Strike Down Sedition Law & Offending Provisions Of UAPA To Ensure Citizens Can Breathe Freely : Justice Nariman Urges Supreme Court

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...

Strike Down Sedition Law & Offending Provisions Of UAPA To Ensure Citizens Can Breathe Freely : Justice Nariman Urges Supreme Court

Mehal Jain

"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"

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