The sedition law must go

Context: Recently, the Supreme Court directed the Union government and the states to refrain from using the law of sedition. In addition, the Supreme Court has also kept all previous cases under Section 124A of the IPC in abeyance till the matter is reconsidered in a comprehensive way.

Hence, it will be inappropriate to continue its use while the Supreme Court is re-examining its constitutionality.

What are the various court decisions regarding Section 124A?

Bal Gangadhar Tilak’s case (1897): The Privy Council declined to grant permission to appeal against an order of conviction and sentence by the High Court of Bombay.

The council affirmed that “disaffection” only meant “absence of affection in any degree towards the British rule or its administration or representatives”, and that exciting of mutiny or rebellion or actual disturbance of any sort was “absolutely immaterial”!

Niharendu Dutt Majumdar And Ors. vs Emperor: The Federal Court held that if the language of Section 124A were to be read literally “it would make a surprising number of persons in India guilty of sedition and that no one however supposes that it is to be read in this literal sense”.

It then declared that “the gist of the offence was public disorder or the likelihood of public disorder” (AIR 1942 FC 22), the decision in Tilak’s case remained unnoticed.

In 1947, the interpretation of Section 124A was reiterated by a Bench of five judges of the Privy Council in which it was declared that the Federal Court had proceeded on an “entirely wrong construction of Section 124A, and if the Federal Court had given their attention to Tilak’s case (1897) they should have recognised it as an authority… by which they were bound”.

With the advent of the Constitution of India on January 26, 1950, this interpretation of Section 124A became “the law in force immediately before the commencement of the Constitution”. It continued unaltered only because of the operation of Article 372 of the Constitution.

Article 372 stated that all laws in force in the territory of India immediately before the commencement of the Constitution shall continue in force therein until altered or repealed or amended by a competent legislature or other competent authority.

In 1955, the Supreme Court held that the words “laws in force made by a legislature or other competent authority in the territory of India” in Article 13(3) of the Constitution could only mean a legislative authority.

In 1962, a Constitution Bench of the Supreme Court held that though Section 124A “clearly violated” the fundamental right to freedom of speech and expression in Article 19(1)(a), it was not unconstitutional only because it was protected from challenge by the words “in the interests of public order” in Article 19(2).

Source: This post is based on the article “The sedition law must go” published in The Indian Express on 1st June 22.

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