19 July 2021 10:12 AM GMT
Another petition has been filed before the Supreme Court challenging the constitutional validity of the offence of sedition as codified in Section 124A of the Indian Penal Code. This is the fifth such petition. The petition has been filed by two women journalists, Patricia Mukhim and Anuradha Bhasin, claiming that the use of sedition offence to intimidate, silence and punish...
Another petition has been filed before the Supreme Court challenging the constitutional validity of the offence of sedition as codified in Section 124A of the Indian Penal Code. This is the fifth such petition.
The petition has been filed by two women journalists, Patricia Mukhim and Anuradha Bhasin, claiming that the use of sedition offence to intimidate, silence and punish journalists, has continued unrestrained and the lived experience of the last six decades leads to an irresistible conclusion that unless the impugned provision is deleted from the IPC, it will continue to "haunt and hinder" the full realization of the right to free speech and the freedom of the press.
In this regard, it refers to the NCRB data which shows a steep rise in the cases of sedition, with a 160% rise from 2016 to 2019, simultaneously accompanied by an abysmally low conviction rate, which dropped to 3.3% in 2019.
The plea states that in view of the evolution of jurisprudence of the fundamental rights of citizens since 1970 till 2021, the impugned provision is liable to be struck down as being ultra vires Articles 14, 19 and 21 of the Constitution.
It refers to various Supreme Court judgments starting form RC Cooper v. Union of India (1970) 1 SCC 248, where a 11-Judges Bench had held that the real test of constitutionality lay not in the object of the legislation but in the "real impact" it has on the life of an individual.
The plea then refers to the case of KS Puttaswamy v. Union of India (2017) 10 SCC 1, where the test of manifest arbitration was applied.
Significantly, the provision was upheld by the Supreme Court in 1962 in the case of Kedar Nath Singh v. State of Bihar.
The instant plea points out that the said judgment upheld the constitutionality of Section 124A IPC when it was classified as a non cognizable offence, which is no longer valid law, as the offence of sedition is now a cognizable and non-bailable offence since 1973 under the Code of Criminal Procedure, and consequently its vires and impact on life and liberty needs fresh judicial scrutiny.
"That the three tier categorization of the punishment for the offence of sedition, ranging from life imprisonment to fine simpliciter, without any legislative guidance for sentencing, amounts to granting unbridled discretion to judges, which is hit by the doctrine of arbitrariness and violates Article 14," the plea states.
Furthermore, it is argued that constitutionality of sedition as a restriction on free speech does not meet the test of necessity and proportionality.
In this regard it is submitted that object of "public order" u/Article 19(2) can be achieved by less restrictive means than a provision which is so overbroad and casts a chilling effect on the exercise of the right to free speech and expression.
It is also stated that the issue of words like hatred, disaffection, disloyalty, etc. are incapable of precise construction, and are hit by the doctrine of vagueness and overbreadth, thereby falling foul of Article 14 of the Constitution.
Lastly, it is argued that an act is criminalized only when there is an element of harm caused by it. However, the impugned provision does not survive the test of 'harm principle' in so far as it criminalizes protected speech which does not have a proximate relationship with incitement to violence or public disorder, but may be interpreted to have 53 a "tendency" to incite public disorder, penalizes conduct which although may not be approved by society, causes no harm".
The Petition has been settled by Advocate Vrinda Grover and drafted by Soutik Banerjee.
The petition is filed through Advocate Aakarsh Kamra.
Significantly, CJI NV Ramana has also expressed alarm at the rampant misuse of the provision and expressed reservation at continuing its use.
Is It Still Necessary To Continue Sedition Law, Which Was Used By British To Suppress Our Freedom Movement, Even After 75 Yrs Of Independence: CJI Ramana To Centre
The remarks were made while hearing a petition moved by Army veteran Major-General SG Vombatkere (Retired) challenging the constitutionality of the offence of sedition under Section 124A of IPC for being 'vague' and creating a 'chilling effect on free speech'.
A Bench headed by Justice UU Lalit is also hearing a plea, as well as Intervention Applications, challenging the constitutional validity of Section 12 4A of the IPC. On 30 April, the Court had issued notice in the plea filed by two journalists working in the States of Manipur and Chhattisgarh.
On 12 July, the Court had sought the response of the AG in the case, and had adjourned the matter to July 27. Two weeks have been granted to the Respondents to file their responses.
Former Union Minister Arun Shourie has also moved the Top Court stating that the Doctrine of Presumption of Constitutionality applied in the Kedar Nath judgment is no longer relevant since the case of Navtej Singh Johar v. Union of India and thus, the matter requires re-consideration.
Meanwhile, People's Union for Civil Liberties and former Union Minister Arun Shourie have also challenged Section 124-A.