Fali S Nariman writes: The sedition law must go

,Sedition” is the vaguest of all offenses known to the criminal law. In colonial times, it was defined expansively in order to uphold the majesty of British power in India. With effect from 1870, (as amended in 1955), Section 124A of the Penal Code read: “Whoever by words, spoken or written, brings or attempts to bring into hatred or contempt, or excites or attempts to excite disaffection, towards the Government established by law in India shall be punished with imprisonment for life…” .

Prior to the advent of the Constitution of India 1950, there were in operation a catena of Court decisions on Section 124A; amongst them was Bal Gangadhar Tilak’s case (1897) [25 Indian Appeals 1]where the Privy Council declined to grant leave to appeal from an order of conviction and sentence by the High Court of Bombay, affirming that “disaffection” only meant “absence of affection in any degree towards the British rule or its administration or representatives”, and that exciting of mutiny or rebellion or actual disturbance of any sort was “absolutely immaterial”!

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With the establishment of a Federal Court by the Government of India Act, 1935, in Niharendu Dutt Majumdar And Ors. vs Emperor — an appeal from a conviction by courts in Calcutta — the Federal Court held that if the language of Section 124A were to be read literally “it would make a surprising number of persons in India guilty of sedition and that no one however supposes that it is to be read in this literal sense”; it then declared that “the gist of the offense was public disorder or the likelihood of public disorder” (AIR 1942 FC 22), the decision in Tilak’s case remained unnoticed.

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In 1947, in a decision from a decision of the High Court of Bombay, it was precisely in this literal sense that the interpretation of Section 124A was repeated by a Bench of five judges of the Privy Council (AIR 1947 PC 82) in which it was declared that the Federal Court had proceeded on an “entirely wrong construction of Section 124A”, and that: “If the Federal Court had given their attention to Tilak’s case (1897) they should have recognized it as an authority… by which they were bound”.

With the advent of the Constitution of India on January 26, 1950, this interpretation of Section 124A became “the law in force immediately before the commencement of the Constitution”. It continued unaltered, not because the Privy Council decision of 1947 was binding on the Supreme Court (after January 26, 1950 it was not), but only because of the operation of Article 372 of the Constitution. It stated that all laws in force in the territory of India immediately before the commencement of the Constitution shall continue in force therein until altered or repealed or amended by a competent legislature or other competent authority. And in 1955, the Supreme Court had held that the words “laws in force made by a legislature or other competent authority in the territory of India” in Article 13(3) of the Constitution could only mean a legislative authority. (AIR 1955 SC at page 31)

In 1962, in criminal appeals arising from the states of Bihar and Uttar Pradesh, a Constitution Bench of the Supreme Court held that though Section 124A “clearly violated” the fundamental right to freedom of speech and expression in Article 19(1)(a) , it was not unconstitutional only because it was protected from challenge by the words “in the interests of public order” in Article 19(2). The provisions contained in Article 372 were neither noticed nor considered, the Court erroneously holding that there was “a direct conflict between the decisions of the Federal Court (1942) and of the Privy Council (1947)”, and that “either view can be taken and can be supported on good reasons”. But, there was no conflict of decisions at all, because the decision in AIR 1942 Federal Court 22 had been expressly disapproved by a court of superior jurisdiction (AIR 1947 PC82); and the “law in force at the commencement of the Constitution” was that Section 124A had to be interpreted on its own terms without any reference to public disorder or the likelihood of public disorder.

All this has now become pertinent and relevant, because in a fresh batch of writ petitions filed in 2021, the constitutionality of Section 124A (IPC) has been once again challenged in the Supreme Court. By order dated May 11, 2022, a Bench presided over by the Chief Justice of India, has directed that the petitions be listed for final determination in the third week of July 2022; and that in the meantime since “the rigours of Section 124A IPC are no longer in tune with the current social milieu”, it would be appropriate not to continue the use of the said provision of law by either the central or state governments, till the Constitution Bench of the Supreme Court re-examines the provisions of Section 124A.

This column first appeared in the print edition on June 1, 2022 under the title ‘A dispiriting law’. The writer is a constitutional jurist and senior advocate to the Supreme Court

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