By: Prabhat Singh
(This post is the second of a two-part series on the topic – ‘A CASE IN SUPPORT OF RETAINING SECTION 124A’)
ANALYSIS OF ARGUMENTS GIVEN IN SUPPORT OF REPEALING SECTION 124A
There are certain, often repeated, arguments that are made to support the case for the revocation of Section 124A. In this part, the author would analyze those infamous arguments, from the legal and factual prism.
- Constitution does not Contain ‘Sedition’ as a Reasonable Restriction on Free Speech.
Most often it has been argued that since the term ‘sedition’ is omitted in Clause 2 of Article 19; hence there is no justification for having ‘sedition’ as an offense in India. In short, the argument against the provision is that its presence in the IPC is at loggerheads with the express intent of the Constituent Assembly to do away with it.
The above claim needs to be tested on the touchstone of relevant debates that took place about ‘Sedition’.
At the outset, it is relevant to point out that few members were against the idea of placing any restrictions on freedom of speech and expression for the reason that this would negate the enforcement of freedom given in the Constitution. As regards ‘sedition’ they submitted that the ‘sedition’ should not be placed as a restriction for the term is ambiguous and has been interpreted widely by courts of law.
In response to the above apprehensions, Shri KM Munshi moved amendment no. 86. That for amendment No. 453 of the List of Amendments, the following be substituted:
“.. which undermines the security of, or tends to overthrow, the State’.”
He further submitted his explanations for bringing up the aforesaid amendment. He states as follows: “… Sir, ..this amendment seeks to delete the word ‘sedition’ and uses a much better phraseology, viz., “which undermines the security of, or tends to overthrow, the State.” The object is to remove the word ‘sedition’ which is of doubtful and varying import and to introduce words which are now considered to be the gist of an offense against the State.”
The above amendments as suggested by Shri Munshi ultimately, in the language of Article 19(2) as it stood on January 26, 1950. From the bare perusal of the above discussions it is aptly clear that the members were not against the underlying concept of ‘Sedition’, but they certainly had reservations concerning the term ‘Sedition’, which, I think, was logical to have given the different shades of judicial interpretations the Section has gone through.
In this regard the dissenting opinion in Brij Bhushan v. state, Justice Fazal Ali recognizes the dilemma our constitutional framers would have been in, owing to the different magnitude of judicial interpretations. They were not sure in what sense ‘sedition’ should be used; hence they decided to use a more general word that covers acts of sedition.
These observations of the apex court led the Parliament to amend clause 2 of article 19, whereby ‘public order’ was added as one of the grounds for curtailment of free speech. It also added the words ‘reasonable restriction’. Notably, this amendment was given retrospective effect and has never been challenged, regarding this aspect. It is, therefore, established that our constitutional makers were not against the underlying concept of ‘Sedition’. Hence, the above claim does not hold enough water.
- The UK has repealed it; why shouldn’t it be Indian?
The other argument given in favor of repealing Section 124A is; that since the mother country has repealed it, there is no logic why India should keep this on the statute book. The response to this argument is twofold – firstbefore we jump on to the conclusion, it would be relevant to analyze the local circumstances of both India and the UK Importantly, the UK has repealed the law on sedition only after controlling the seditious tendencies (like those of Irish Republican Army) while India is still struggling in a couple of regions. It, therefore, suggests that the circumstances allowed the UK to repeal the Sedition law. That is certainly not the case in India as of yet. The 267th report of the Law Commission categorically mentions that the rise in the use of social media and the internet led to a rise in the spreading of mal-information containing seditious/hate speeches. secondly, it is not sagacious to repeal a particular law merely because the mother country has done away with it; if that is the case, we might have to repeal/change a lot of laws and practices that have been borrowed from Britain. In my opinion, before we draw any parity between India and the UK, we should also analyze the geo-political circumstances as well. A recent study conducted by Microsoft shows that Hate speech is one of the top risks for India’s online users. Apart from that, we have elements of separatists, both within and without India. It is, therefore, submitted that the current socio-political situations in India and the UK are different; therefore same yardsticks cannot be used to evaluate both countries. We must weigh our local circumstances individually before forming any opinion.
The most infamous argument in favor of deleting section 124A is its misuse by political parties and the government. It might be true, but they misuse the law can never be and should never be accepted as a ground for challenging the constitutional validity of that particular law. Because if that is accepted as true, then it would set a bad precedence, which would open Pandora’s box for litigation, challenging vires of Acts on the ground of misuse of them. The misuse of a law is a problem that lies at the level of officials and cannot be brand as a legal issue as such.
