New Delhi: A retired major general of the army, a former BJP minister, an opposition Lok Sabha MP, a body representing senior editors, and several journalists are among the petitioners challenging the constitutional validity of India’s colonial-era sedition law in the Supreme Court.
Acting on this batch of petitions, the top court Wednesday asked states and the Centre to refrain from registering new cases, undertaking fresh probes, or taking coercive action under the sedition law — Section 124A of the Indian Penal Code (IPC) — until the central government finishes re-examining its provisions.
Section 124A provides for imprisonment or a fine, or both, for those found guilty of trying to incite “hatred”, “contempt”, or “disaffection” towards the government, including by “words, either written or spoken”.
The batch of petitions collectively raise a number of questions about whether this law infringes on various constitutional rights, including the Right to Freedom of Expression, the Right to Equality, and the Right to Life and Personal Liberty.
A common thread running through the petitions is their contention that a 1962 Supreme Court verdict — Kedar Nath Singh vs State Of Bihar — that upheld the validity of the colonial law is no longer a good legal principle.
ThePrint takes a look at the petitioners and what their pleas in the apex court demand.
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Kishorechandra Wangkhemcha and Kanhaiya Lal Shukla
The Supreme Court bench led by Chief Justice of India (CJI) N.V. Ramana agreed to examine the constitutional validity of the sedition law based on a petition filed by journalists Kishorechandra Wangkhemcha from Manipur and Kanhaiya Lal Shukla from Chhattisgarh.
The court issued a notice to the Centre on 30 April last year, seeking its response to the petition from the journalists, both of whom have been booked and jailed on sedition charges for posts and cartoons published on social media platforms.
Both have contended that Section 124A infringes upon an individual’s Right to Freedom of Speech and Expression, and does not fall under the “reasonable restrictions” to the Right to Free Speech as outlined in Article 19.
Wangkhemcha has had three FIRs filed against him under Section 124A for his critical comments against the government of Manipur and various state leaders. Shukla had sedition charges slapped against him for posting cartoons on Facebook that depicted fake encounters by the police.
Three intervention applications were filed in support of this duo. The interveners want to be heard without becoming parties in the matter themselves.
The first intervention, filed by senior journalist Sashi Kumar, claims there has been a dramatic jump in sedition cases since 2016. In 2019, 93 cases were registered as compared to 35 in 2016. This is a jump of 165 per cent, the application has stated. Of these 93 cases, chargesheets were filed in a mere 17 per cent cases, while conviction was as low as 3.3 per cent, he has told the court.
The second intervener, law professor Dr Sanjay Jain, has given an overview of sedition laws in other countries to help the court analyse the law contemporarily.
The third intervener, Foundation for Media Professionals, has advanced similar arguments in its application.
Shreya Broadcasting and Aamoda Broadcasting Company
Shreya and Aamoda, both of which are private media houses from Andhra Pradesh, approached the Supreme Court in May 2021 against the state government’s move to invoke sedition charges against them for broadcasting anti-establishment statements made by Lok Sabha member R.K. Raju.
Both media companies argued that the FIR against them violated the Right to Free Speech and that the sedition cases were an attempt to prevent the media from covering issues of public importance.
Right to dissent is part of Article 19 (free speech) and essential for survival of democracy, the two media houses have argued.
While these petitioners did not question the constitutional validity of Section 124A, their petitions were still referred to the CJI’s bench for consideration since the contents raised concerns over the misuse of the law.
“It is time we define the limits of sedition,” a bench led by Justice D.Y. Chandrachud had observed while hearing the petitions and granting protection to the petitioners from arrests.
Maj. Gen. Vombatkere
A retired Major General of the Indian Army, S.G. Vombatkere, petitioned the Supreme Court in July last year, contending that the statute criminalising expression “based on unconstitutionally vague definitions of disaffection towards government is an unreasonable restriction”.
He wants Section 124A to be declared as “void and inoperative” and for being ultra vires of three fundamental rights — Article 19 (1) (a) (free speech), Article 14 (equality) and Article 21 (liberty). He further wants the court to issue a mandamus or direction to close all criminal proceedings related to Section 124A.
A bench led by CJI Ramana agreed to examine the former army officer’s petition, and sought Attorney General K.K. Venugopal’s presence to assist the bench in the matter. The CJI had then remarked there was no reason to doubt the credentials of the petitioner, who as an army officer, had offered his services to the nation.
It was during the hearing of this petition that the CJI also flagged the misuse of the sedition law and asked the Centre as to why it was not repealing the provision used by the British to silence India’s freedom fighters, including Mahatma Gandhi.
Editors Guild of India
The Editors Guild of India’s petition highlights the increasing misuse of Section 124A to intimidate journalists.
