamation cases flying around. "Sedition" is not a "private offence", but an offence against the state which carries the punishment of imprisonment for life or imprisonment which "may extend to" three years, to which fine may be added.

The offence is cognisable (for police to act) and non-bailable (except by the courts). Binayak Sen was denied "bail" for years.

The Indian Constitution is guided by a concept of "reasonableness" especially against intimidation.

In 1962, the SC found the offence constitutionally suspect unless read down. The request for operational safeguards was in order.

Without these the sedition law is unconstitutional. The Supreme Court once again lost its moment in history.

(Courtesy of Mail Today.)

Also read - Criticising government is not seditious: Why SC's views matter