There are news reports and the observations of the apex court which suggest that section 498A of IPC [Punishing Cruelty] has been misused a lot by certain women, for whose protection it was incorporated in the first place. Should we abolish section 498A then? In Rajesh Sharma v. State of Uttar Pradesh, the apex court took judicial notice of the misuse of section 498A and laid down certain guidelines to stop its misuse. It did not repeal the law. Similarly, the apex court has framed guidelines and issued directions to stop the misuse of the power of arrest by police officials. In none of the cases, did the court even think of repealing any of the provisions on the ground of misuse? Further, in Mafatlal Lal Industries Ltd. v. Union of India, a nine-judge bench of the apex court observed that the them possibility of abuse of a provision by those in charge of administering it cannot be a ground for holding a provision procedurally or substantively unreasonable. In a recent judgment, while dismissing a challenge to Section 18A of Scheduled Tribes (Prevention of Atrocities) Act, 1989, the Supreme Court observed that ‘presumption cannot be taken that provisions of the Act are misused by members of SC /ST as a class , just because a few are missing them.’ Therefore, in my opinion, misuse of law cannot be a ground for its annulment. Rather, measures should be taken to prevent misuse.
The other argument in favor of removing Section 124A is that the jurisprudence regarding speech has evolved in the country, and section 124A does not pass the muster of that. Shreya Singhal would be a sufficient touchstone to testify to the validity of the above claim. In the case of Shreya Singhal, Section 66A of the Information and Technology Act, 2000, was declared unconstitutional because it was in direct conflict with the fundamental right of freedom of speech and expression. The Supreme Court held that under the Constitutional scheme, for democracy to thrive, the liberty of speech and expression is a cardinal value and of paramount importance. The court further observed that three concepts are fundamental in understanding the reach of this [freedom of speech and expression] most basic of human rights. The first is discussion, the second is advocacy, and the third is incentive. Mere discussion or even advocacy of a particular cause, howsoever unpopular is at the heart of Article 19(1) (a). It is only when such discussion or advocacy reaches the level of incitement that Article 19(2) kicks in. It is at this stage that a law may be made curtailing the speech or expression that leads inexorably to or tends to cause public disorder or tends to cause or tends to affect the sovereignty & integrity of India, the security of the State, friendly relations with foreign States, etc.
It is important to note here that the court did realize that freedom of speech exercised beyond a limit that tends to incite disorder or tend to affect the sovereignty and integrity of India, security of State, etc., would be impermissible. Here again, the court recognized the right of the State for self-preservation against unwanted divisive forces.
The perusal of judgment establishes a qualitative difference between the application of Section 66A and Section 124A; hence, no parity should be drawn between section 66A and section 124A to seek the letter’s annulment as both operate in different spheres.
Conclusion
The limits of free speech are to be judged on the anvils of what amounts to reasonable restrictions in the backdrop of Article 19 Clause 2. In the Kedar Nath, the court concluded that the test of reasonableness is satisfied if you limit the scope of application of Section 124A to the situation where you made any statement that amounts to intensity of violence. Section 124A is a self-contained provision because it spells out what amounts to sedition and what is permitted in free speech. The restrictions contained in Section 124A in substance or effect are the same as contained in clause 2 of article 19. In my opinion, after receiving the judicial seal and interpretation of a constitution bench of the apex court of the country, it is not reasonable to say that Section 124A is a colonial provision, because what is being applied today in the form of Section 124A, is essentially the interpretation given by the court in 1962. Based on the aforementioned discussion it can be inferred that the provisions of section 124A do not suffer from any legal confirmation.
The Way Forward
The above discussions make it abundantly clear that Section 124A does not suffer from any legal infirmity. The problem, in my opinion, lies at the level of the executive ie police. One of the possible reasons could be attributed to the overlap between different provisions related to offenses against the State. In such a situation a certain amount of wisdom and understanding is required to conclude as to which providers need to be invoked in a given factual matrix. Hence, education and proper training of police officers are warranted. If we do not work on the real problem, the problem will remain the same, revocation would not help.
(Prabhat is a law undergraduate from Tamil Nadu National Law University, Trichy[2016-2021]. The author may be contacted via mail at [email protected])
Cite as: Prabhat Singh, ‘A CASE IN SUPPORT OF RETAINING SECTION 124A(Part-2)’ (The RMLNLU Law Review Blog24 July 2022)