Sedition Law: Deactivation of the ‘colonial baggage’ - Business Guardian
Connect with us

Legally Speaking

Sedition Law: Deactivation of the ‘colonial baggage’

Published

on

The Supreme Court on May 18 issued interim order curbing the functionality of archaic sedition law under Section 124A of CrPC which was inserted in 1870 by an amendment in Indian Penal Code in 1870 by Sir James Macauley and 152 years have expired since its introduction in British India’s judicial system.

This order will render all appeals, pending trials and proceedings in abeyance so on and so forth till the government has reconsidered its provisions. The bench comprised Chief Justice of India NV Ramana, Justice Surya Kant, Justice Hima Kohli who also asked of the Central as well as State governments to not register any FIRs, go on with any investigation or take coercive measures by invocation of Section 124A of IPC till further orders are passed by the court. However, cases under other sections shall proceed provided that the Court is satisfied that it would not be prejudicial to the accused. The order also called for the relief to the undertrials under said section and allowed such parties to approach the concerned Courts who will be tasked to examine such relief sought while taking into account the present order along with the clear status on this law by the Union of India.

In a series of contentions and counter- arguments, it was put before the Court that the cognisable offences cannot be let go as unregistered according to the law, therefore the government shall be willing direct the States and Union territories to follow the guidelines issued in Vinod Dua case of 2021, also taking responsibility that the registration of fresh cases happens only under the supervision of Superintendent of Police, submitted along with written reasons for such charges. In the Vinod Dua case, the Supreme Court has laid down, “ A citizen has a right to say or write whatever he likes about the govt… so long as he does not incite people to violence against the government established by law or with the intention of creating public disorder.”

The petitioners’ counsel, Kapil Sibal, a senior leader of India’s opposition Congress party and a lawyer for the petitioners, objected to the Centre’s request and urged the court to “go ahead with the matter”: “It’s for the judiciary to decide whether a law is constitutional or not. We can’t wait for what they (legislature, executive) will do.”

He told the Supreme Court that there were over 800 sedition cases pending across the country and that over 13,000 people were in prison. According to data provided by the website Article14, the majority of sedition cases launched against 405 Indians for criticising politicians and governments over the last decade occurred after Prime Minister Narendra Modi entered power in 2014.

As against the petitioners’ appeal to put a permanent pause on the sedition law, Solicitor General of India, Tushar Mehta contended that since the determination of gravity of each case shall be subjected to the discretion of the Court and further judicial review, Section 124A should not be stuck down or stayed along with the fact that “to pass any other order would virtually amount to staying the statutory provision, constitutionality of which is upheld by the Constitution, as of now.”

In the Kedarnath Singh Judgement, the Supreme Court while upholding Section 124A had attempted to prevent its misuse by laying down what amounts to sedition and what does not. The Centre reassured the bench earlier that it is “fully cognizant of the various views” on the concerned law and “has decided to re- examine and reconsider the provisions of Section 124A”. The bench issued the orders after observing that the government has agreed with the prima facie view expressed by the Court that the “rigours of 124 IPC isn’t in tune with current social milieu and was intended for what when the country was under colonial regime”. The government’s affidavit stating the Prime Minister’s belief in getting rid of the “colonial baggage” in view of Azadi Ka Amrit Mahotsav paved way for this awaited reconsideration process.

The sedition law has lately cracked the whip on protestant youth leaders, further inflaming the debate on sustainability of section 124 A in present day and age. Delhi High Court in the case of environment activist Disha Ravi’s case has clarified that the citizens cannot be put “behind bars simply because they chose to disagree with the state policies” and “the offence of sedition cannot be invoked to minister to the wounded vanity of the governments.” The bench mentioned Attorney General KK Venugopal who also had “on an earlier date of hearing, given some instances of glaring misuse of this provision like in the case of recital of the Hanuman Chalisa”.

