Maj Gen (Retd) S G Vombatkere said a statute criminalising expression based on unconstitutionally vague definitions of “disaffection towards government” was an unreasonable restriction on the fundamental right to free expression guaranteed under Article 19(1)(a) and causes constitutionally impermissible “chilling effect” on speech.
The PIL is noteworthy because dissent is an intrinsic part of democracy. Recently, an SC judge too had observed that tough laws cannot be used as means to curb dissent. The SC is rightly taking a close look at the section’s validity and examining whether it needs to be tweaked to minimise the potential for its misuse.
A bench of Chief Justice N V Ramana and Justices A S Bopanna and Hrishikesh Roy asked Vombatkere’s counsel P B Suresh to give a copy of the PIL to the AG and posted the matter for fresh hearing on Thursday.
The petitioner said the five-judge Constitution bench of the SC’s 1962 judgment in the Kedar Nath case upholding the validity of sedition provision was rendered in an era when the apex court was conservative in interpreting the ambit of fundamental rights. He said the fundamental rights, especially the right to free speech and right to life, are given a wide meaning in many subsequent landmark judgments.
Vombatkere, who supported agitation by farm unions against agricultural laws, said the right to free speech and expression got wings with the advent of social media allowing citizens to freely express opinion for and against the government. The SC never had an opportunity, in the era of transparency and openness, to examine the constitutional validity of Section 124A of IPC, which is now often used to silence dissent, he said. Vombatkere had also unsuccessfully challenged the validity of Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Act, 2016 being passed as a Money Bill by Parliament.
“The SC in Kedar Nath case upheld the validity of the impugned provision and ruled that the very existence of the state will be in jeopardy if the government established by law is subverted. The impugned provision, however, was read down to mean that only those expressions that either intend to or have the tendency of causing violence are punishable. Despite the reading down, the continued employment of the charge of sedition to silence dissent continued undeterred and has been taken judicial notice of. This prompted the SC to reiterate the Kedar Nath law in 2016 in Common Cause case, directing all authorities to scrupulously follow the Kedarnath dictum.”
“The SC has, however, not had a chance to reopen the issue of constitutionality of the impugned provision since 1962. The march of the times and the development of the law has to be taken into account in dealing with such a question now, unconstrained by the Kedar Nath ruling,” he said adding that the Kedar Nath reasoning has to be understood in the context of an era when “the reading of fundamental rights was rather restrictive”.
In 1962, a five-judge SC bench had upheld the constitutional validity of Section 124A but caveated it by saying, “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. When so construed, the section, in our opinion, strikes the correct balance between individual fundamental rights and the interest of public order,” the SC had said.
Two more petitions by Kishorechandra Wangkhemcha from Manipur and Kanhaiya Lal Shukla from Chhattisgarh, both of whom have been booked under Section 124A for allegedly objectionable social media posts, have also challenged the validity of the provision and a three-judge bench of SC has already entertained it.