Sedition, defamation charges cannot be invoked for criticism: Supreme Court

The observation came as Advocate Prashant Bhushan, appearing for an NGO, said sedition was a serious offence and the law on it was being grossly misused for stifling dissent.

PTI | New Delhi | Published:September 5, 2016 5:11 pm

The court, while disposing of a petition filed by NGO Common Cause alleging misuse of the sedition law, refused to pass a direction on the plea that a copy of this order be sent to all Chief Secretaries of states and the DGPs. (File Photo)

Sedition or defamation cases cannot be slapped on anyone criticising the government, the Supreme Court on Monday said in a clear message.

“Someone making a statement to criticise the government does not invoke an offence under sedition or defamation law. We have made it clear that invoking of section 124(A) of IPC (sedition) requires certain guidelines to be followed as per the earlier judgement of the apex court,” a bench of Justices Dipak Misra and U U Lalit said while refraining from saying anything further on the issue.

The observation came as Advocate Prashant Bhushan, appearing for an NGO, said sedition was a serious offence and the law on it was being grossly misused for stifling dissent. He cited the examples of sedition charges being slapped on agitators protesting against Kudankulam Nuclear Power Project and cartoonist Aseem Trivedi, among others.

To this, the bench said “we don’t have to explain the sedition law. It’s already there in the five-judges constitution bench judgement in Kedar Nath Singh vs state of Bihar of 1962.” The court, while disposing of a petition filed by NGO Common Cause alleging misuse of the sedition law, refused to pass a direction on the plea that a copy of this order be sent to all Chief Secretaries of states and the Directors General of Police.

“You have to file separate plea highlighting if any misuse of sedition law is there. In criminal jurisprudence, allegations and cognisance have to be case specific, otherwise it will go haywire. There can’t be any generalisation,” the bench said. Bhushan said law has not been amended after the Kedar Nath Singh judgement by the apex court and a constable does not understand the judgement but what he understands is the section in the IPC.

“Constables don’t need to understand. It is the magistrate who needs to understand and follow the guidelines as laid down by the apex court while invoking sedition charges,” the apex court said. The court was hearing a plea seeking the apex court’s intervention to address the “misuse” of section 124 A of the IPC contending that such a charge was being framed with a view to “instill fear and scuttle dissent”.

Source: indianexpress

Dear PM Modi, if challenging status-quo is sedition, I too am guilty!

Dear PM Modi, It is treasonous to not pay attention to the needs of poverty-stricken children while pretending to be patriots jailing university students for 'ant national' slogans.

Written by Ujjal Dosanjh | Published:March 15, 2016 9:29 am

To my mind, what is most anti-national is to not see, acknowledge and eradicate this grinding poverty of India. Reuters

I am feeling “seditious”. I am. I am in India, my motherland, the land of my ancestors. I can literally feel the centuries of Indianness coursing through my veins. Though the arms I think of are of the peaceful variety yet it is impossible to escape the call of my conscience to arms.

From India I have been following the events surrounding the JNU and the allegations of ‘sedition’ and ‘anti-national’ being thrown about so recklessly. There can’t be any real danger to the world’s largest, well grounded and enduring democracy from some students shouting what may or may not have been irresponsible slogans. India is not some airy fairy place that is going to be torn asunder just because some students talk about whether Afzal Guru’s hanging was legally proper and just.

No one has the right to dictate what thoughts one can think or articulate even if they may be questionable in their very essence or how they are crafted including those that may cast doubt on the legal propriety of Afzal Guru’s hanging by India.
I have no time for any one picking up a gun to kill or attempt to kill any one let alone the parliamentarians of Indian democracy that Afzal Guru’s alleged associates did. And I have no time for those who glorify others such as Nathuram Godse who, in liberated India, killed the undisputed leader of the freedom movement.

One could call those who glorify Guru or Godse or others like them misguided, gone astray or completely wrong. But in a true democracy they have a right to be misguided, wrong or to be led astray. To call them seditious is to cheapen true patriotism and think India weak and believe that it will readily crumble under the weight of sloganeering by students at universities.

I would urge the self styled definers of “patriotism” and “nationalism” in India to stop constraining individual freedoms and start worrying about students at its universities turning into book worms who never read a newspaper, shout a slogan or attend a demonstration to change the country. If all the students become solely preoccupied by the marks they get at universities and how big their pay packets might be, in the end India will be a much lesser country and certainly not the country of the dreams of its freedom fighters.

A degree of sedition and subversion, in other words an undermining and challenging of the status quo, is inherent in any movement for change. In that sense, RSS is subversive as it wants to change the nature of Indian state and so are all the political parties worth their name who have differing visions of India. If they intend no subversion of the extant reality — the status quo — then they have no business in politics unless they are in the business of massaging their own egos or plundering the country.

