Saturday, November 26, 2022

Returning Empty-handed

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By Inderjit Badhwar

What often makes startling headlines in the daily press does not necessarily reflect the nuance of the matter being reported, especially when it involves the subtleties of the law and the constitution. Media stories on a Supreme Court judgment on a writ filed by Common Cause make it appear as if Prashant Bhushan, the counsel for the petitioners, had scored another earth-shattering, landmark victory for freedom of speech in his self-styled crusade for civil liberties.

Actually, the Honorable Judges—Dipak Misra and Uday Umesh Lalit—declined to deal with four specific reliefs sought by the petitioner—and chose to reiterate the larger principles of law laid down by a Constitution Bench of the Supreme Court in 1962 regarding prosecution under Section 124A (sedition) of the Indian Penal Code.

If there was any victory to be claimed as a result of this legislation, it was not a win for Bhushan or the organization he was representing, but rather, for precepts already laid down by the apex court.


In summary, the petition sought that police officers receiving a complaint under the sedition section shall not register an FIR before obtaining the written consent of the Director General or Commissioner of Police.

Ironically, a complaint under this section filed by Major SK Punia against Bhushan for his advocacy of a plebiscite in the state of Jammu and Kashmir is pending. In an interesting development which came as a surprise during the proceedings, Punia chose to intervene, telling the court that Bhushan was trying to pre-empt his complaint, suggesting that his petition, though presented as a PIL, was in reality an anticipatory defensive action to benefit his own interests rather than those of the public at large.

Punia made several arguments questioning the legitimacy of Bhushan to file the writ. He said that Bhushan being a member of the governing council of Common Cause could not appear and argue on behalf of the society since this violated Bar Council of India rules. In addition, the proper remedy for a person against whom an FIR alleging sedition is registered is to seek quashing of that FIR before the High Court under Section 482 of the Code of Criminal Procedure (CrPC).

Section 124A of IPC is a cognizable, bailable and non-compoundable offence. Details available with the National Crime Records Bureau (NCRB) show that 47 such cases have been reported all over India.

Bhushan argued that the law of sedition was made by the British and was used against freedom fighters, and that the wording of Section 124A is such that it is often misused and FIRs are registered rampantly.

The Common Cause petition sought the following relief from the Supreme Court:

a.“Issue an appropriate writ making it mandatory for the concerned authority to produce a reasoned order from the Director General of Police (DGP) or the Commissioner of Police, as the case may be, certifying that the ‘seditious act’ either lead to the incitement of violence or had the tendency or the intention to create public disorder, before any FIR is filed or any arrest is made on the charges of sedition against any individual.


“b. Issue an appropriate writ directing the Ld. Magistrate to state in the order taking cognizance certifying that the “seditious act” either lead to the incitement of violence or had the tendency or the intention to create public disorder in cases where a private complaint alleging sedition is made before the Ld. Magistrate.

“c. Issue an appropriate writ directing for a review of pending cases of sedition in various courts to produce an order from the DG or Commissioner of Police, as the case may be, certifying that the “seditious act” either lead to the incitement of violence or had the tendency or the intention to create public disorder in cases.

“d. Issue an appropriate writ directing that investigations and prosecutions must be dropped in cases where such a reasoned order as prayed for in Prayers (a), (b) and (c) is not provided and the act in question involved peaceful expression or assembly.”

It is mystifying why Bhushan, if he did not believe in the fairness or the validity of the Section itself, chose not to challenge its very constitutionality rather than attempting to reinvent a wheel already set in motion by the Supreme Court itself in 1962 in the Kedar Nath Singh vs State Of Bihar. It unambiguously states:

It is well settled that if certain provisions of law construed in one way would make them consistent with the Constitution, and another interpretation would render them unconstitutional, the Court would lean in favour of the former construction. The provisions of the sections read as a whole, along with the explanations, make it reasonably clear that the sections aim at rendering penal only such activities as would be intended, or have a tendency, to create disorder or disturbance of public peace by resort to violence. As already pointed out, the explanations appended to the main body of the section make it clear that criticism of public measures or comment on Government action, however strongly worded, would be within reasonable limits and would be consistent with the fundamental right of freedom of speech and expression. It is only when the words, written or spoken, etc. which have the pernicious tendency or intention of creating public disorder or disturbance of law and order that the law steps in to prevent such activities in the interest of public order. So construed, the section, in our opinion, strikes the correct balance between individual fundamental rights and the interest of public order. It is also well settled that in interpreting an enactment the Court should have regard not merely to the literal meaning of the words used, but also take into consideration the antecedent history of the legislation, its purpose and the mischief it seeks to suppress……….

Hence, these provisions would not exceed the bounds of reasonable restrictions on the right of freedom of speech and expression. It is clear, therefore, that cl. (2) of Art. 19 clearly save the section from the vice of unconstitutionality.”

The Kedar Nath judgment makes for good law. Justices Misra and Lalit rightly, in the exercise of judicious integrity refused to interfere in any manner except by reiterating that the authorities while dealing with cases under Section 124A of IPC would do so guided by the principles laid down in Kedar Nath’s case. After hearing the arguments from both sides, the judges observed:

  • The Supreme Court cannot make amendments in CrPC as sought by the petitioner.
  • The police officer is competent to know the law laid down by the Supreme Court.
  • There was the remedy of quashing the FIR under Section 482 CrPC and hence, interference by the Court was not warranted.

Finally, the Court held that there was no need for interference by the Court and stated that the law laid down by the constitution bench in Kedar Nath Singh vs UOI shall be followed. The Court denied Bhushan’s request that the order shall be communicated to the chief secretaries of the states.

The Court concluded: “We are of the considered opinion that the authorities while dealing with the offenses under Section 124A of the IPC shall be guided by the principles laid down by the Constitution Bench in Kedar Nath Singh vs State of Bihar (1962). Except saying so, we do not intend to deal with any other issues as we are of the considered opinion that it is not necessary to do so.”

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