A three-judge bench of Justices U.U. Lalit, Indira Banerjee & K.M. Joseph has issued notice on a petition which has challenged the constitutional validity of section 124 -A of Indian Penal code which penalises the crime of Sedition.
The Court was hearing the petition filed by two journalists from State of Manipur and Chhattisgarh against whom FIRs have been filed under Section 124-A IPC (Sedition) for comments and cartoons they have shared on social networking website Facebook. The petitioner no. 1. Kishorechandra Wangkhemcha belonged to the State of Manipur and Petitioner no. 2. Kanhhaiya Lal Shukla belonged to the State of Chhattisgarh.
During the hearing today, bench has asked Senior Advocate Colin Gonsalves who appeared on behalf of the Petitioner that whether the charges have been framed in a trial court and what is the actual position before trial court?
Colin Gonsalves, Sr. Advocate representing the petitioner replied that the charges before trial court in the proceedings have not been framed yet. Notice was issued by the Apex Court thereafter.
The petitioner has contended that Such section contravenes the contours of article 19(1) which guarantees the citizens of India, a fundamental right to freedom of speech and expression.
By way of writ petition , the petitioner challenged the constitutional validity of section 124 -A of Indian Penal code. Such section contravenes the contours of article 19(1) which guarantees the citizens of India , a fundamental right to freedom of speech and expression . Further, the restriction imposed by the section is an unreasonable one, and therefore does not constitute a permissible restriction in terms of Article 19(2) of the Constitution.
The factual matrix of the case is which is as follows Petitioners No. 1 and 2 are journalists working in the states of Manipur and Chhattisgarh. They have been charged with sedition under section 124A of IPC in various FIRs for comments and cartoons shared by them on the social networking website Facebook. As far as Petitioner no.1 is concerned , multiple FIRs have been registered against him since 2018 with an agenda to silence his voice and to suppress his journalism. He has spent a total of 210 days in custody with respect to numerous FIRs under Section 124A IPC since 2018.
The petitioner No.1 got arrested post lodging of FIR dated 9.08.2018 under section 505(2)/500 of the Indian Penal Code, 1860 only on the basis of his criticism of the Government of Manipur , he made through his Facebook post akin to crisis at the Manipur University and the students’ hue and cry against the ViceChancellor for alleged embezzlement of funds and suppression of the students’ union. He came out on bail on 13.8.2018. Strangely, in a second FIR Lodged against him under section 124A/194/500 IPC, alleging certain comments were made through video posted on facebook which found to be derogatory criticising particular political leaders. He was arrested on 20.11.2018, and was in police custody for 6 days. He was released on bail on 26.11.2018.
Against Petitioner No.2, an FIR was registered on 28.4.2018 under section 124-A IPC and Section 66D of Information Technology Act, 2000, alleging objectionable cartoons of senior leaders shared on facebook. Petitioner No. 2 was granted anticipatory bail regarding the said FIR by the Hon’ble High Court of Chhattisgarh, Bilaspur, vide order dated 26.7.2018.
Law reiterated in Pursuant to Section 124A, IPC 1860 –
The Supreme Court categorically held in Para 20 of R. Rajagopal v. State Of T.N. 1995 AIR 264 that , “In a free democratic society it is almost too obvious to need stating that those who hold office in Government and who are responsible for public administration must always be open to criticism. Any attempt to stifle or fetter such criticism amounts to political censorship of the most insidious and objectionable kind.”
The Supreme Court in S. Khushboo v. Kanniammal (2010) 5 SCC 600 ), held that “The law should not be used in a manner that has chilling effects on the `freedom of speech and expression’.”
Earlier, the Supreme court in ( Kedar Nath Singh v. State of Bihar) 1962 Supp (2) SCR 767 while dealing with scope of Section 124A, of IPC 1860 took stand that acts which involves intention or tendency to create disorder, or disturbance of law and order, or incitement to violence would be made penal by section 124-A.
INTERPRETATION OF SECTION 124A READING WITH FREEDOM OF SPEECH AND EXPRESSION –
The Hon’ble apex court in Bennett Coleman & Co. v. Union of India (1972) SCC 788 ) reiterated significance of Freedom of Speech and Expression ,and held that “Free expression is necessary: (1) for individual fulfillment, (2) for attainment of truth, (3) for participation by members of the society in political or social decision making and (4) for maintaining the balance ‘between stability and change in society.” Freedom of expression importantly, allows the political discourse which is necessary in any country which aspires to democracy.
Interestingly, in a drastic constitutional development, there are few countries such as New Zealand, Uganda, Ghana etc who have repealed sedition and declared it to be unconstitutional.
Few Grounds which have been taken by the Petitioner , challenging validity of section 124A of IPC 1860 –
1. Because Section 124-A violates Article 19(1)(a) of the Indian Constitution, the fundamental, Constitutional and democratic right to freedom of speech and expression, 81which is the ‘cornerstone’ and the sine quo non of democracy;
2. Because Section 124-A is unnecessary to protect the interests of state security and public disorder, and is duplicated by more recent legislation which directly and sufficiently prevents and deals with the mischief of public disorder and public violence; 3. Because there exists no urgency justifying the employment of Section 124-A, given that the interests of state security and the public order are sufficiently protected elsewhere in Indian law;
4. Section 124-A imposes unreasonable restrictions and fettered on the freedom of expression, and fails to constitute the least restrictive means to protect state security and public disorder in this regard.
5. the terms ‘intention’ and ‘tendency’ in the interpretation of Section 124-A are so subjective that the law is uncertain and unascertainable and are an invitation to abuse by authorities
6. In the United Kingdom, Ireland, Australia, Canada, Ghana, Nigeria and Uganda, the offence of sedition has been condemned as undemocratic, undesirable and unnecessary.
The sedition law and its validity
Section 124A IPC states: “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 a fine may be added; or, with imprisonment which may extend to three years, to which a fine may be added; or, with fine.”