The Queen v. Jogendra Chandra Bose case (1891) in Bangabasi was the first sedition trial. For a long time, there has been a heated dispute over the misuse of Section 124A and whether or not it should be declared unconstitutional. The law which had never been considered enduring even in the colonial era has almost verged on being unreasonably cruel to democracy itself. The data by NCB further presents a gruelling picture. Considering the conviction rate under the sedition law, although the number of arrests for sedition has increased, just 2.25 percent of those arrested have been convicted. Only nine people were convicted in the 399 cases that were filed between 2014 and 2020. Charge sheets were only filed in 169 of the instances reported, according to the ministry of home affairs data. This indicates that the sedition law is not a very effective incarceration tool. In the last seven years, 2,862 citizens have been charged with sedition for protesting against the farm bills, Covid-19, Hathras gang rape, citizenship, and being critical of the government, according to the Article 14 archive. The amount of sedition prosecutions filed each year has increased by 28% since 2014. The Apex Court in the present order stated that it is “cognizant of the security interests and the integrity of State on one hand, and civil liberties of citizens on the other. There is a requirement to balance both sets of considerations, which is a difficult exercise. The case of the petitioners is that this provision of law dates back to 1898 and pre-dates the Constitution itself, and is being misused”.

As per the Section 124 A of IPC, “whoever, by words, either spoken or written, or by signs, or by visible representation, or otherwise, 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], to which fine may be added, or with imprisonment which may extend to three years, to which fine may be added, or with fine.” What’s more worrying is that after you’ve been arrested for sedition, it’s incredibly difficult to gain bail because the trial process can take a long time. As a result, innocent people are harassed, and others are afraid to speak out against the government. The Kashmiri students in Hubli are an example of how difficult it is to obtain bail in a sedition case, as they were granted default bail after 100 days in police prison.

The rebellion of our country’s freedom warriors against colonial control is one of history’s most well-known examples of sedition. On two instances, Bal Gangadhar Tilak, a strong proponent of India’s freedom, was charged of sedition. It was initially given out in 1897 for comments that allegedly incited others to commit acts of violence, culminating in the deaths of two British officers. He was convicted guilty and released on bail in 1898, and in 1909, he was tried for seditious writing in his newspaper, Kesari, which he owned at the time.

Section 124 A was defined and implemented for the first time in 1897. According to the court, the incitement to violence and insurrection was unimportant in the view of the governing Privy Council when determining the blame of a person charged with sedition. This case demonstrated how to interpret the phrase “disaffection.”

The sedition law has been challenged on several grounds. Firstly, it significantly limits the fundamental right of free speech and expression of the individuals by labelling criticism against the government as sedition. It has been almost sinister to observe in a democracy like India that the colonial law that has continued to govern the sedition has been abolished in Britain itself.

The right to free speech and expression is a hallmark of democracy, but it is under threat because to the sedition statute. Citizens must actively participate in debates and express constructive criticism of government policies in a democracy. The executive arm of the government, on the other hand, has been authorised by the sedition laws to use the ambiguously worded provision as a tool to regulate public opinion and indiscriminately wield authority. The sedition legislation has evolved into a tool for instilling civilian obedience with government policies. Many times, the government has utilised the sedition law to silence protesting voices in order to defend its own interests.

This law was reimposed by the very controversial First Amendment that was passed by the government headed by the first Prime Minister Jawaharlal Nehru. While introducing the first amendment to the Constitution in 1951, Nehru had stated that, “Now so far as I am concerned that particular Section (124A IPC) is highly objectionable and obnoxious and it should have no place both for practical and historical reasons, if you like, in any body of laws that we might pass. The sooner we get rid of it the better.” This amendment further added to the sedition law the expressions, “friendly relations with foreign state” and “public order” as grounds for imposing “reasonable restrictions” on free speech, which exist till date in section 124A. Hatred, disagreement, enmity, disrespect, and any other type of ill will against the government are all examples of dissatisfaction with the government, as per the said section.

Besides these, heavily provisioned IPC and UAPA 2019 already have in place ample safeguards to shield against “disrupting the public order” or “overthrowing the government with violence and illegal meals”.

The section 124 A poses ambiguous definition of sedition; the words such as “disaffection” are vague enough for investigating officers to misuse it any apply whimsical interpretations. This issue was recently touched upon by Justice D.Y. Chandrachud while restraining the Andhra Pradesh government from taking adverse action against two Telugu news channels booked under Section 124A (sedition) of the Indian Penal Code (IPC). Justice Chandrachud stated, “Everything cannot be seditious. It is time we define what is sedition and what is not.”

