By Prasanna S.
Justice Deepak Gupta, a sitting judge of the highest constitutional court of the land, recently gave a lecture titled ‘The Law of Sedition in India and Freedom of Expression.’ He noted that the provision in the Indian Penal Code providing punishment for seditious speech is misused more often than not, giving several examples from the recent past. We may be able to add a dozen more to that list, with some of the more recent examples including the former chief ministers of Karnataka Siddaramiah and Kumaraswamy (for protesting against I-T raids); over ten thousand Adivasis in Jharkhand; and Shehla Rashid (for tweeting out allegations of torture of Kashmiri youth by members of Indian armed/para-military forces in the aftermath of the abrogation of Article 370 in August).
In his lecture, Justice Gupta wondered whether the time is now ripe to have a relook at the law. Well, we must take the hint.
Article 19(1)(a) of the Constitution guarantees freedom of speech and expression, subject only to Article 19(2) which saves any law that imposes ‘reasonable restrictions’ on the limited grounds of interests of “the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offence.”
Section 124A of the Indian Penal Code defines sedition and makes every speech or expression that “brings or attempts to bring into hatred or contempt, or excites or attempts to excite disaffection towards the Government established by law in India” a criminal offence punishable with a maximum sentence of life imprisonment. It is classified as ‘cognisable’ – i.e. the investigation process (including the powers to arrest) can be triggered merely by filing an FIR, without a judicial authority having to take cognisance; and ‘non-bailable’ i.e. the accused cannot get bail as a matter of right, but is subject to the discretion of the sessions judge.
The illiberal sting in Section 124A is somewhat taken away by an explanation to the provision that clarifies that mere “disapprobation of the administrative or other action of the Government without exciting or attempting to excite hatred, contempt or disaffection, do not constitute an offence under this section,” and a long line of judicial decisions – with the most notable one being the five-judge constitutional bench decision of the Supreme Court in Kedarnath v. State of Bihar (1962). The apex court in Kedarnath read down Section 124A to mean that only those expressions that either intend to or have the tendency of causing violence are punishable under Section 124A.
Despite the reading down, the continued employment of the charge of sedition to silence dissent continued undeterred. This prompted the Supreme Court to reiterate the Kedarnath law in 2016, in Common Cause v. Union of India (order dt. 05.09.2016 in WP(Civil) 683/2016), directing all authorities to scrupulously follow the Kedarnath dictum. However, the Supreme Court has not had a chance to reopen the issue of the constitutionality of Section 124A since 1962.
There is good reason why a challenge to Section 124A may succeed should one be mounted today.
In Kedarnath (1962), the Court did not have the benefit of the jurisprudence of fundamental rights that were established by the 11-judge bench decision in R.C Cooper v. Union of India (1969) and later reaffirmed and strengthened in Indira Gandhi v. Raj Narain (5 Judges, 1975), Maneka Gandhi v. Union of India (7 Judges, 1978), I.R. Coelho v. State of Tamil Nadu (9J, 2007) and more recently in Puttaswamy v. Union of India (9J, 2017). Each of these decisions establishes that fundamental rights in the constitution are not to be read as isolated silos or as water-tight compartments, but are to be read as if the content of each fundamental right animates the other. They tell us that the entire chapter on fundamental rights must also be read ‘synoptically’ (See Indira Gandhi & I.R. Coelho). The Court in Kedarnath merely tested the intent of the provision under the exceptions to the freedom of speech under Article 19(2) of the Constitution; it did not, for instance, take into consideration the effect of the right to equality (Article 14) or due process (Article 21).
The conjoint reading of Articles 14, 19 and 21 (from Maneka Gandhi) has now evolved the jurisprudence of testing legislation curtailing fundamental rights on the anvil of substantive and procedural reasonableness, necessity and proportionality. The requirement of ‘necessity’ comes in part from India having ratified in the International Covenant of Civil and Political Rights in 1976, which requires speech-limiting state action to be backed by a law and to be necessary on the grounds of respect for rights and reputations of others, national security etc.. The Court in 1962 was not and could not have been alive to the consideration of international law and international conventions in interpreting India’s fundamental rights – a practice established only since Jolly Varghese v. Bank of Cochin, 1980.
All these developments have now led to our understanding of ‘necessity’ in the context of state action limiting fundamental freedoms as a burden placed on the state to establish that such a limiting measure is ‘necessary in a democratic society’ (as approved by Justice A.K. Sikri writing for himself and four others in Modern Dental College v. State of Madhya Pradesh, 2016).
A rough idea of ‘proportionality’ has informed the understanding of the ‘reasonableness’ of restrictions in Article 19 since Chintaman Rao v. State of M.P (1951). However, it is only very recently that the understanding that the burden lay on the state to show that any rights-limiting measure was the least restrictive of all available alternatives, as mandated by the necessity and proportionality provisions of the Indian Constitution (2J in Union of India v. Ganayutham, 1997 and more recently, Modern Dental, 2016).
The ‘Chilling effect’ on speech refers to the probability that state action may cause psychological barriers in the free exercise of the right to speech. The Court must consider the implications of that probability and the severity of the chilling effect on the validity of state action. Such an understanding of the chilling effect had not sufficiently developed in 1962 (Even in the US, the doctrine was established as late as 1967, starting with Justice Brennan’s dissenting opinion in Walker v. Birmingham. Indian judgments did not use that expression until the late 1980s).
The Court in Kedarnath also could not have examined Section 124A, shedding the presumption as to its constitutionality. It is only as recently as 2018 (in Navtej Johar v. Union of India), that the Court found that pre-constitutional legislation has no legal presumption of constitutionality. Incidentally, that was the case in which the Court re-examined the constitutionality of Section 377 of the Indian Penal Code, which, among other things, criminalized consensual same-sex acts, despite an earlier judgment having examined and upheld the provision.
Legal precedent demands that the Court inspect Section 124A with a more critical eye, keeping in mind that the State can only deny fundamental freedoms when there is a pressing need to do so. If there is a challenge to the provision today, the Court will have to keep in mind all of these developments – and some more! As then Chief Justice Yogesh Kumar Sabharwal pointed out, “The Constitution is a living document. The constitutional provisions have to be construed having regard to the march of time and the development of law” (I.R. Coelho). If we truly cherish the freedom of speech and expression, it is past time that the Court revisits the constitutionality of this British-era sedition law and determine if it has a place in India’s present democracy.
A shorter and earlier version of this article appeared in the Indian Express.