A Practical Solution to a Moral Quandary

Why the judgment of the Bombay High Court in the Aseem Trivedi PIL might provide the way forward on sedition

By Madhav Chandavarkar and Sambit Dash

Sedition is an extremely controversial law in any country as the need to preserve law and order must be balanced with protecting the freedom of expression. It is important to not over emphasise the protection of law and order aspect as the ability to openly criticise government policies is vital to the health of a democracy. This problem has a unique manifestation in India as the current offence of sedition was drafted in drastically different times. Section 124A was actually included in the Indian Penal Code, 1860 (IPC) by an amendment in 1898. Drafted by the incumbent British Government, the section was designed to suppress the increasingly vocal independence movement and was totally skewed away from protecting freedom of expression. After independence, the constitutionality of S. 124A was questioned before the Supreme Court of India (SC) in Kedar Nath Singh vs. State of Bihar, 1962. The Court upheld the constitutionality of S. 124A but limited its application to acts that were violent or called other people to violence. However, as Section 124A continues to be abused by the police and lower courts, it might be time to once again review the section. This can only be done by Parliament or by a bench of the Supreme Court that contains more than 5 judges, so Section 124A will continue to remain in effect. The judgment by the Bombay High Court in the Aseem Trivedi case might provide a practical solution to until the law can be revisited.

Aseem Trivedi is a political cartoonist who was arrested under S. 124A of the IPC and multiple other laws for publishing cartoons that aggressively criticised the government. His arrest was an extremely high profile one and being aware of his rights, Trivedi refused to pay bail until the charges of sedition were dropped. After reading reports of his arrest, Sanskar Marathe, a lawyer in Mumbai filed a PIL against the Government questioning the arrest under S. 124A. By the time the PIL had reached the Court, the Advocate General had already advised the police to drop the sedition charges. However, at the urging of Marathe, Section 124A was examined in detail in order to prevent it from being misused to curb the freedom of expression granted under Article 19 of the Constitution.

The High Court first examined the Kedar Nath Singh case wherein it was observed that “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 then delves into the other landmark cases that set out the scope of S. 124A; the judgment would be extremely informative for those people interested in the application of sedition in modern India.

The Court then went on to examine S. Rangarajan vs. P. Jagjivan Ram, where the Supreme Court considered Article 19 in the context of censorship under the Cinematograph Act. The Bombay High court quoted the following part of that judgment, which deals with the “reasonable”-ness of restrictions on the freedom of expression under Article 19(2):

Our commitment to freedom of expression demands that it cannot be suppressed unless the situations created by allowing the freedom are pressing and the community interest is endangered. The anticipated danger should not be remote, conjectural or farfetched. It should have proximate and direct nexus with the expression….In other words, the expression should be inseparably locked up with the action contemplated like the equivalent of a “spark in a powder keg”.

The fundamental freedom under Article 19(1)(a) can be reasonably restricted for the purposes mentioned in Article 19(2) and the restriction must be justified on the anvil of necessity and not the quicksand of convenience of expediency. Open criticism of Government policies and operations is not a ground for restricting expression. We must practice tolerance to the views of others. Intolerance is as much dangerous to democracy as to the person himself.

After reviewing these cases the High Court came to the conclusion that it was clear that S. 124A could not be invoked to penalise criticisms of government measures that were intended to improve or alter these measures by lawful means. Similarly, S. 124A could not be used to penalise comments, no matter how strongly worded, that express “disapprobation” of the government without inciting violence. It went on to state that though it did not find any wit, humour or sarcasm in Trivedi’s cartoons, he was perfectly entitled to publish them without prosecution under Article 19.

The Court eventually concluded by saying it did not feel the need to comment further as the Advocate General had submitted that it would issue guidelines for arrests under S. 124A to all police personnel via a circular. However, they do crucially include these guidelines in the judgment, thus granting them a greater weight under law. Police officers must now follow these guidelines when arresting people for sedition, and a failure to follow them will now be actionable; the officers will be liable for dereliction of duty. This is a crucial step in preventing the abuse of S. 124A; the Supreme Court has been consistent with the Kedar Nath Singh doctrine, but other wings of the government, especially the police, have not been as adherent. These guidelines serve as a more practical restriction of such deviations and could help prevent S. 124A from being abused.

For the purpose of clarity, the guidelines have been included below:

1. In view of the felt need to issue certain guidelines to be followed by Police while invoking Section 124A IPC, the following preconditions must be kept in mind whilst applying the same:

(i) The words, signs or representations must bring the Government (Central or State) into hatred or contempt or must cause or attempt to cause disaffection, enmity or disloyalty to the Government and the words/signs/representation must also be an incitement to violence or must be intended or tend to create public disorder or a reasonable apprehension of public disorder;

(ii) Words, signs or representations against politicians or public servants by themselves do not fall in this category unless the words/signs/representations show them as representative of the Government;

(iii) Comments expressing disapproval or criticism of the Government with a view to obtaining a change of government by lawful means without any of the above are not seditious under Section 124A;

(iv) Obscenity or vulgarity by itself should not be taken into account as a factor or consideration for deciding whether a case falls within the purview of Section 124A of IPC, for they are covered under other sections of law;

(v) A legal opinion in writing which gives reasons addressing the aforesaid must be obtained from Law Officer of the District followed within two weeks by a legal opinion in writing from Public Prosecutor of the State.

2.(i) All Unit Commanders are directed to follow above instructions scrupulously.

(ii) It must also be kept in mind that the instructions mentioned above are not exhaustive and other relevant factors depending from case to case may also be kept in mind while applying Section 124A of the IPC.

Madhav Chandavarkar is a Research Associate with Takshashila Institution and can be found on Twitter on his handle @MadChap88. The views expressed here are personal

Sambit Dash is an alumnus of Takshashila’s public policy course, the Graduate Certificate in Public Policy. He can be found on Twitter on his handle @sambit_dash

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