As I write this column on the train from Delhi to Phagwara, I occasionally lift my sights away from the keyboard of my computer and see acres and acres of wheat and other green crops in the vastness of Haryana and Punjab. I also see the poverty in the shanties and jhuggies lining both sides of the railway tracks. The surroundings of these dwellings, if one could at all call them dwellings, are littered with runaway plastic and other garbage. There are small ponds, puddles and sewers of waste, mainly dirty water mixed and polluted with all manner of waste both human and animal. This is where a significant part of the future of India lives — in those shanties, in the midst of that plastic, human and animal waste and the sewers of stench. This is where the children of the shanties play and grow up. None of it seems at all touched by the Swachch Bharat or any other grand schemes or plans of state or central governments past or present.

To my mind, what is most anti-national is to not see, acknowledge and eradicate this grinding poverty of India.

This is the kind of extreme poverty that is everywhere in India. It lives alongside and in sight of the extreme wealth. Those half naked children playing in front of and around the shanties are what the government should worry about instead of the students at universities shouting slogans mildly subversive of the status quo. Those children, dressed in rags, play and live — no, I must say exist — right next to cows and other animals chewing gobs of plastic as they graze on the patches of dying grass littered with the ubiquitous garbage all over India. One day they are going to — and they must if India is to have any hope of change — grow up and join the university students such as Kanhaiya and Khalid to subvert the status quo that has kept them and their parents in such extreme poverty.

Prime Minister Modi, here is the naked truth:

It is treasonous to not pay attention to the needs of these children while pretending to be patriots jailing university students for ‘ant national’ slogans;

It is not seditious to shout anti government slogans;

The BJP government is not India. For that matter no government ever is or has been India despite Indira Gandhi and her sycophants once believing so and imposing the hated Emergency in what they claimed was national interest;
It is sedition pure and simple, Prime Minister Modi, for the governments of post independence India to have allowed poverty to remain at alarming levels, to allow corruption and communalism to grow and to enable all three to have a deadly strangle hold over the country.

And, Prime Minster Modi, I have harboured and expressed these thoughts all my life. Being forthright and honest is sedition too in the eyes of the defenders of the status quo. I do not believe one whit in the status quo in India on caste, communalism, poverty and corruption. Therefore I must plead guilty to being seditious and subversive.

On behalf of those children I saw playing outside their shanties on both sides of the railway tracks and hundreds of millions of other poor Indian children I CHARGE ALL GOVERNMENTS OF INDIA SINCE 1947 WITH SEDITION FOR BETRAYING THEM–A CRIME far more serious than some angry slogans of a few angry students.

And yes! For levelling the charge of SEDITION so publicly against all Indian governments to-date I may be, according to the newer and twisted definition of sedition, GUILTY of SEDITION /SUBVERSION — take your pick.

Views expressed by the author are personal.

Source: indianexpress

How free can free speech be?

Opinion » Comment    February 28, 2016    Updated: February 28, 2016 01:09 IST

    K. Venkataramanan

Illustration: Satwik Gade

A lucid and detailed examination of the law of free speech in India, the book also makes a case for ‘constitutionalising’ all forms of speech.

A decade ago, Tamil Nadu was as agog about a looming threat to freedom of speech and a pervasive atmosphere of intolerance as the entire country is at the moment. Assorted groups of Tamil nationalists, protectors and preservers of Tamil culture were policing the opinions of public figures, especially from the film industry. Open threats, street demonstrations and waving of footwear and broomsticks indicated that supposedly offended Tamil society was out to protect its culture from prurient attacks. Actor Khushboo was one of the main targets after she made some remarks in a magazine interview on the prevalence of premarital sex. Nearly two dozen criminal cases were filed across Tamil Nadu by offended complainants charging her with obscenity. The final outcome in her favour in the Supreme Court five years later was a landmark decision on obscenity law.

Reasonable restrictions

Shortly after the controversy broke out in 2005, a public opinion forum for the free exchange of views and ideas was launched in the State, with a rider that the forum’s promoters themselves would not privilege one view over another, and there was no founding philosophy except a general commitment to freedom of expression. “There is no collective policy for the forum, and it will not even publicly defend freedom of expression, as its users need not necessarily be only those who believe in free speech,” they said. It was quite an interesting way to promote freedom of expression — by acknowledging individual autonomy to the point of not expecting its users to even believe in that very freedom.

