"Sedition Law Most Abused Today, Criticism Against Govt In Power Does Not Make Any One Less Patriotic": Justice Deepak Gupta

Addressing the lawyers at a workshop organised by Praleen Public Charitable Trust at Ahmedabad, Justice Deepak Gupta of the Supreme Court spoke at length on the topic "Law of Sedition in India and Freedom of Expression".

In his speech, Justice Gupta said dismally;

"The art of conversation is itself dying down. There is no healthy discussion; there is no advocacy on principles and issues. There are only shouting and slanging matches. Unfortunately, the common refrain is either you agree with me or you are my enemy, or worse, an enemy of the nation, an anti-nationalist".

"In a secular country, every belief does not have to be religious. Even atheists enjoy equal rights under our Constitution. Whether one is a believer, an agnostic or an atheist, one enjoys complete freedom of belief and conscience under our Constitution. There can be no impediments on the aforesaid rights except those permitted by the Constitution".

He recognised the importance of right to disagree, stating that;

"As long as a person does not break the law or encourage strife, he has a right to differ from every other citizen and those in power and propagate what he believes is his belief".

He cited the dissenting judgment of Justice H. R. Khanna in A.D.M. Jabalpur v. Shivkant Shukla, (1976) 2 SCC 521, which ultimately turned out to be much more valuable than the majority opinion.

"The right to dissent is one of the most important rights guaranteed by our Constitution. As long as a person does not break the law or encourage strife, he has a right to differ from every other citizen and those in power and propagate what he believes is his belief. The judgment of H. R. Khanna, J. in A.D.M. Jabalpur case, is a shining example of a dissent which is much more valuable than the opinion of the majority. This was a judgment delivered by a fearless, incorruptible Judge. Judges are administered oath wherein they swear or affirm to perform the duties to the best of their ability without fear or favour, affection or ill will. First and foremost part of the duty is to do one's duty without fear".

"A very important aspect of a democracy is that the citizens should have no fear of the government. They should not be scared of expressing views which may not be liked by those in power. No doubt, the views must be expressed in a civilised manner without inciting violence but mere expression of such views cannot be a crime and should not be held against the citizens. The world would be a much better place to live, if people could express their opinions fearlessly without being scared of prosecutions or trolling on social media. It is indeed sad that one of our celebrities had to withdraw from social media because he and his family members were trolled or threatened of dire consequences"

He apprised the crowd that the law of Sedition was introduced in India during the British rule, credibly to silence the voice of rebels. While they maintained that the provision was to curb people from inciting use of force, it was manifestly used to curb legitimate dissent or any demand for independence

In fact, the word 'sedition' was attributed a very wide meaning in the case of Queen Empress v. Balgangadhar Tilak, ILR (1898) 22 Bom. 112. "Whether any disturbance or outbreak was caused by these articles, is absolutely immaterial. If the accused intended by the articles to excite rebellion or disturbance, his act would doubtless fall within section 124A", it was held therein.

Disapproving this view he stated;

"Mere criticism without incitement to violence would not amount to sedition". Recalling the words of Mahatma Gandhi, he quoted "Affection cannot be manufactured or regulated by law. If one has no affection for a person or system, one should be free to give the fullest expression to his disaffection, so long as he does not contemplate, promote or incite to violence".

Justice Gupta went on to say that

"You cannot force people to have affection for the Government and merely because people have disaffection or strongly disagree with the views of the Government or express their disagreement in strong words, no sedition is made out unless they or their words promote or incite or tend to promote or incite violence and endanger public order".

He said that the founding fathers of the Constitution did not include sedition as an exception to the right to free speech under Article 19 of the Constitution, as they were that sedition could be an offence only if it led to or incited public disorder or violence.

"Only incitement to violence or insurrection should be barred and, therefore, exceptions to Article 19 do not contain the word 'sedition' but security of State, public disorder or incitement to an offence", he added.

In fact, in Kedar Nath Singh v. State of Bihar, 1962 Supp 2 SCR 769, the Supreme Court had held that Sedition charges could not be leveled only for criticizing the Government or its policies. A case under Section 124A could be made out only if the words – spoken or written, had the tendency to create disorder or disturbance of public peace by resort to violence.

On a careful scrutiny of this judgment, Justice Gupta said

 "...it is apparent that if creation of disorder or disturbance of law and order or incitement to violence had not figured, the Constitution Bench may have in all likelihood, struck down Section 124A. It was held to be constitutional only when read in the context of incitement to violence or creating public disorder or disturbing law and order".

Talking about the arrest of cartoonist Asim Trivedi in 2011 he propounded;

"I think our Country, our Constitution and our National Emblems are strong enough to stand on their own shoulders without the aid of the law of sedition. Respect, affection and love is earned and can never be commanded. You may force or compel a person to stand while the National Anthem is being sung but you cannot compel him within his heart to have respect for the same. How does one judge what is inside a person's mind or in his heart?"

He was not reluctant to express his disappointment on the 1974 amendment to Section 124A, which made it a cognizable offence

"For me, it is very shocking that in independent India we should make the provisions with regard to sedition even more stringent and curb the voice of the people".

