This article has been written by Huma Ansari, pursuing Diploma in Advanced Contract Drafting, Negotiation and Dispute Resolution, and edited by Oishika Banerji (Team Lawsikho).  

it has been published by Rachit Garg.

Introduction

SG Vombetkere, a retired army general, was one of the petitioners who had filed writ petitions before the Supreme Court of India challenging the constitutional validity of Section 124A of the Indian Penal Code, 1860 (IPC), that deals with the law of sedition. Other petitioners included the Editor Guild of India, TMC MP Mahua Moitra, former Union Minister Arun Shourie, Kishore Chandra Wangkemcha, etc. After the writ petitions were filed, the matter was first heard in July 2021. Later a notice was issued to the Central Government in April 2022.  On 7th May written submission was filed by the Solicitor General of India, Tushar Mehta. On 9th May, the affidavit was filed on behalf of the Union of India. The order to put the section in abeyance finally came on 11th May 2022. This article discusses the case of SG Vombatkere vs Union of India (2022) in the context of sedition law in India. 

What is the sedition law and why was it introduced

Sedition law is defined under Section 124A of IPC as “any person by words, either spoken or written, or by signs, or by visible representation, or otherwise, brings or attempts to bring into hatred or contempt, or excites or attempts to excite disaffection towards the government established by law in India”. Here ‘disaffection’ means disloyalty and feelings of enmity towards the government but shall exclude any comment or action that does not excite or attempts to excite hatred, contempt or disaffection among the common masses against the government. Sedition is considered to be a non-bailable offence, punishable with 3 years of imprisonment which can range up to lifetime, alongside prescribed fine.

Sedition law was drafted by British historian and politician Thomas Macaulay in 1837. In IPC it was inserted under Section 124A in 1870, 10 years after its enactment. Law scholars believe that this section was incorporated in IPC to combat the growing rebellion led by the Deobandi scholars to overthrow British rule from India. This rebellious movement was also known as the Wahabi Movement. Since then it has been used by all governments to suppress people who criticise government policies.

The law has been used by British administrators against Mahatma Gandhi, Lokmanya Tilak, Bhagat Singh, Maulana Azad, Annie Besant, and Jawaharlal Nehru for their speeches, writings and actions during the freedom struggle. Bal Gangadhar Tilak was charged with sedition twice, once in 1897 for his speech in Shivaji Park, Mumbai, which led to the killings of two British officials, and the other in 1908 when he was arrested for his seditious writings against the British in the Marathi newspaper “Kesari” Both times he was convicted by the Bombay High Court.

Why was the sedition law still in force even after Independence

While being a part of the Constituent Assembly, KM Munshi, Congress leader and educationist, strongly voiced his opinion that there should be some room for sedition in the Indian Constitution. Our Constitution makers understood that sedition law can leave an adverse effect on the freedom of speech and expression guaranteed by the Constitution as a fundamental right. He contended that now that India is a democratic state, following independence, criticism of the government is the essence of democracy.

1. Though sedition law was not incorporated in the Constitution, it continued to act as a criminal offence defined under Section 124A of IPC. This was done with the object to curb any such action that could disrupt security and order in a civil society.
2. Section 124A was needed to protect the lawfully elected democratic government.
3. It was also necessary to maintain this section considering the growing separatist movements that took place in the country after Independence. There was a need to instil a sense of fear in the minds of the common masses that contempt of government can cause severe punishment.

An insight to the case of SG Vombatkere vs Union of India (2022)

Our present discussed case is the product of the several precedents that have been the seed germinating as the sedition jurisprudence in India. The first post-independence case that had questioned the constitutionality of the sedition provision was Kedar Nath Singh v. State of Bihar (1962). Categorising that only those expressions that either intend to or have the tendency of causing violence are said to be punishable under Section 124-A of the IPC, the Apex Court had for that timing cleared the air surrounding the issue brought before it. With this judgement not being much reflective and influence-filled by nature, the Apex Court had to further issue a series of directions to all authorities as to how authorities should be dealing with cases under the sedition provision. This was done in the case of Common Cause v. Union of India (2018). The Allahabad High Court’s judgement in the case of Inayat Altaf Shekh v. State of U.P (2021) had expressed the misuse of sedition law on trivial issues in India such as  sloganeering between students in an India-Pakistan cricket match, which ipso facto wa detrimental for the unity of India. 

Our present discussed case is the outcome of such store-mentioned decisions and incidents that had been burning our nation for over several years now. To put a final end and bring in clarity in the application of the provisions, petitions challenging the validity of the provision were heard by a bench composed of N.V. Ramana, C.J., Surya Kant, J. and Hima Kohli, J.

