Do we dare hope that sedition law will be struck down?

Rekha Sharma writes: Those who feel that such laws should remain on the statute book, with the Supreme Court laying down stricter guidelines, forget that previous guidelines have been ignored and the law misused.

Since April 6, when Justice M V Ramana took over as the 48th Chief Justice of India (CJI), we have seen a different Supreme Court (SC), one willing to stand by the people. Unfortunately, the tenures of the previous four CJIs were marred by controversies. People of all hues, including students, political rivals, journalists, social activists, members of the civil society, and farmers who spoke, wrote or staged dharnas against the government and its policies were arrested on trumped-up charges of sedition, or under the UAPA Act. The SC, during the aforesaid four chief justices’ tenure, accorded the least priority to habeas corpus and bail petitions filed by citizens, barring a few exceptions. Many of them are still languishing in jail. However, things seem to be changing for the better.

The present CJI, while issuing a notice to the Centre on a petition to quash the British-era sedition law contained in section 124A of the Indian Penal Code, has birthed hope in many hearts. Some of the other recent observations made by the CJI are music to the ears of those who cherish freedom. Delivering the Justice P D Desai Memorial Trust lecture on June 30, the CJI said “the move from a colonial past to the present required a shift from the colonial idea of laws imposed by foreign rulers for their benefit to laws given by our people to govern themselves, laws which are not merely commands but are also embodied by [a] sense of justice.” On July 17, while addressing an international audience at the India Singapore Mediation Summit, 2021, he said: “… people are confident that they will get relief and justice from the judiciary… they know that when things go wrong, the judiciary will stand by them”. These are reassuring words, and it is hoped that the Chief Justice will walk the talk.

The constitutional validity of the law of sedition was examined by a five-judge bench of the SC in 1962 in Kedar Nath Singh vs. State of Bihar. Although the SC upheld the constitutional validity of the law, it observed that criticism of political 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. Much water has flown under the bridge since the Supreme Court last spoke on the subject. In today’s India, anything spoken or written against the government of the day is viewed with cynicism and treated as equivalent to creating public disorder, disturbance of law and order, and causing disaffection among different religions and communities. People who are critical of the state or are not in sync with the ideology of the state are booked under the draconian sedition law and the UAPA Act, notwithstanding the observation of the SC in Kedar Nath.

Those who feel that such laws should not be struck down but remain on the statute book, with the Supreme Court laying down stricter guidelines, perhaps, forget that guidelines were laid down in 1962 too, and yet the law is misused. Of course, the final word has to come from the Supreme Court, but a good beginning has been made by the bench of the Chief Justice in agreeing to revisit the efficacy of retaining such a law on the statute book.

We, as a nation, failed 84-year-old undertrial Stan Swamy, who was suffering from multiple ailments, and who died having faced insensitivity at all levels. But there are many Stan Swamys in a similar predicament. It is nobody’s case that all such persons should be let off on bail, but the SC must consider passing directions to the concerned courts to dispose of such cases on a priority basis in a timebound period of not more than six months.

Today, the freedom of the individual is under threat as never before. An FIR naming actress Swara Bhaskar, and journalists Mohammad Zubair, Rana Ayyub, Saba Naqvi and others, was recently registered in Ghaziabad for circulating a video in which an elderly Muslim man is being thrashed and asked to chant Jai Shri Ram. Is this the India of Tagore’s dream, who hoped for a haven of freedom “where the mind is without fear, and the head is held high”? The Chief Justice has rekindled some of those hopes.

This column first appeared in the print edition on July 20, 2021 under the title ‘Rekindling hope’. The writer is a former judge of the Delhi High Court

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