The Supreme Court on Friday decided that it will examine the validity of Section 124A of the Indian Penal Code which criminalises sedition (Kishorechandra Wangkhemcha v. Union of India).
A three-judge Bench of Justices UU Lalit, Indira Banerjee and KM Joseph issued notice to the Central government on a plea by two journalists, Kishorechandra Wangkhemcha from Manipur and Kanhaiya Lal Shukla from Chhattisgarh challenging the validity of the provision for violation of freedom of speech and expression.
This comes less than 3 months after the top court had dismissed a similar plea by three lawyers challenging the provision.
Both Wangkhemcha and Shukla submitted that they were charged under Section 124A raising questions against their respective state governments as well as the Central Government.
FIRs were registered against them under Section 124A for comments and cartoons shared by them on the social networking website Facebook.
“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.
In this regard, the petitioners contended that though 1962 judgment of the top court in Kedar Nath Singh v. State of Bihar may have been correct in its finding nearly sixty years ago, Section 124A no longer passes constitutional C muster today.
In Kedra Nath, the Supreme Court had held that Section 124A is constitutional since it imposed a reasonable restriction on Article 19(1)(a), falling within the ambit of Article 19(2).
The petitioners advanced the following major arguments:
Section 124-A no more necessary
It was submitted that in 1962 there may have been a need to use Section 124A as a means to prevent the public violence and public disorder that fell short of waging war against the state. Section 124-A, was, at the time a necessary tool in crime control. But that is not the case in 2021.
Alternative, less intrusive legislations now available
The plea pointed out that there has been extensive enactment of new legislations dealing directly with safety and security, public disorder and terrorism. Such enactments include Unlawful Activities Act, the Public Safety Act and the National Security Act. Various sections of these Acts deal directly with the overt conduct that sedition seeks to make penal – inciting violence and public disorder, the petitioners submitted.
Such alternative legislation, therefore, eliminates the need to employ Section 124-A to deal with public disorder and violence, it was contended.
Prevailing conditions of the time
The constitutional enquiry involves the consideration of the “prevailing conditions at the time”. In this regard it was submitted that there are three relevant circumstances:
The first of these relevant considerations cited was that India now has obligations under International Law.
India 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.
The second relevant circumstance pointed out is the frequent phenomenon of misuse, misapplication and abuse of Section 124-A since 1962.
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.
While abuse of a law, in itself, does not bear on the validity of that law, this phenomenon clearly points to the vagueness and uncertainty of the current law, it was submitted.
The third relevant circumstance cited was the repeal of sedition sections in comparative post-colonial democratic jurisdictions around the world.
“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,” it was pointed out
Since the Kedar Nath judgment was rendered by a judge of five judges, any decision pronouncing on the validity of Section 124A can be decided only by a Bench of seven or more judges.