An overview of the Supreme Court of India’s decision 

In an unprecedented order in S.G. Vombatkere v. Union of India (2022), the Supreme Court of India had stayed the operation of the debatable Section 124-A of the Penal Code, 1860. In a bunch of petitions that challenged the constitutionality of the provision, the Apex Court reached the decision to keep in abeyance all pending trials, appeals and proceedings in regards to Section 124-A. The top court had also put a restriction on any fresh registration of first information report (“FIR”) by the police, in case of otherwise, the aggrieved can seek relief by means of approaching the jurisdictional courts. The Apex Court made it clear that its orders are to be the rule of law until any further directions are passed on similar regards. 

On 11th May 2022, a much-awaited and much-needed order by the Supreme Court was passed. The three judges bench had passed the interim order and put matters under Section 124A in abeyance.

1. Para 4 of the order, talks about the affidavit submitted on behalf of the Union Government that contended that jurists, teachers or intellectuals may have a different opinion regarding sedition law, but they all unanimously believe that, there is a need for a statutory provision to deal with offences challenging the integrity and sovereignty of the government established by law. However, the misuse of such provisions is a matter of concern.
2. It further contends that even the Prime Minister favours the protection of civil liberties and human rights of the citizens. And also believes in shedding the colonial laws that have no place in today’s India. It has already discarded 1500 outdated laws.
3. It was also stated in the affidavit that Prime Minister Narendra Modi has also expressed views to safeguard civil liberties and human rights and that on the occasion of the 75th Azadi ka Mahotsav, there is no need to carry the burden of a law that was introduced by the Britishers.
4. Finally, the Government of India, to maintain and protect the integrity and sovereignty of India has decided to re-examine and re-consider the provision of Section 124A of IPC hence, the SC shall not apply its time in examining the constitutional validity of the aforesaid section.
5. As per para 5, the Union of India agrees with the Supreme Court that the harshness of the aforesaid section of IPC is not by the present state of affairs in India and it was a colonial law meant to suppress the discontent of the people of India.
6. Para 7 states that, until the re-examination of the provision is complete, Section 124A of IPC shall stand in Abeyance.

Directions issued by the Supreme Court of India with regards to Section 124A  

1. The very first direction is that the interim order shall remain in effect until further orders.
2. The Supreme Court has directed the Central and state governments to refrain from filing new FIR., continuing investigations or taking coercive measures under Section 124A as long as it is under reconsideration.
3. If any new case is registered for the offence of sedition then, the affected party can move to the court and seek relief. It has directed the subordinate courts to examine the relief sought on the grounds of the current order passed as well as the decision taken by the Union of India.
4. All the pending trials, appeals and proceedings related to Section 124A shall be kept in abeyance. Adjudication of other sections may be continued if it appears to the court that no prejudice shall be caused to the accused.
5. The Court has directed the Central Government to advise all the state governments as well as the Union territories also to refrain from filing new cases falling under Section 124A to prevent its misuse and misapplications.
6. These directions shall remain valid until further development in this matter.
7. While dictating the order, the then CJI of India stated that those already booked under Section 124A and are in detention cells can approach the concerned courts for relief.

Consequence of the Supreme Court’s decision 

In Aman Chopra vs the State of Rajasthan (2022), the Rajasthan High Court directed the state police to stop investigating charges levelled against him under Section 124A of IPC. The Court issued these directions on the very same day, the interim order was passed by SC of putting the aforesaid section into abeyance.

Conclusion

A free society is one in which individuals can freely express themselves without fear of retribution. This includes the right to hold opinions without interference and to seek, receive, and impart information and ideas through any media and regardless of the ruling power. Freedom of expression is a fundamental human right and is essential for the advancement and protection of human rights and democracy. It allows people to assert their right to freedom of assembly and association, and to protest against injustice and to freely participate in the cultural life of their community and to enjoy and create art. Freedom of expression is not absolute, and it may be subject to limitations, but these must be prescribed by law and be necessary and proportionate in a democratic society. Sedition law was definitely acting as a hurdle in the exercise of free speech. Being a non-bailable offence, it is not an easy task to deal with this black law. But, this order of the Supreme Court has provided great relief as it ensures a free exercise of speech and expression of course in good faith. This will restrict the ruling powers to refrain from using their powers arbitrarily against their citizens.

References 

1. https://www.scobserver.in/journal/sedition-in-india-a-timeline/.
2. https://www.barandbench.com/news/28-annual-rise-in-sedition-cases-during-modi-government-regime-article-14-database
3. https://www.scobserver.in/wp-content/uploads/2021/09/Sedition_WritPetition_SGVombatkere.pdf.
4. https://www.lawcafeindia.com/sedition-law-put-on-abeyance-by-supreme-court/

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