He stated that though the government was entitled to govern, it could not be said to be a representative of the voice of all the people since the Indian government usually does not have an unequivocal majority and it follows the "first past the post principle".

The constitutional validity of Section 124A has to be read in the context of Article 19 of the Constitution of India. Thus, it is clear that advocating any new cause however unpopular or uncomfortable it may be to the powers that be, it must be permitted. Majoritarianism cannot be the law. Even the minority has the right to express its views. We must also remember that in India we follow the first past the post principle. Even Governments which come in with a huge majority do not get 50% of the votes. Therefore, though they are entitled to govern or be called as majority, it cannot be said that they represent the voice of all the people. There is another very important aspect of this interplay between freedom of expression and the law of sedition, and here I would also discuss the offence of creation of disharmony under Section 153A and criminal defamation under Section 499-500 IPC. Sedition can arise only against a Government established by law. Government is an institution, a body and not a person. Criticism of persons cannot be equated with criticism of the Government.

During the dark days of Emergency, an attempt was made by one Party President to equate his leader with the country. That attempt miserably failed and, I am sure that no one will ever try in future to equate a personality with this country of ours which is much bigger than any individual. Criticism of senior functionaries may amount to defamation for which they can take action in accordance with law but this will definitely not amount to sedition or creating disharmony.

He also clarified that criticism of senior functionaries of the government may amount to defamation under Section 499-500 IPC but with no stretch of imagination could it amount to the offence of creation of disharmony under Section 153A or Sedition.

"Sedition can arise only against a Government established by law. Government is an institution, a body and not a person. Criticism of persons cannot be equated with criticism of the Government." However, he was pained by the misuse of these provisions by those in power.

"The manner in which the provisions of Section 124A are being misused, begs the question as to whether we should have a relook at it. Freedom of expression being a constitutional right must get primacy over laws of sedition", he said.

Citing examples of arrests under Section 66A of the IT Act, 2000, despite it being struck off by the Apex Court, he said

"It does not speak well of the Indian judiciary that the magistrates are unaware of the law of land and day in and day out we hear of magistrates granting judicial custody or police remand in relation to such offences wherein the basic offences are not made out and under Section 66A of the Information Technology Act, a law which is no longer valid."

Then suggesting that the law of sedition needed reconsideration, he said

"India is a powerful nation, loved by its citizens. We are proud to be Indians. We, however, have the right to criticise the Government. Criticism of the Government by itself cannot amount to sedition. In a country which is governed by the rule of law and which guarantees freedom of speech, expression and belief to its citizens, the misuse of the law of sedition and other similar laws is against the very spirit of freedom for which the freedom fighters fought and gave up their lives".,

"The shoulders of those in power who govern should be broad enough to accept criticism. Their thinking should be wide enough to accept the fact that there can be another point of view...The people in power must develop thick skins. They cannot be oversensitive to people who make fun of them. In a free country, people have a right to express their views. Everybody may not use temperate or civilised language. If intemperate, uncivilised and defamatory language is used, then the remedy is to file proceedings for defamation but not prosecute the persons for sedition or creating disharmony".

"I think our Country, our Constitution and our National Emblems are strong enough to stand on their own shoulders without the aid of the law of sedition. Respect, affection and love is earned and can never be commanded. You may force or compel a person to stand while the National Anthem is being sung but you cannot compel him within his heart to have respect for the same. How does one judge what is inside a person's mind or in his heart?"

Gurudev Rabindra Nath Tagore had a view on nationalism, which is the anti-thesis of the view which many of us have. He, in fact, had not appreciated the satyagrah movement. He, who wrote the National Anthem also held the view that "nationalism is a great menace". I do not agree with those views nor did eminent leaders of that time but this did not make Gurudev Rabindra Nath Tagore less an Indian, less a patriot than any of his contemporaries. Merely because a person does not agree with the Government in power or is virulently critical of the Government in power, does not make him any less a patriot than those in power. In today's world, if any person was to say "nationalism is a great menace" he may well be charged with sedition.

Criticism against Judiciary

"The judiciary is not above criticism. If Judges of the superior courts were to take note of all the contemptuous communications received by them, there would be no work other than the contempt proceedings. In fact, I welcome criticism of the judiciary because only if there is criticism, will there be improvement. Not only should there be criticism but there must be introspection. When we introspect, we will find that many decisions taken by us need to be corrected. Criticism of the executive, the judiciary, the bureaucracy or the Armed Forces cannot be termed sedition. In case we attempt to stifle criticism of the institutions whether it be the legislature, the executive or the judiciary or other bodies of the State, we shall become a police State instead of a democracy and this the founding fathers never expected this country to be".

Justice Gupta dedicated his speech to former Chief Justice of the Himachal Pradesh High Court, Justice Prabodh Dinkarrao Desai. He said that Justice Desai was a fearless personality who believed in doing the right things by using law as an instrument for social change.

Read the Full Text of Speech Here