Friday, February 19, 2016

Sedition law should stay, but its interpretation must be specific and not wide-ranging as in British era | Soli J Sorabjee

No fundamental right in our Constitution is absolute. Freedom of speech and expression guaranteed by Article 19(1)(a) can be reasonably restricted on the grounds specified in Article 19(2). It is significant that during the debates in the Constituent Assembly the founding fathers, in view of their bitter experience of the application of the sedition law by the British colonial regime, deliberately omitted ‘sedition’ as one of the permissible grounds of restriction under Article 19(2) on freedom of speech and expression.
However sedition as a criminal offence remains in the IPC and provides for inter alia sentence of life imprisonment and fine upon conviction. Section 124A was challenged in the Supreme Court as violative of the fundamental rights of free speech guaranteed by Article 19 (1)(a) of the Constitution. The Federal Court of (British) India presided over by the distinguished Chief Justice, Maurice Gwyer, ruled that sedition law is not to be invoked “to minister to the wounded vanity of government … The acts or words complained of must either incite to disorder or must be such as to satisfy reasonable men that that is their intention or tendency”.
The Privy Council did not approve of the Federal Court judgment and placed a wide and literal interpretation of the section. According to the Privy Council any speech or writing which evinced disloyalty or ill feelings towards the government could be regarded as sedition and persons guilty of such acts could be prosecuted and punished for committing the offence of sedition. Our Supreme Court in its landmark decision in 1962, in Kedarnath versus state of Bihar, dissented from the view of the Privy Council and preferred the view of the Federal Court.
According to the Supreme Court, mere criticism of the government or comments on the administration, however vigorous or pungent or even ill-informed, does not constitute sedition. The Supreme Court limited the application of Section 124A (sedition) to acts involving intention or tendency to create disorder, or disturbance of law and order, or incitement to violence. Incitement to violence is the essential ingredient of the offence of sedition.
That is our law, that is how Section 124A was interpreted and upheld as constitutional by a Constitution Bench. Therefore the question whether certain speech or acts constitute sedito Afzal Guru by commission of acts against the government or advocate its overthrow by violent means. If, and i repeat if, a person has said Hindustan murdabad, that the state is tyrannical and it is better to do away with it, necessary to overthrow it, that would constitute sedition. But these facts have to be established in a court of law by following proper procedure.
It is not for lawyers or political workers to prejudge the issue. An accused cannot be denied his or her fundamental right to fair trial by assaulting him or her or their supporters or their lawyers, as that would militate against the rule of law and also disrupt administration of justice by regular courts of the land. These basic principles must be kept in mind in all cases. Mob rule and mob justice cannot be permitted however strongly one may dislike the accused and his alleged statements. If that happens the very basis of a civil society is undermined and there is no vibrant democracy prevalent in our country. In my view Section 124A ‘Sedition’ as interpreted by the Supreme Court is necessary. Its misuse is no ground for its deletion.
DISCLAIMER : Views expressed above are the author's own.

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