This is not unexpected given the extensive use of this statute in recent years, not only against journalists but also against other nonviolent dissenters. The state has a helpful weapon in the shape of the legislation against sedition to maintain law and order in society. It cannot, however, be employed to quell discontent under the guise of putting criminals out of business. Any conduct that has the potential to provoke public disruption or distress through the use of violence is, of course, illegal.

While hearing a PIL filed against Farooq Abdullah, the former Chief Minister of Jammu and Kashmir, Justice Chandrachud remarked, “Expression of views which is dissent and different from the opinion of the government cannot be termed seditious.” Provided that the sedition law is too broad to be indiscriminately exploited by the law enforcement system to harass individuals with a voice to dissent, the courts have been attentive to the current scenario that calls for immediate legal and remedial action to rescue the aggrieved from capricious clutches of the Victorian-era law that ought to be buried with the colonial past.

The Supreme Court of India debated the constitutionality of Section 124A, which criminalises sedition, in the case of Kishorechandra Wangkhemcha v. Union of India (2021). Two Indian journalists, Kishorechandra Wangkhemcha and Kanhaiya Lal Shukla, were charged with sedition in connection with posts and cartoons on social media platforms. They’ve filed a writ case contesting the constitutionality of Section 124A, which makes sedition illegal and punishable.

The supporters of sedition law actively advocate that Section 124A can be used to combat anti-national, separatist, and terrorist elements, among other things. It protects the elected government from attempts to overthrow it through violent acts and criminal means. Maintaining the legitimacy of the legally created government is a crucial prerequisite for a state’s coherence. If contempt of court leads to criminal prosecution, then so should contempt of government. When someone exercises their right to free expression, it does not mean that they are free to speak whatever they want to whomever. The right to vote has been restricted, which is unfortunate yet necessary. Abusers of freedom of expression are those who use it to separate people on the basis of religion or caste. In a democratic society, it is important to limit one’s freedom in order to protect the rights of others.

People must exercise their right to freedom of expression to the utmost extent feasible while still exercising it responsibly. Right to free expression is currently confined to speaking out against what is wrong.

While the government has finally given the green light, expectations are high on having a progressive definition of sedition to shake things up given the already intense political dialogue.

In a series of contentions and counter- arguments, it was put before the Court that the cognisable offences cannot be let go as unregistered according to the law, therefore, the government shall be willing to direct the States and Union territories to follow the guidelines issued in Vinod Dua case of 2021, also taking responsibility that the registration of fresh cases happens only under the supervision of Superintendent of Police, submitted along with written reasons for such charges. In the Vinod Dua case, the Supreme Court has laid down, “A citizen has a right to say or write whatever he likes about the govt… so long as he does not incite people to violence against the government established by law or with the intention of creating public disorder.”

The Daily Guardian is now on Telegram. Click here to join our channel (@thedailyguardian) and stay updated with the latest headlines.

For the latest news Download The Daily Guardian App.

Legally Speaking

Disproportionate assets case: Delhi High Court stays Lokpal proceedings initiated against Jharkhand Mukti Morcha chief Shibu Soren

Published

on

Disproportionate assets case: Delhi High Court stays Lokpal proceedings initiated against Jharkhand Mukti Morcha chief Shibu Soren

On Monday, the Delhi High Court has stayed the proceedings initiated by Lokpal of India under the provisions of the Lokpal & Lokayuktas Act, 2013 against Jharkhand Mukti Morcha (JMM) Chief and Rajya Sabha MP Shibu Soren in connection with a disproportionate case of assets.

The bench comprising of Justice Yashwant Varma observed and has passed an order on Soren’s plea challenging the validity of the said proceedings, claiming that the same was ex facie bad in law and without jurisdiction.

In the present case, the proceedings were initiated by Lokpal of India pursuant to a complaint dated August 5, 2020 filed by BJP’s Nishikant Dubey. Therefore, it has been directed by the CBI to make a preliminary enquiry into the Complaint under section 20(1)(a) of the Lokpal and Lokayuktas Act, 2013. It was claimed by Soren that the said order was not served on him.

While claiming the complaint was false, frivolous and vexatious, Soren in his plea submitted that according to section 53 of the Act and there is a statutory bar against the Lokpal of India assuming jurisdiction to investigate or inquire into any Complaint made after the expiry of seven years from the offence alleged.