Does the state acknowledge such autonomy among its citizens and repose faith in them to make their own choices regarding speeches, writings, works of art, films and plays? Obviously not, given the number of “reasonable restrictions” that are placed on free speech in India, many of them reflecting an official philosophy that believes that the government alone can, or at least has a duty to, decide what is ‘good’ for the people. Hence, the many restrictions on expression based on, among other grounds, public order, decency and morality. Gautam Bhatia would classify such curbs as instances of ‘legal paternalism’ or ‘legal moralism’. For, according to this author of a lucid and detailed examination of the law of free speech in India (Offend, Shock, or Disturb: Free Speech under the Indian Constitution, Oxford University Press, Rs.750), Indian freespeech jurisprudence has two broad approaches — ‘moral-paternalistic’, a view that sees people as inherently corruptible and prone to violence and who cannot be trusted with too much freedom, and ‘liberal-autonomous’, an approach that sees people as individuals capable of making decisions on their own lives and one that allows only limited restrictions on what they can speak, see or hear.

Does not our Constitution guarantee all of us freedom of speech and expression? If both freedom and its curtailment are in an everlasting delicate balance, what exactly is our free speech philosophy? If freedom is related to politics and democracy, does it come under political philosophy? Or is it moral philosophy concerning the individual and the human self? “We need a theory, or theories of free speech,” says Bhatia. The theoretical framework for his analysis of the evolution of free speech jurisprudence covers a vast expanse. Free speech is a means to the truth; a pursuit of individual self-fulfilment and an important means by which democratic self-governance is made possible, he argues. Its role in personal, social and political life inevitably brings it into conflict with the state, with diverse shades of opinions in the marketplace of ideas and the ways in which free expression impacts the established order.

The title may suggest that the author is arguing for an extreme view of free speech: as the right to do all that these three verbs encompass, but in actuality he is doing something far more nuanced. He is arguing for ‘constitutionalising’ all forms of speech; that is, making as much of the law speech-protective as possible, and what little is incapable of protection must be curbed only in a manner allowed by the Constitution. To put it differently, if some restrictions are inevitable, their basis should be sought only within the values of the Constitution, or in ‘constitutional morality’, as he puts it, and not in vague appeals to transient notions of social mores, decency and morality. For instance, a restrictive hate speech law or one that seeks to protect an oppressed community from insult need not derive its constitutionality from a mere content-based view of the ‘feeling of hurt’ caused by some words or images. Rather, it could be rooted in a notion of moral equality among citizens, and with reference to women, from the angle of prohibition of gender subordination.

Historical context

Many will be familiar with the basic formulation of free speech in India as a set of freedoms matched by a set of reasonable restrictions. However, not many may know that this was not the original framework. The early judgments on Article 19(1)(a) were too speech-protective for the rulers’ comfort, and the ‘reasonable restrictions’ were introduced through the first amendment. It is equally interesting to learn that one of the grounds for curbing free speech was ‘sedition’ in an early draft, drawing derisive comments from some members of the Constituent Assembly. Sardar Patel, who chaired the Fundamental Rights Sub-Committee, moved for the deletion of the proviso the very next day. However, the word ‘sedition’ made a mysterious comeback in the draft Constitution in 1948. Once again, it required quite a fight from members to get the proviso withdrawn. Thereby hangs a tale of how rulers, colonial or democratic, have always wanted to retain the power to prosecute for sedition.

If one wants to know the working of the law related to dominant free speech issues such as public order, morality, obscenity, film censorship, defamation, sedition, press freedom and Internet curbs, this book will not only provide valuable historical insight, but also the standard tests that courts use to determine the validity of such restrictions. Thus, you can see the shift from the original standard for obscenity of ‘a tendency to deprave or corrupt’ a person susceptible to prurient taste (Ranjit Udeshi, 1965) to more modern ‘contemporary standards that reflect the sensibilities as well as the tolerance level of the average reasonable person’ (Khushboo v. Kanniammal, 2010). “... In the long run, such communication prompts a dialogue within society wherein people can choose to either defend or question the existing social mores,” the Supreme Court said, while quashing all the complaints against Khushboo.

Bhatia suggests that applying some of the recent principles in free speech jurisprudence, there is a clear case to strike down the penal section on sedition to cases, as indeed two high courts had done before the Supreme Court upheld Section 124A in 1962. The Punjab and Haryana High Court had applied the classic test of ‘overbreadth’ (a provision so ‘overbroad’ that promoting disaffection is criminalised both when it would lead to a public order breach — a permissible restriction — and when it would not) and held that it was unconstitutional.

The ‘chilling effect’ of excessive curbs such as the threat of exorbitant awards as damages for defamation, the casual resort to a ‘decency or morality’ standard based on a section of public opinion, or succumbing to the threat of violence by a purported offended section of society — popularly called the ‘heckler’s veto’ — are issues that all citizens should familiarise themselves with. For often, what is at stake is not merely the freedom of political activists, writers and journalists alone, but that of every citizen, voter or resident.

venkataramanan.k@thehindu.co.in

Source: thehindu