Revisiting the Sedition Law

Accountability of the police, the prosecution and indeed the State is the need of the hour. They have nothing to lose and so they continue in their highhanded ways. If they are made accountable, the situation might be different. Today, the only loser is the citizen exercising her fundamental right, writes Justice Madan. B. Lokur (Retd), a former Supreme Court judge, who also served as the Chief Justice of Andhra Pradesh High Court and Gauhati High Court.

New Delhi: On 31st May, the case for quashing the First Information Report (FIR) for sedition against two Telugu language TV channels came up for hearing before the Supreme Court. According to the TV channels, media freedom was sought to be muzzled because of some critical reports against the State Government. However, according to the State Government a clear case of sedition was made out. The Supreme Court is reported to have observed that the time has come to “define the limits of sedition”.

What is sedition? This was settled in 1962 through a 5-judge decision of the Supreme Court in Kedar Nath Singh v. State of Bihar. It was implemented in letter and spirit, by the Supreme Court in 1995 in Balwant Singh v. State of Punjab and today in the case of Vinod Dua v. State of Himachal Pradesh. How many times should the law on sedition be interpreted?

The Constitution of India clearly states in Article 141 that the law declared by the Supreme Court shall be binding on all courts within the territory of India. Once the Supreme Court has interpreted the law, it is applicable to journalists, media houses and tweeters as well as all civil authorities, the police and the courts. A fresh interpretation is not required in every case, otherwise the process will become endless. The real issue is that some authorities fail to follow the law.

In theKedar Nath Singhcase it was held “A citizen has a right to say or write whatever he likes about the Government, or its measures, by way of criticism or comment, so long as he does not incite people to violence against the Government established by law or with the intention of creating public disorder.” It was explained as “It is only when the words, written or spoken, etc. which have the pernicious tendency or intention of creating public disorder or disturbance of law and order that the law steps and to prevent such activities in the interest of public order.” The Supreme Court limited the application of the law of sedition to involving the intention or tendency to create disorder, or disturbance of law and order, or incitement to violence. The law is clear and unambiguous.

Let’s apply the law to a journalist or a TV channel and see how difficult (or easy) it is. A report is filed disagreeing with or critical of a particular decision or policy of the Government of India. This is not sedition but somebody lodges a complaint with the police against the journalist or TV channel. The police officer is expected to know the law since ignorance of the law is no excuse. The officer should appreciate that the view expressed is not seditious but a different opinion. However, the officer decides to misunderstand and takes action on the complaint. Who will check the police officer in such a case?

If the judgement delivered by the Supreme Court in 1962 does not prevent a police officer from acting perversely, will a judgement delivered in 2021 prevent him from doing so? I doubt it. So, the police officer will act on the complaint and take steps to arrest the alleged offender. If the police officer is not restrained, he will get away with an unjustified act and deprive an innocent person of her liberty and fundamental right to freedom of speech. That is the unfortunate consequence of non-application of mind by the police officer.

Therefore, the only solution is that the police officer should be made accountable for his action. Unless that is done, abuse of the sedition law will continue, even if the Supreme Court interprets the law of sedition a dozen times.

What about the judiciary? When the alleged offender is produced before a judge on a frivolous charge of sedition, the judge must apply his or her mind to the facts of the case, consider the law and decline to pass a remand order. Unfortunately, this is not happening and, in many cases, there is little application of mind and the alleged offender is remanded either to police or judicial custody as a matter of routine. The judiciary is obliged to preserve and protect the fundamental right of liberty of a citizen. If a frivolous charge of sedition is made against a person, the judge concerned should ensure the liberty of that person is not taken away for the asking. If this simple exercise of applying the mind is taken by a judge, then the alleged offender will be set at liberty immediately. At some point of time, and if the occasion arises, the High Court may also set aside the complaint or the FIR, as has happened in the case of Vinod Dua.

Unfortunately, in some instances the judiciary has failed us on this count and dozens of students, journalists, cartoonists, politicians, dissenters and others have been kept in jail for several months. Merely repeating the views of the Supreme Court expressed more than 50 years ago is of no consequence if judges fail to apply their mind to the law and the case before them.

The National Crime Records Bureau records that the number of sedition cases filed is increasing every year. While the number may not appear too large, the fact is that thousands of persons from all walks of life are accused in these cases of sedition disrupting their fundamental right of freedom of speech and expression. Their future looks bleak with the courts taking years to decide but, in the meanwhile, many of them undergo imprisonment for several months when on a proper understanding of the law, the FIR should have been quashed.

Accountability of the police, the prosecution and indeed the State is the need of the hour. They have nothing to lose and so they continue in their highhanded ways. If they are made accountable, the situation might be different. Today, the only loser is the citizen exercising her fundamental right.