The plea reads that the initiation of the proceedings under the Complaint, or at the very least, continuation thereof, once it has been demonstrated by the preliminary inquiry that it pertains to alleged acquisitions prior to the 7-year period and is clearly barred by statute, without jurisdiction and the same is liable to be quashed.

Further, the petition filled submits that the maximum period of 180 days for completion of preliminary enquiry from the date of Complaint expired on February 1, 2021. In this backdrop, it has been stated that by this time, only on July 1, 2021, the comments were sought from Soren which is beyond the prescribed statutory period.

The plea adds that the final preliminary enquiry report was submitted by the CBI on 29.06.2022, about a year and a half after expiry of the 180- day period. Such purported report is void and null and non-est in the eyes of law and cannot be received or considered by the Respondent No.1.

Thus, the court took note of the order passed by Lokpal of India dated August 4, 2022 directing that proceedings under section 20(3) of the Lokpal Act be initiated to determine whether a prima facie case existed to be proceeded against Soren. It is Soren’s case that the order was passed without considering the preliminary objection on jurisdiction being raised by him.

In the said order, the court noted that all the Lokpal of India recorded was that the comments received from the petitioner were forwarded to CBI so as to examine and submit an enquiry report.

It was ordered by the court that the challenge to assumption of jurisdiction by respondent no. 1 (the Lokpal of India) has neither been answered and nor dealt with. Matters require consideration. Subsequently, there will be a stay of proceedings pending before the Lokayukta.

Accordingly, the court will now hear the matter on 14 December.

Continue Reading

Legally Speaking

DELHI HC SETS ASIDE MURDER CONVICTION & LIFE SENTENCE OF MAN WHO WAS UNPRESENTED BY LAWYER; REMANDS CASTE BACK TO TRIAL COURT

Published

on

DELHI HC SETS ASIDE MURDER CONVICTION & LIFE SENTENCE OF MAN WHO WAS UNPRESENTED BY LAWYER; REMANDS CASTE BACK TO TRIAL COURT

The Delhi High Court in the case Narender @ Lala v. State Of NCT Of Delhi observed and has set aside the orders of conviction for murder and sentence of life imprisonment awarded to a man in 2018 who was unrepresented by a lawyer before the Trial Court. Thus, the Delhi High Court has remanded the case back to the Trial Court for cross examination of certain prosecution witnesses.

The division bench comprising of Justice Mukta Gupta and Justice Anish Dayal observed and was of the view that there had been a grave miscarriage of justice to the man as when number of witnesses were examined, he was not represented by a counsel and that the legal aid counsel, who was present before Trial Court and was appointed on the same day and asked to cross- examine the witnesses on the same day.

On March, 2018, Narender was convicted for offence of murder punishable under section 302 of Indian Penal Code, 1860. On 4th May, 2018, he was sentenced by the Trial Court for life imprisonment and also to pay a fine of Rs. 10,000.

In the present case, the case of the prosecution was that the man had committed murder of his wife by strangulating her to death.

In a appeal, it was argued by the man that during the substantial course of trial, he was not represented by a lawyer and hence the trial in the absence of a lawyer had seriously prejudiced him. He thus sought recalling of all the prosecution witnesses and thereby ensuring a fair trial.

The Court observed that the manner in which the trial is conducted, there was a serious denial of fair trial to the appellant and the appellant is required to be given an opportunity to cross-examine the witnesses i.e., the witnesses examined in the absence of the lawyer, or the lawyer having been appointed on the same day from the legal aid and is asked to cross-examine the witnesses.

Further, the court remanded the back to Trial Court for cross-examination of ten prosecution witnesses. Also, the court directed the Trial Court Judge to follow due process of law and also to record the statement of the man under Section 313 CrPC and permit leading the defence evidence if so required.

The Court ordered that the case be listed before the learned Trial Court on 26th September, when Superintendent Tihar Jail will product the appellant before the learned Trial Court and the learned Trial Court is requested to expedite the trial and conclude the same preferably within four months.

