Holding Sedition Law unconstitutional is not enough: Section 124A

After bail in Sedition case!
Sedition Case: Narwal, Kalita and Tanha outside Tihar Jail after Delhi High Court granted them bail.

A few months back, most of the national newspapers and twitter-feeds were filled with ‘positivity and praises of the Apex Court’ after the comments passed by the Hon’ble Supreme Court (CJI Ramana, Bopanna, and Roy JJ) in a hearing in which the colonial-era sedition law (section 124A of the Indian Penal Code) was under challenge. The bench of three judges expressed concerns about the ‘misuse’ and ‘lack of accountability of the executives’ under the law. The Court also questioned Attorney General KK Venugopal and asked him (as reported by the Indian Express), “It’s a colonial law. It was meant to suppress the freedom movement. The same law was used by the British to silence Mahatma Gandhi, Tilak, etc. Still, is it necessary after 75 years of independence?” 

The legal challenges before the Court

The petition before the Court challenges the constitutional vires of the law. The petitioner argues that the law creates a chilling effect on free speech and expression and poses an unreasonable restriction on Article 19(1)(a). It must be remembered that Article 19(2), which poses ‘reasonable restrictions’ on free speech and expression, has ‘sedition’ as one of the reasonable restrictions under it. There is another petition by Arun Shourie in which he has challenged the colonial-era law and argued that the “presumption of Constitutionality doesn’t apply to pre-constitutional law.” 

The law of sedition has indeed been used since its inception in the IPC, by way of amendment in 1870, as a political tool- to create a chilling effect on free speech and expressions. Until the British Raj, the country’s citizens were viewed as ‘subjects’ of the Crown where the whole population needs to obey the ‘sovereign crown’, and there was no constitutional guarantee of free speech and expression. But after the independence, the citizens were not ‘subjects’ anymore; now, they choose their government and can change their government. Most importantly, there exists a right to free speech and expression under Article 19(1)(a), on which the state can impose a reasonable restriction through an existing law (like section 124A) on the ground of sedition. As per the IPC, section 124A, which defines sedition, uses vague and broad words like ‘hatred’, ‘contempt’, and ‘disaffection’. Several decisions of the pre-independence era courts tried to define the term sedition (see the case of Bal Gangadhar Tilak). But it must be noted that the word ‘sedition’ was dropped from the draft of the Constitution of India (under Article 19(2)). Unfortunately, it was added back by the first amendment to the Constitution (which has been discussed by the author in some other post here). 

In the case of Kedar Nath Singh v. State of Bihar (1962), the Supreme Court of India held that the Sedition law is constitutionally valid and limited the application of the law to ‘acts involving intention or tendency to create disorder or disturbance of law and order or incitement to violence.’ It must be remembered that this reading down of the law (which is challenged in Shourie’s petition) is never followed by the police or the authorities. Students of national universities are charged with sedition for criticising and raising slogans against the government. Criticism of the government is classified as seditious and anti-national. 

As of now, the sedition has not been held to be unconstitutional by the Courts, and the ‘celebration’ and ‘discussion’ have already started even when there is no order/judgment against Section 124A- they were just comments passed by the Court. 

And we must not forget, the evil in the house is not just the sedition law. It is something else. 

National Security laws, Human Liberty and Free Speech

Even if the sedition law is held to be unconstitutional by the Supreme Court of India (and it should be as such laws cannot exist in a constitutional democracy which has guaranteed a fundamental right to speech to its citizen), the problem of ‘chilling down’ free speech will not erode automatically. Firstly, there needs to be proper implementation of the ruling of unconstitutionality – we have seen in the past how section 66A of the Information Technology Act is still used against the accused even after it was held to be unconstitutional in the Shreya Singhal case. A recent report by Apar Gupta and Abhinav Sekhri revealed that between March 2015 and September 2018, 21 cases were filed under Section 66A. It is pertinent to note that Section 66A was held unconstitutional in 2015. It is now a ‘zombie law’ as the authors call it, taking away people’s freedoms and putting them in jails. Similarly, it would be interesting to see how the Supreme Court will ensure that the judgment holding ‘section 124A unconstitutional’ is implemented and that no case is filed under the said section after the ruling. 

The most critical concern is that of laws like the Unlawful Activities Prevention Act, 1967 (‘UAPA’) and National Security Act, 1980 (‘NSA’), which are used more often than the sedition law to curb free speech and expression and put fellow citizens behind jails for a long time. There are tons of cases that are pending in the Courts, and the accused are languishing in the prisons- their whole life is destroyed as they remain in jails for 10-20 years. It is a more pertinent threat to free speech and personal liberty. 

The ‘Practical-aspects’ of UAPA

According to the Prison Statistics India report of 2018, around 5,102 UAPA cases were pending investigation and trial. Under the draconian provisions of the UAPA, the bail cannot be granted because of Section 43D. Section 43D(5) states that an accused shall not be released on bail if the Court, after going through the case diary and other information provided by the police, believes that there are reasonable grounds for believing that the accusation against the accused is prima facie true. Under UAPA, after the 2019 amendment, individuals and organisations can be termed as ‘terrorists’, and it gives enormous powers to the NIA. The Supreme Court has also done its bits in increasing the power of the executive and strengthening of the law through its judgment in the NIA v. Zahoor Ahmad Shah Watali (2019), wherein the Apex Court held that “the courts have to rely solely on the words of the investigating agency and see whether the allegations fit the offences.” The Investigative Agency can say anything, and the Courts will have to rely on their word. Hence, there is a presumption of guilt, not innocence – as opposed to the general principles of criminal law. The punishment of the accused starts from the time an FIR is filed against them under this draconian law. In the words of Nabeela Jamil, “the prolonged detentions, with accusations by the investigation agency under UAPA and through Watali’s interpretation, turns out to be convictions without trial and bails.” 

Although there is hope through the case of Union of India v. KA Najeeb, the Apex Court granted bail to the accused, who was languishing in jail for years without even a charge-sheet against him. The Court in Najeeb’s case distinguished from the case of Watali and observed that Section 43D(5) “does not oust the ability of Constitutional Courts to grant bail on the grounds of violation of Part III of the Constitution.” The Court relied on the right to a speedy trial as a guaranteed right under Article 21 and held that draconian provisions could not be used to rot people in jails. But the case of Watali, which strengthened the provisions of UAPA, still holds ground! 

Conclusion

A hearing of a petition constitutionally challenging sedition presents a ray of hope. Still, it cannot be denied that there are many draconian laws in the country, of which UAPA is just an example, which is used daily-basis to curb free speech and, most importantly, personal liberty. Along with holding section 124A unconstitutional, the courts must also read down the UAPA as done by the Delhi High Court in Natasha Narwal, Asif Tanha, and Kalita’s case. Let the ambit of National Security laws be narrowly defined and used only for the nation’s sovereignty, integrity, and security, not for punishing citizens for criticising the governments. 

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