It wants a judicial declaration to hold the law as unconstitutional and violative of Articles 14, 19 and 21. Freedom of the press is a facet of the fundamental right to free speech protected under Article 19 (1)(a), the Guild has contended, alleging that members of the press are facing FIRs under the sedition law for doing their duty.
The Guild has also asked the court to declare complaints alleging sedition charges against a member of the press as an exceptional category of cases, one that would require a preliminary enquiry as long as the action falls within their course of duty.
Editors Guild of India is extremely pleased that in response to the petition filed by the Guild challenging the sedition law (IPC 124A), the Hon'ble Supreme Court of India has passed an interim order to keep the law in abeyance, until the Union Govt reconsiders it.#SeditionLaw pic.twitter.com/KmbleiyITl
— Editors Guild of India (@IndEditorsGuild) May 11, 2022
Arun Shourie and Common Cause
Veteran journalist and former Union minister Arun Shourie as well the NGO Common Cause as have denounced the 1962 Kedar Nath Singh ruling that upheld the constitutionality of the sedition law.
These petitioners have argued that the judgment read words into the section, which was formulated with an intent to suppress dissent.
The petitioners have further said that presumption of constitutionality does not apply to pre-constitutional laws — i.e. those dating to the British era — as those would have been made by a foreign legislature or body.
The five-judge bench could not have read down the law in the absence of presumption of constitutionality. Further, the interpretation of the section in the Kedar Nath Singh ruling casts a wide net on freedom of speech and expression.
“The section must be declared to be unconstitutional on the basis of its plain and unambiguous meaning especially when the legislative intent was to suppress dissent,” the joint petition filed by Shourie and Common Cause has submitted.
People’s Union for Civil Liberties
The petition filed by the human rights body People’s Union for Civil Liberties (PUCL) claims that sedition was a political crime and added to the penal code to prevent “political uprisings against the Crown and to control the British colonies”.
However, in Independent India, laws of such “repressive” character have no place, it has contended.
Words such as “disaffection, disloyalty and disapprobation” used to define the section are vague, making the provision void, it has noted.
Anil Chamadia
Journalist Anil Chamadia, editor of the monthly journals Mass Media and Jan Media, traced the history of sedition in his petition urging the court to strike down the law.
According to Chamadia, when the SC upheld the validity of Section 124A in 1962, the offence was non-cognisable, meaning a judicial officer was required for making an arrest. In 1973, this procedural safeguard was taken away by making the offence cognisable.
Even though a subsequent ruling in 2016 reiterated the safeguards enumerated in the Kedar Nath Singh judgment, the reality is that the section continues to be misused, Chamadia has asserted. This, he further argued, is because of the vague terminology that the provision is couched in, rendering Section 124A as a tool to stifle free speech.
Patricia Mukhim and Anuradha Bhasin
Editors Mukhim from Meghalaya and Bhasin from Jammu and Kashmir have urged the top court to declare Section 124A invalid and also quash all pending trials, proceedings, and investigations pertaining to it.
In their plea, they have contended that the offence of sedition is an “oppressive legal device, inherently susceptible and amenable to being deployed to curb free speech, freedom of the press, criticism, dissent and to punish critical voices in a democracy”.
Section 124A is part of an “arsenal of laws commissioned by the colonial rulers to police the minds and penalise Indians”, and used to criminalise free speech and journalism, they have submitted.
They argue that the words used in Section 124A “are incapable of being defined with sufficient definiteness, and thus it suffers from the incurable vice of vagueness and overbreadth”.
Mahua Moitra
Trinamool Congress MP Mahua Moitra, has been one of the most vocal petitioners in the case.
In her petition, she argued that, historically, the sedition law was merely “a tool to preserve the interests of monarchies” and was used against those who opposed “an undemocratic form of government”. Therefore, her petition posited, section 124A “has no place in a liberal democracy”.
Moitra’s petition, too, mentioned the 1962 Kedar Nath case, noting that though it read down the provisions of the law that made merely exciting ‘disaffection’ as sufficient for its invocation, 124A still remained “open to abuse and misuse”. Her petition also noted that England, the “birthplace” of the law, had already abolished it.
Moitra tweeted “Victory!” after the Supreme Court’s Wednesday order, and also shared a document describing the “effect of abeyance” of the sedition law.
Victory!
Supreme Court stays Sec 124A- no new cases can be filed, existing cases can apply for bail & release immediately.
Thank you to my lawyer Sr. Advocate Gopal Sankaranarayan for his 1 pager which swung the day! pic.twitter.com/8rp9Ztomnm
— Mahua Moitra (@MahuaMoitra) May 11, 2022
(Edited by Asavari Singh)
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