A plea has been filed before the Supreme Court urging it to declare the law against Sedition under section 124-A of the Indian Penal Code as ultra-vires the Constitution of India. The plea states that a colonial provision like section 124A which was intended to subjugate the subjects of British crown should not be permitted to continue in a democratic republic, under the continuously expanding scope of the fundamental rights.
The petitioners, Advocates Aditya Ranjan, Varun Thakur and V. Elenchezhiyan, have filed the plea being aggrieved by the increased chilling effect of blatant misuse of section 124-A of IPC on the constitutional democracy and on the fundamental rights and under Article 19(1)(a) and Article 21. They are also aggrieved by the indiscriminate and unlawful use of the Sedition law against Journalists, women, children, students and other persons in clear defiance of the interpretation given by the Apex Court of India.
The plea filed through Advocate Sanjay Kumar Pathak has stated that while democratic principles have evolved, section 124-A of IPC which is a relic of the colonial era is still stifling the freedom of speech and expression in India and threatening the life and liberty of citizens of India if they choose to express dissent against policies of the Governments in power.
According to the petition, the continuance of a draconian colonial provision like section 124-A in the penal code without corresponding safeguards as provided under the UAPA is unreasonable and unwarranted. The law doesn't lay down and institutional responsibility on the Police in case of misuse of its misuse and no procedural safeguards are available under the code of Criminal Procedure unlike UAPA. Therefore, section 124-A needs to be examined under the changed facts and circumstances and also on the anvil of ever-evolving tests of necessity, proportionality and arbitrariness.
The plea has cited the Supreme Court's observations in the case of Balwant Singh v. State of Punj ab (1995) where Court had clarified that merely shouting slogans, in this case "Khalistan Zindabad", does not amount to sedition.
The top Court in the case of Common Cause v. Union of India, (2016) had directed that : " We are of the considered opinion that the authorities while dealing with the offences under Section 124-A of the Penal Code, 1860 shall be guided by the principles laid down by the Constitution Bench in Kedar Nath Singhv.State of Bihar"
Citing the Apex Court's order in case of Shreya Singhal Vs. UOI (2015) where it had held that a speech should be considered as a whole in a free, fair and liberal spirit, the plea states that the police across the country is picking a part of the speech or expression to invoke section 124-A against the citizens, that too, without examining the proximate and direct nexus of the act.
" Mere slapping of charge of sedition against a citizen endangers the right to live with dignity of the person and his family members forever. The media portrays the person charged as "Deshdrohi" whereas the seditious activities are imputed against the Government and in Hindi it may translate into "Rajdroh" (anti- government) which is not the same as "Deshdroh". It causes chilling effect on other citizens and prevents them from exercising their fundamental right to criticize the Government and its policies through legitimate means. " - the plea reads.
According to the petitioners, the Right to question, criticise and change the public representatives and the Government from time to time without resorting to violence is very fundamental to the idea of democracy. But the Sedition law under section 124-A IPC is a constant threat to the fundamental rights of millions including the petitioners.
The plea has alternatively sought directions to the Government to instruct their respective Heads of Police and D.G.Ps to ensure that the law as set forth by the Supreme Court in the Kedar Nath case and Balwant Singh case, including the following observations, are strictly followed:
- Written or spoken words, etc., which have implicit in them the idea of subverting Government by violent means alone have been made penal by section 124A IPC.
- The police should act with greater sensitivity and refrain from arresting citizens merely for raising stray slogans without creating any adverse law and order situation.
- Raising of some slogans, without anything more cannot constitute any threat to the Government of India as by law established nor can the same give rise to feelings of enmity or hatred among different communities or religious or other groups.
- Any speech should be considered as a whole in a free, fair and liberal spirit.
The petition has been drawn and filed by Advocate Sanjay Kumar Pathak