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‘Criticism of govt not sedition’: What Kedar Nath ruling that SC quoted in Vinod Dua case says

The Supreme Court referred to the 1962 Kedar Nath judgment while quashing journalist Vinod Dua’s sedition case, saying journalists are 'entitled to protection’ under it.

Activists protests against sedition law
File image of activists displaying placards during a protest in New Delhi | Photo: Kamal Kishore | PTI

New Delhi: While quashing the sedition case against veteran journalist Vinod Dua, the Supreme Court Thursday said that every journalist is entitled to protection under the provisions of the landmark Kedar Nath judgment.

The case against Dua was registered in May last year, in Himachal Pradesh’s Shimla. The journalist was charged for making statements against the Narendra Modi government’s handling of the Covid-19 pandemic, particularly the nationwide lockdown that propelled thousands of migrant workers to walk back to their home states.

According to the complainant, a BJP leader, Dua’s statements could have incited communal dissonance and disrupted harmony.

However, a bench led by Justice U.U. Lalit quashed the case and the 1962 Kedar Nath ruling was cited significantly in the judgment.

This six-decade-old judgment had declared that Section 124A of the Indian Penal Code (IPC) — the colonial-era law on sedition — was constitutionally valid. However, it significantly clarified that “dissent is not sedition”.

While, in the past, many courts have cited the Kedar Nath verdict to give relief to those facing sedition charges, there has still been a steady rise in sedition cases in India.

According to legal experts, the problem lies in the implementation of the law laid down by the Supreme Court.

Last week, a two-judge bench led by Justice D.Y. Chandrachud noticed this growing trend of misuse of the law and decided to examine its interpretation in the context of the media’s right to free speech.

This move came a month after the SC issued notice on a petition challenging Section 124A’s constitutional validity.

With these ongoing developments, ThePrint takes a closer look at the Kedar Nath judgment, what it entailed, and the possibility of it being revisited.

Also read: India is now only ‘partly free’ — Freedom in the World report downgrades status

Sedition law under IPC

The sedition law in India can be traced all the way back to the 1800s, when the colonial British rulers administered the country.

Originally part of Section 113 of the Draft Penal Code of 1837-39, which was codified by Englishman Thomas Macaulay, the provision on sedition was incorporated into the IPC in 1870 in Section 124A, a decade after the code was made operational.

Since then, Section 124A has gone through several changes in 1937, 1948 and 1950.

The IPC section defines sedition as any signs, visible representations, or words, spoken or written, that can cause “hatred or contempt, or excite or attempt to excite disaffection” towards the government.

Sedition is a non-bailable offence and the punishment under the law varies from imprisonment upto three years to a life term and fine. A person charged under this law cannot apply for a government job, they have to live without a passport and must present themselves in the court as and when required.

Kedar Nath case

In 1953, Kedar Nath Singh, a member of the Forward Communist Party in Bihar, approached the Supreme Court against a Bihar High Court judgment that had upheld his conviction under sections 124A (sedition) and 505(b) (public mischief) of the IPC. He was sentenced to one year in prison.

Singh was accused of using offensive terms against the officers of CID and the ruling Indian National Congress by terming them as “dogs” and “goondas (thugs)”, respectively.

In a speech, he had said that his party believed in the revolution, which “would engulf in its flames, the capitalists, zamindars and the Congress leaders of India” who would be reduced to ashes.

Since his appeal challenged the fundamentals of the law, the matter was heard by a five-judge bench.

Singh’s contention was that Section 124A was “inconsistent” with the Right to Free Speech and Expression, enshrined in Article 19 (1) (a) of the Constitution.

Also read: The books used as evidence for sedition charges against Sharjeel Imam, Akhil Gogoi & others

The judgment

In 1962, the Constitution Bench rejected Singh’s contentions, and upheld the validity of Section 124A IPC, noting that it fell within the contours of being a reasonable restriction on free speech under Article 19(2).

Such a restriction on free speech was “necessary for promoting and ensuring the safety and integrity of the country,” it held.

The court did not give the section a literal interpretation but took into consideration its historical background, its purpose and the mischief it sought to suppress.

But the court went on to affirm that the application of this section shall only be limited to acts involving an “intention” or “tendency to incite violence”.

“The provisions of the sections 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,” the court said.

The court added the section “strikes the correct balance between individual fundamental rights and the interest of public order”.

Criticism of govt within reasonable limits, consistent with free speech

However, while dealing with Singh’s statement, the court found it was not seditious and discharged him in the case.

It pointed to the explanations appended to the main body of the provision of sedition to hold that criticism of public “measures or comment on government action, however strongly worded, would be within reasonable limits and would be consistent with the fundamental right of freedom of speech and expression”.

Explaining further, the court added that “strong words used to express disapprobation of the measures of government with a view to their improvement or alteration by lawful means would not come within the section”.

In other words, the court noted that  “disloyalty to government established by law is not the same thing as commenting in strong terms upon the measures or acts of Government” if those acts are by lawful means and not intend to excite feelings of enmity and create public disorder by the use of violence.

The Kedar Nath judgment, therefore, became a landmark verdict on sedition and free speech.

Also read: Government is using sedition as an iron hand to curb free speech, says Justice M.B. Lokur

Guidelines for arrest by Bombay High Court

Another significant development in the sedition law was the 2015 Bombay High Court order that issued guidelines for the police while invoking the provisions of sedition.

In a PIL related to the arrest of cartoonist Aseem Trivedi, the Bombay HC asked the police to make an objective evaluation of the material to form an opinion on whether the words and actions of the accused cause disaffection, enmity and disloyalty to the government since they must incite violence or tend to create public disorder, according to the law.

Comments expressing disapproval or criticism of the government with a view to call for a change in government by lawful means shall not be covered as sedition, the HC had said.

The court also directed that a legal opinion be obtained in writing from a law officer of the district which gives reasons addressing these pre-conditions.

Kedar Nath judgment likely to be revisited by SC

Meanwhile, there has been a fresh challenge to the sedition law.

On 30 April, a three-judge bench led by Justice U.U. Lalit sought the Narendra Modi government’s response to a petition filed by two journalists from Manipur and Chattisgarh, challenging retention of Section 124A IPC.

Kishorechandra Wangkhemcha and Kanhaiya Lal Shukla are facing prosecution for posting certain comments and sharing cartoons on Facebook.

This was two months after another bench had refused to delve into the issue, saying it “could consider the matter if the aggrieved party was before them”.

The two have contended the provision is so widely interpreted and applied in a discretionary manner that people merely exercising their democratic rights have found themselves booked under sedition.

Furthermore, they noted that the law of sedition is a “colonial legacy.” And several countries, including the UK, have done away with it.

This development coupled with the top court’s decision to interpret the law on sedition in view of the media’s right to free speech and expression last week, the Kedar Nath judgment could be revisited by the top court.

Also read: 233 people slapped with sedition charge in 2014-18, govt tells in Rajya Sabha