A three-judge Bench of Justices UU Lalit, Indira Banerjee and KM Joseph of the Supreme Court decided to examine the validity of Section 124A of the Indian Penal Code which criminalises sedition. The decision arose on a plea challenging the validity of the provision for violation of freedom of speech and expression filed by two journalists, Kishorechandra Wangkhemcha from Manipur and Kanhaiya Lal Shukla from Chhattisgarh .
The petition was filed through advocate Tanima Kishore.
Contentions in the Plea
The petitioners said they were charged with sedition for questioning the state governments and the Centre, and for comments and cartoons shared on social networking website Facebook..
They contended that the provision infringes upon the fundamental right of freedom of speech and expression, guaranteed under Article 19(1)(a) of the Constitution.
“The impugned section clearly infringes the fundamental right under Article 19(1)(a) of the Constitution of India which guarantees that “all citizens shall have the right to freedom of speech and expression”. Further, the restriction imposed by the section is an unreasonable one, and therefore does not constitute a permissible restriction in terms of Article 19(2) of the Constitution,”the petition said.
Alleging frequent misuse and misapplication of the law since 1962, they said that its “abuse” points to its vagueness and uncertainty, which, in turn, exerts a “chilling effect” on the democratic freedoms of individuals.
The plea said that sections of sedition have been repealed in comparative post-colonial democratic jurisdictions around the world where the offence has been condemned as undemocratic, undesirable and unnecessary.
Referring to the Supreme Court decision upholding its validity in the 1962 case of Kedar Nath Singh v. State of Bihar, the petitioner contended that while the court may have been correct in its finding nearly sixty decades ago, the law no longer passes constitutional muster today.
Major Arguments in the petition
No Neccessity of Section 124-A IPC
Section 124-A, was, at the time a necessary tool in crime control in 1962 as a means to prevent the public violence and public disorder that fell short of waging war against the state. But the same could not be followed in 2021.
Availability of Alternative legislations
Extensive enactment of new legislations like Unlawful Activities Act, the Public Safety Act and the National Security Actdealing directly with safety and security, public disorder and terrorism should be taken into consideration, the plea pointed out.
Such alternative legislation eliminates the need to employ Section 124-A to deal with public disorder and violence as various sections of the abovementioned Acts deal directly with the overt conduct that sedition seeks to make penal – inciting violence and public disorder , it was contended.
Consideration of “Prevailing conditions of the time“
“Prevailing conditions at the time” is involved in constitutional enquiry for consideration.
Three relevant circumstances were mentioned to substaintiate :
- India has now has obligations under International Law as it has ratified and is bound by the International Covenant on Civil and Political Rights (“ICCPR”), the petition stated. Article 19 of the ICCPR protects the freedom of expression as a right of all individuals in the world. Section 124-A as a restriction of freedom of expression falls short of the requirements provided under International law in that it is neither “necessary” nor sufficiently “provided by law”, it was submitted.
- Misuse, misapplication and abuse of Section 124-A since 1962 as the tendency and intention have been so widely interpreted and employed in such a discretionary manner that those merely exercising their democratic rights have faced penal sanction under the section,” the petitioners claimed.
- Repeal of sedition sections in comparative post-colonial democratic jurisdictions around the world. In this lieu the petition pointed out
“The United Kingdom, the author of sedition laws in India and globally, has recently repealed the offence of sedition in its own jurisdiction in 2009. New Zealand and Ghana have already passed legislation repealing sedition, while the Law Commissions of Canada, Ireland and Australia have recommended repeal to their respective parliaments. In both Uganda and Nigeria sedition has been declared unconstitutional”
In February, A bench headed by the then Chief Justice S A Bobde of the top court had rejected a plea urging it to re-examine the constitutional validity of the sedition law by a group of lawyers pointing out that the Supreme Court had in the past laid down that there should be an appropriate cause of action (materials to sue) to challenge a law, which the petition lacked.