Context

Justice Deepak Gupta, a sitting judge of the Supreme Court, noted how the provision in the IPC provides for punishment for seditious speech is misused often than not. He wondered whether the time is ripe to have a relook at the law.

Freedom of speech

• Article 19(1)(a) of the Constitution guarantees freedom of speech and expression.

• It is subject only to Article 19(2) which saves any law that imposes “reasonable restrictions” on the limited grounds of interests of the sovereignty and integrity of India, the security of the state, friendly relations with foreign states, public order, decency or morality or in relation to contempt of court, defamation etc.

Sedition Law

• Section 124A of the IPC defines sedition. It makes every speech that “brings or attempts to bring into hatred or contempt or excites or attempts to excite disaffection towards the Government” a criminal offence.

• Such an offence is punishable with a maximum sentence of life imprisonment. 

• It is classified as “cognisable” — the investigation process can be triggered just by filing an FIR. A judicial authority need not have to take cognisance.

• It is also “non-bailable” — the accused cannot get bail as a matter of right, but is subject to the discretion of the sessions judge.

• An explanation to the provision clarifies that mere “disapprobation of the administrative or other action of the Government without exciting or attempting to excite hatred, contempt or disaffection, do not constitute an offence under this section.

• A five-judge constitution bench decision of SC in Kedarnath v. State of Bihar (1962) read down Section 124A to mean that only those expressions that either intend to or have the tendency of causing violence are punishable under Section 124A. 

• The Court reiterated the Kedarnath law in 2016 in Common Cause v. Union of India and directed all authorities to follow the Kedarnath dictum. 

Scope of Fundamental Rights expanded

• The jurisprudence of fundamental rights was expanded through several decisions in R C Cooper v. Union of India (1969), Indira Gandhi v. Raj Narain (1975), Maneka Gandhi v. Union of India (1978), I.R. Coelho v. State of Tamil Nadu (2007) and, in Puttaswamy v. Union of India (2017). 

• Each of these decisions establishes that fundamental rights in the Constitution are not to be read as isolated silos but are to be read as if the content of each fundamental right animates the other. 

• They tell us that the entire chapter on fundamental rights has also to be read “synoptically”. 

Kedarnath judgement – limitations and expanding jurisprudence

• In Kedarnath case, the court merely tested the intent of the provision under the exceptions to the freedom of speech under Article 19(2) of the Constitution. It did not take into consideration the effect of the right to equality (Article 14) or due process (Article 21).

• Reading of Articles 14, 19 and 21 has evolved jurisprudence of testing legislation curtailing fundamental rights on substantive and procedural reasonableness, necessity and proportionality. 

• The requirement of “necessity” comes from India ratifying the International Covenant on Civil and Political Rights in 1976. 

• Article 19 of the ICCPR requires speech-limiting state action to be backed by law and to be necessary on the grounds of respect for the rights and reputations of others, national security etc. 

• Court also did not examine the provision for “chilling effect” on speech it causes. State action causing psychological barriers in the free exercise of the right to free speech.

• Only in 2018 (Navtej Johar v. Union of India), the court found that pre-constitutional legislation have no legal presumption of constitutionality. 

Way ahead

• The new thought focuses on understanding “necessity” of state action limiting fundamental freedoms.

• The burden is on the state to establish that such a limiting measure is “necessary in a democratic society” 

• “Proportionality” should inform the understanding of “reasonableness” of restrictions in Article 19.