Continue Reading

Legally Speaking

SUPREME COURT REFUSES TO ENTERTAIN PLEA CHALLENGING EXCLUSION OF SC/ST RESERVATION IN JHARKHAND DISTRICT JUDGES APPOINTMENT

Published

on

SUPREME COURT REFUSES TO ENTERTAIN PLEA CHALLENGING EXCLUSION OF SC/ST RESERVATION IN JHARKHAND DISTRICT JUDGES APPOINTMENT

The Supreme Court in the case Dr. B.R. Ambedkar Educational And Cultural Trust v. Hon’ble High Court Jharkhand And Ors. observed and has refused to entertain a plea challenging the non-inclusion of reservation for Scheduled Castes, Scheduled Tribes and Other Backward Classes communities in the process of appointment of District Judges in pursuant to an advertisement issued in March, 2022 by the High Court of Jharkhand. The present petition claimed that the exclusion of reservation violates Jharkhand State Reservation Policy and constitutional guarantee under Article 16(4). Apart from this, it is also in derogation of a resolution being passed by the High Court vouching to implement reservation in the Jharkhand Superior Judicial Service.

The bench comprising of Justice D.Y. Chandrachud and the Justice Hima Kohli observed and has granted liberty to the petitioner to file a petition under Article 226 of the Constitution before the Jharkhand High Court.

The court while considering that the process of appointment as per the concerned notification is underway, Justice Chandrachud asked the petitioner to approach the High Court with respect to future appointments.

It stated that “For the future you can file a petition before the High Court… We will give you liberty to approach the High Court under Article 226 of the Constitution.”

The bench of Justice Chandrachud observed that the Decisions of the Administrative side of the High Court can be challenged before the judicial side of the High Court. You can move the High Court.

In the present case, a writ petition challenging a similar notification was filed in 2017 before the High Court, which was eventually dismissed. It was observed by the High Court that there is no duty vested in the authorities to reserve seats for all posts, more particularly in higher judiciary. Moreover, it had already initiated the appointment process, the High Court opined that it cannot alter the rules midway. Thus, the appeal filed before the Apex Court was also dismissed.

However, in 2018 the Full Court of the Jharkhand High Court had agreed in principle to grant reservation in the recruitment for Jharkhand Superior Judicial Service. The advocates belonging to the SC/ST/OBC communities in 2021 had made representations to the Chief Justice of the High Court requesting for the implementation of the Reservation policy in appointment of District Judges (direct entry from Bar)/ superior judicial service. The impugned notification was issued without incorporating reservation for SC/ST/OBC communities in March 2022.

Mr. Arvind Gupta, Advocate on Record has filled the present petition.

Continue Reading

Legally Speaking

Right to contest election is not a fundamental right; it is only a right conferred by statute: Supreme Court

Published

on

Don’t compare Turban, Kirpan with Hijab: SC

The Supreme Court in the case Vishwanath Pratap Singh vs Election Commission of India observed that the right to contest an election is not a fundamental right but only a right conferred by a statute.

The bench comprising of Justice Hemant Gupta and the Justice Sudhanshu Dhulia observed while dismissing a Special Leave Petition filed by Vishwanath Pratap Singh that an individual cannot claim that he has a right to contest election and the said stipulation violates his fundamental right, so as is required under the Act, to file his nomination without any proposer.

Also, the court imposed a cost of Rupees one lakh on Singh.

In the present case, Singh had first approached the Delhi High Court challenging a notification issued by Election Commission of India for election to Rajya Sabha after he was not allowed to file his nomination without a proper proposer being proposing his name. His contentions were rejected by the High Court that his fundamental right of free speech and expression and right to personal liberty has been infringed.

While dismissing the SLP, the Apex Court observed that the writ petition before the High Court was entirely misconceived.

The bench observed while referring to earlier judgments viz Javed v. State of Haryana, (2003) 8 SCC 369 and Rajbala v. State of Haryana (2016) 2 SCC 445 wherein it was stated that the right to contest an election is neither a fundamental right nor a common law right. It is a right conferred by a statute.

However, the Supreme Court in Javed (supra) had made the following observations: Right to contest an election is neither a fundamental right nor a common law right and it is a right conferred by a statute. At the most, in view of Part IX having been added in the Constitution of India that a right to contest election for an office in Panchayat may be said to be a constitutional right and a right originating in the Constitution and given shape by a statute. But even if, it cannot be equated with a fundamental right. It is stated that there is nothing wrong in the same statute which confers the right to contest an election also to provide for the necessary qualifications without which a person cannot offer his candidature for an elective office and also to provide for disqualifications which would disable a person from contesting for, or from holding, an elective statutory office.

