Justice Rohinton Nariman on Sunday called upon the Supreme Court to strike down the penal provision of sedition and the offending portions of the UAPA.
"I exhort the Supreme Court to not keep sending the case back to the government. Governments will come and go, and it is not the government's business to start amending or repealing laws. There is a live case before the Supreme Court and it is important that the court use its power to strike down section 124A and the offending provisions of the UAPA to ensure that the citizens can breathe more freely. Maybe then India will move from 142 out of 180 to much higher (in the RSF's 2021 World Press Freedom Index)", he said.
The former judge commented that the sedition law was "set up by a colonial master to suppress free speech in a colony" and "continues to be misused" today. In urging the Supreme Court to strike down the aforesaid laws, Justice Nariman stated, "After Shayara Bano, manifest arbitrariness is now a ground you can take- that a colonial law is being brought to oppress free citizens!"
The former Supreme Court judge was speaking at the event organised to commemorate the 109th Birth Anniversary of Late Viswanath Pasayat.
Remarking that while the Nobel Peace Prize was conferred on two journalists from the Philippines and Russia, India was at rank 142 despite being known as the world's largest democracy, the judge reflected that the cause for the same may have been India's "out-dated" colonial laws and other "repressive laws" which followed.
"England has matured as a democracy- While during the reign of Edward III, there was a Treason Act, it was recommended to be abolished in 1977 and the same was done! The US also had a Sedition Act of 1798 which expired. After World War 1, they had the Alien and Seditions Act of 1918, which came to be the subject of several US Supreme Court judgments- Justice Holmes canvassed the 'clear and present danger' test in Schenk's case- if one was to shout fire in a theatre, there would obviously be disruption and it must be stopped immediately, but if there was to be no trace of any illegal or untoward happening, free speech cannot be curbed!"
Citing Justice Holmes' dissent in Abram's case, Justice Nariman quoted, "...I think that we should be eternally vigilant against attempts to check the expression of opinions that we loathe and believe to be fraught with death, unless they so imminently threaten immediate interference with the lawful and pressing purposes of the law that an immediate check is required to save the country"
Observing that 'imminent lawless action' is the standard to be applied presently, which was established by the US Supreme Court in Brandenburg v. Ohio (1969), Justice Nariman asked, "Against this backdrop, how can section 124A still be continuing in this large democracy?"
He explained that while the section on sedition was initially present in the draft IPC, it had not found a place in the ultimate Code.
"It was re-discovered and incorporated in 1870 and that is how 124A came to be! They said that the section was missed by oversight. The punishment under 124A was huge- transportation for life and imprisonment for 3 years...the phraseology was also peculiar- 'attempts to incite disaffection to the government established by law', with only one exception"
Justice Nariman expounded the Bangobasi case- the first case where sedition law was invoked in British India for publications in a newspaper- articles which attacked the Age of Consent Act, 1891 (introduced to curb child-marriages) as being opposed to Hindu traditions and morality-
"In their defence, they said that child marriage was inherent in our society. But the English judge was not pleased and held the editor guilty under 124A for causing disaffection towards the government of the day! He said the section does not require you to have written the offending article, it is sufficient that you printed it- that is an attempt to incite disaffection. He said 'disorder' plays no part in sedition and it is enough if you say that the government should be brought down"
"Then came the first Bal Gangadhar Tilak case- he was charged with sedition for his writings in the Kesari and another vernacular publication. He had talked about the famine that had caused the plague and which had caused the collectors interfering with the rights of Indian citizens by entering their home at any time without warrant to see if plague was spreading. Again, it was held that the publications incited disaffection against the government and he was sentenced to 18 months' imprisonment", continued Justice Nariman.
"Then there was the Satara trial where the editor had spoken of wanting Swaraj. The editor was tried and sentenced with same reasoning...There was the case in Allahabad where a muslim daily had printed something saying that we want independence from the British and 124A was invoked. Even though an apology was advanced, the sentence of 18 months was imposed on the editor...then section 124A came to be amended to extend 'disaffection' to 'disloyalty' towards the government, an equally vague term", told the judge.
Justice Nariman discussed how Tilak was again tried for sedition in 1909 in respect of certain writings offering justification for the murder of two European women in a bomb-blast- "He had said that 'if you mistreat a cat, it is bound to pounce on the master sometime'. He had described the bomb as 'an amulet which a proud Indian wears around his neck to get rid of the rule which suffocates him'. He was sentenced to 6 years by the jury", said Justice Nariman.
"Thanks to the Jallianwala massacre, the Rowlatt Act and the Khilafat movement, Mahatma Gandhi initiated the Civil Disobedience movement. Although he had urged for non-violence and called off the movement whenever there was violence, he was charged with sedition. At his trial, he said that 'Affection cannot be manufactured or regulated by law. If one has no affection for a person or system, one should be free to give the fullest expression to his disaffection, so long as he does not contemplate, promote, or incite to violence. But the section under which Mr. Banker and I are charged is one under which mere promotion of disaffection is a crime…I have studied some of the cases tried under it (section 124A) and I know that some of the most loved of India's patriots have been convicted under it. I consider it a privilege, therefore, to be charged under that section'. He was sentenced to 6 years".
"Then there was Niharendu Dutt Majumdar case (1942) where the Federal Court ruled that in the absence of any public disorder, one cannot be charged with sedition for mere disaffection to the government of the day. This was subsequently overruled by the Privy Council", he continued.
As regards the Constitution, Justice Nariman discussed how 'sedition' was dropped from Article 19(2) after several backs-and-forths and consideration and re-consideration, and how finally 'public order' found a place in the clause which envisages "reasonable restrictions" on the freedom of expression. The retired judge spoke of how in the Kedar Nath case (1962), the Supreme Court opined that the penal provision of sedition would be attracted only if expression of disaffection is accompanied with an attempted incitement to violence or disorder. He mentioned Shreya Singhal (2015) judgment was on these same lines as regards restrictions on free speech- that freedom of expression only goes out if there is a reasonable apprehension as to incitement to offence or violence.
"Then there came the wars with China and Pakistan, which led to the draconian UAPA- there is no provision of anticipatory bail and there is the minimum sentence of imprisonment of 5 years which can go upto life! As regards bail, the prosecution only needs to show a prima facie case. This law should also be examined with sedition... 'Unlawful activity' is defined as any activity which is supposed to affect the security of the State or result in disaffection to India. So a distinction is made to the State- Indian as a concept, as a country- and the government of the day. Disaffection continues to be in the statute book".
"There is a chilling effect on free speech. If you are booking persons, including journalists, under these laws which come with large sentences and no anticipatory bail, people would not speak their mind", he said.