The Sedition Act: A Historic Ordinance
Jhe recent Supreme Court order in a case brought by Major General SG Vombatkere (Retired) along with the People’s Civil Liberties Union (PUCL) and a series of other petitioners challenging the constitutional validity of Section 124A of the Code Indian Criminal Justice (IPC) came as a ray of hope that the issue of sedition will no longer feature in the statutes.
In the operative part of the order, the Supreme Court expressed the “hope” and “expectation” that “the Central and State governments will refrain from registering any FIR [first information report], continue the investigation or take enforcement action under Section 124A of the IPC when it is under review. This provision of the law should not be used until a new review has been completed. In addition, the court ruled that those who have already been convicted under Section 124A and are in jail can apply to the relevant courts for bail. It was also decided that if a new case is filed, the appropriate parties are free to go to court for appropriate relief and the courts are requested to consider it.
How should this Supreme Court order be interpreted? The language in which the interim measure was granted is vague, structured around hope and expectation. There is no mandatory directive to ensure that there is no abuse. We can only “hope” that central and state governments will refrain from filing FIRs under Section 124A after the Supreme Court order.
It is also “hoped” that those arrested will be immediately released on bail without having to undergo unnecessary incarceration in light of this important Supreme Court order.
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As weak as the language of order is, it is still an important step forward. The question to ask is: how did we come to this vital recognition that sedition law is a colonial remnant subject to abuse and that citizens need relief from such abuse? More importantly, the spirit of the order is quite clear. The Supreme Court is not in favor of using the law. We can trace the history of this order back to the campaign against the Sedition Act. The first effective salvo fired against the Sedition Act was an eloquent statement by Mahatma Gandhi, when he called it the “prince among the political sections of the CPI designed to suppress the liberty of the citizen”.
History of the Opposition
After independence, one of the most effective campaigns against the law was launched when Binayak Sen, National Vice President of the PUCL was arrested and convicted of sedition.
In recent years, there have been protests and demonstrations when the law has been used to target climate activists such as Disha Ravi. Media reports on the abuse of the law over the years to target journalists, activists and ordinary citizens have contributed to the formation of public opinion against the law.
Read also: “Sedition” in the struggle for freedom
When the petition filed by Vombatkere was heard, it appeared that the Supreme Court was also aware of the colonial nature of the law as well as its abuses. During the hearing, Chief Justice NV Ramana asked the Attorney General whether the law was still needed 75 years after independence. He also observed that “colonial law” was used by the “British to suppress freedoms and used against Mahatma Gandhi and Bal Gangadhar Tilak”.
The central government’s initial response to the court order was not encouraging. Tushar Mehta, the Solicitor General of India who represents the Union of India, took a position before the Supreme Court that there was no need to reconsider the constitutionality of Section 124 AKK Venugopal, the Attorney General , took a slightly different position; he argued that it was not necessary to delete Section 124 A but that the court could develop guidelines to prevent its misuse.
However, the Union of India has made a surprising about-face. She filed an affidavit which, while asserting the need for a ‘criminal provision’ to ‘deal with divisive offences’, also acknowledged that there were concerns about its ‘misuse’ for ‘purposes’. not provided for by law”. The affidavit went on to quote Prime Minister Narendra Modi’s “belief that when the country marks ‘Azadi Ka Amrit Mahotsav’, there is a need to get rid of colonial baggage.”
Also Read: How a Supreme Court Judgment Brought Back Sedition Law in India
The affidavit also mentioned the Prime Minister’s “clear and unequivocal views”, which were “in favor of the protection of civil liberties”.
This progressive rhetoric of the affidavit gets diluted when it comes to the issue of concrete relief. The government has indicated that it will “re-examine and reconsider” article 124 A of the CPI before “the competent forum”. However, he neither named the forum nor specified the time frame for the review.
The vagueness of the affidavit seems to indicate a lack of seriousness in the move towards the repeal of the law. His vague assertions were followed by an argument that it was not necessary for the court “to invest time in considering the validity of Section 124A”.
If one reads between the lines, what the Union of India is saying is that the sentiment of the Prime Minister, who is in favor of human rights and against the “colonial baggage”, is a sufficient guarantee. There is no need for the court to embarrass itself…the government will decide the matter. Behind the affidavit is a naked assertion of executive supremacy.
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The Supreme Court, however, appeared unhappy with the affidavit and insisted that the provision be held in abeyance, pending further government action. This ultimately resulted in the May 11 order. The order baffled the Union government, as evidenced by statements by the Minister of Justice asking the court not to cross the “laxman rekha”.
The court did not leave law reform at the mercy of the Union government, but affirmed its responsibility to those wrongfully charged under this provision. It remains to be seen how the Union government will respond to this assertion by the judiciary that it will fulfill its constitutional responsibility.
Human rights activists now have a responsibility to ensure that the Supreme Court’s ‘hope’ and ‘expectation’ become a concrete reality and that the sedition law falls into oblivion, more 70 years after the Constitution granted freedom of speech and expression to citizens. .
Arvind Narrain is a Bangalore-based lawyer and writer. He is the author of India’s Undeclared Emergency: Constitutionalism and the Politics of Resistance. He is a visiting professor at the School of Politics and Governance at Azim Premji University.