It was held in Rajbala (supra) that the right to contest for a seat in either of the two bodies is subject to certain constitutional restrictions and could be restricted further only by a law which the parliament made.

Further, the court added that Singh did not have any right to contest election to the Rajya Sabha in terms of the law made by the Parliament.

The Court stated while dismissing the SLP that the Representation of People Act, 1950 read with the Conduct of Elections Rules, 1961 has contemplated the name of a candidate to be proposed while filling the nomination form. However, it cannot be claimed by an individual that he has a right to contest election and the said stipulation violates his fundamental right, so as to file his nomination without any proposer as is required under the Act.

Continue Reading

Legally Speaking

Post-conviction compounding of offences is permissible: Himachal Pradesh High Court

Published

on

The Himachal Pradesh High Court in the case Shri Kantu Ram v Shri Beer Singh recently observed that a court, while exercising powers under Section 147 of the Negotiable Instruments Act and can proceed to compound the offences even after recording of conviction by the courts below.

The bench comprising of Justice Sandeep Sharma observed in a case where the revision Petitioner, who was convicted under Section 138 of the NI Act by the Magistrate Court and was aggrieved by subsequent dismissal of appeal by the Sessions Court and had agreed to pay the amount due and settle the matter.

Thus, the petitioner had sought compounding of offences.

In the present case, the respondent admitted the factum with regard to receipt of the amount due from the accused and expressed that the prayer made on behalf of accused for compounding of offence can be accepted.

However, the High Court allowed the prayer and the offence committed by the Petitioner under Section 138 NI Act was ordered to be compounded.

The Court observed that the Reliance was placed on Damodar S. Prabhu V. Sayed Babalal H. (2010) 5 SCC 663, wherein the Apex Court has categorically held that court, while exercising power under Section 147 of the NI Act and can proceed to compound the offence even after recording of the conviction by the courts below.

Continue Reading

Legally Speaking

‘Pensionary benefits to employee, who is removed from service for misconduct, is not at par with those who retire on superannuation’

Published

on

The Jammu and Kashmir and Ladakh High Court in the case Bashir Ahmad Wani v Jammu and Kashmir Grameen Bank and Another recently observed and stated that an employee who is removed from service for misconduct is not at par with those who is being retired on superannuation.

The bench comprising of Justice Sanjeev Kumar observed while dismissing the pension claim made by a former employee of the J&K Grameen Bank, who was removed from service in 2011.

In the present case, the petitioner had sought benefit of the J&K Grameen Bank (Employees) Pension Regulations, 2018 whereby provision was made for terminal benefits.

However, the court disallowed the claims on two grounds:

Firstly, that at the time of removal of the petitioner from service when there were no norms, rules or regulations providing for the benefit of pension to the employees of the respondent-Bank.

In the year 2011, the employees of the respondent-Bank were governed by the J&K Grameen Bank ( the Officers and Employees) Service Regulations, 2010… it is abundantly clear that it does not prescribe imposition of a penalty of removal along with the pensionary benefits.

Secondly, it was opined by the court that though the 2018 Regulations had been made applicable to those employees who were in service between 1st day of September, 1987 and 31st day of March, 2010 and the employees retired from the services of the Bank before 31st day of March, 2018, however, this leeway cannot come to aid of the Petitioner.

The Curt observed that the reason for finding that the Petitioner was not an employee who had “retired” on superannuation from the bank. Rather, he was “removed” for misconduct.

The Court stated that the regulations apply to those employees who retired from the service of the Bank before 31.03.2018 and not the employees who were terminated for misconduct. Viewed thus, the order of removal of the petitioner dated 02.09.2011 holding the petitioner entitled to terminable benefits and cannot, by any stretch of reasoning, be construed to be an order of removal with the benefit of the pension. Neither, the petitioner, at the time of his removal from service, nor with the promulgation of Pension Regulations of 2018, is entitled to the benefit of pension.

Accordingly, the court dismissed the petition.

Continue Reading

Trending