Outdated, Vague, Chilling: Why Sedition May Meet Its End in the Supreme Court

Here are the key arguments made in the petitions being heard in the SC from 5 May onwards.

If a law has already been upheld as constitutional by the Supreme Court, is there really a point in challenging it in the court again?

That is a question that the multiple petitioners who have challenged India's sedition law in the apex court have had to consider.

After all, back in 1962, in Kedar Nath Singh vs State of Bihar, the Supreme Court had held that Section 124A of the Indian Penal Code – which defines and sets out the punishment for sedition – was constitutional and could remain part of the law.

This was not just some casual oral observation by the court, but a judgment by a five-judge Constitution Bench, which has been considered binding in multiple cases over the last 60 years.

So, why have a retired Army Major General, the Editors Guild of India, as well as a veteran journalist and former Union Minister (among others) decided to take the matter up in the Supreme Court again?

The petitions have a common thread running through them, about how the Kedar Nath Singh judgment is no longer good law, and that subsequent developments in the Supreme Court have overturned the reasoning used by it in 1962 to uphold Section 124A.

When all these subsequent developments are considered, they argue, then the offence of sedition can no longer be considered constitutional, and therefore, needs to be struck down.

With the Supreme Court set to hear the challenges from 5 May onwards, here are the key grounds for reconsidering the law on sedition made in the petitions by Major General SG Vombatkere, the Editors Guild, and Arun Shourie, which if accepted by the judges, could lead to the end of sedition in India.

No Presumption of Constitutionality When It Comes to Pre-Independence Laws

An almost preliminary point that the courts have to consider in any judicial review of a law is the doctrine of presumption of constitutionality.

The courts are not supposed to approach a challenge to a law from the point of view that the law is unconstitutional and the legislature needs to justify how it has enacted the law.

Instead, the courts have to see if the law violates specific constitutional provisions, and if there is a way to interpret the law that renders it constitutional, then it should apply that interpretation to the law.

This principle was followed by the Supreme Court in 1962 in the Kedar Nath Singh judgment. In para 26, it notes that there are two ways to interpret Section 124A of the IPC.

Under one interpretation, any words or action that "brings or attempts to bring into hatred or contempt, or excites or attempts to excite disaffection towards, the Government estab­lished by law in India" would amount to sedition. This is the literal interpretation that would arise from the plain wording of Section 124A, which the court acknowledged would be a clear violation of Article 19(1)(a).

Then there is the other interpretation of Section 124A, which says that any such words or actions must have a tendency to disorder or an intention to disturb law and order – i.e., bringing in a threat to public order, even though Section 124A says nothing about public order.

According to the 1962 judgment,

"It is well settled that if certain provisions of law construed in one way would make them consistent with the Constitution, and another interpretation would render them unconstitutional, the Court would lean in favour of the former construction. The provisions of the sections read as a whole, along with the explanations, make it reasonably clear that the sections aim at rendering penal only such activities as would be intended, or have a tendency, to create disorder or disturbance of public peace by resort to violence."

This was how the apex court is able to uphold Section 124A's constitutionality and keep it on the statute books, even though it clearly affects the right to freedom of speech.

As pointed out in the petitions by Arun Shourie as well as SG Vombatkere, however, the doctrine of presumption of constitutionality does not apply to pre-Constitution laws.

Laws drafted by Parliament after the coming into force of the Constitution have the benefit of the fundamental rights being known to Parliament. However, a law that was drafted by a colonial power before the Constitution came into being cannot possibly have kept those considerations in mind.

While this may seem a fairly obvious point, it has only been acknowledged in more recent times, notably in Justice Rohinton Nariman's opinion in the Navtej Johar case (where a 5-judge bench of the court decriminalised consensual homosexual acts), and in the Joseph Shine case (where the court struck down the offence of adultery).

Without the presumption of constitutionality, it is not necessary for a court to apply an interpretation of the law that would render a particular provision constitutional, when the wording of the law says something else.

As Arun Shourie's petition argues,

"There is no scope for reading words into Section 124A of Indian Penal Code, 1860, contrary to its plain and unambiguous meaning and the section must be declared to be unconstitutional on the basis of its plain and unambiguous meaning especially when the legislative intent was to suppress dissent"

Fundamental Rights Are Not Isolated Silos

The next key ground to argue that the Kedar Nath Singh judgment is no longer good law is the landmark decision of the Supreme Court in 1970 in the RC Cooper case (also known as the Bank Nationalisation case), which changed the way the court looked at fundamental rights.

Previously, the apex court had adopted a narrow approach to examining whether a fundamental right was being affected by a particular law.

In Kedar Nath Singh for instance, the fundamental right in question was considered to be the right to freedom of speech under Article 19(1)(a). To assess whether the offence of sedition was constitutional, therefore, the court looked to the legislature's ability to impose reasonable restrictions on this right under Article 19(2).

Since Article 19(2) allowed reasonable restrictions in the interest of public order, the court held that Section 124A could be constitutional if it were interpreted to mean that it can only be invoked where there was a threat to public order, through the incitement of violence.

In keeping with the understanding of fundamental rights jurisprudence in 1962, it did not examine whether the offence of sedition was constitutional in light of other fundamental rights, such as Article 14 (equal treatment before the law) or Article 21 (the right to life and personal liberty).

In the RC Cooper case eight years later, however, an 11-judge bench of the Supreme Court held that this approach had to change, a position refined over the years in cases such as the Maneka Gandhi case in 1978 and the Puttaswamy (right to privacy) case in 2017.

As argued in Major General (retd) SG Vombatkere's petition,

"Each of these decisions now establish that fundamental rights in the constitution are not to be read as isolated silos or as water-tight compartments; but are to be read as if the content of each fundamental right animates the other."

While this may seem a trivial point, the change in approach has significant consequences.

Instead of having to only look at Article 19(2) and seeing if sedition can be justified as a reasonable restriction under it, the apex court now would also have the ability to see if the law violates the substantive and procedural due process requirements under Article 21, including the doctrine of proportionality.

They can also see if the law is manifestly arbitrary because of vagueness, which would render a law violative of Article 14 of the Constitution.

Back in 1962, these considerations were unavailable to the court when deciding the Kedar Nath Singh case, but now they are crucial aspects of fundamental rights jurisprudence.

Sedition Is Vague & Overbroad, Has Chilling Effect

When we look at the language of Section 124A, one of the things that becomes very clear is that it is absolutely not clear.

Section 124A goes as follows:

What exactly is "hatred" towards a government? We know what contempt of court is, but what is "contempt" towards a government? And what about "disaffection," which is explained to include "disloyalty and all feelings of enmity"?

Wouldn't any strong criticism of the government of the day fit within this definition, particularly because of the concept of "disaffection"?

In the Kedar Nath Singh case, the Supreme Court tried to address this issue by saying:

"As already pointed out, the explanations appended to the main body of the section make it clear that criticism of public 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. It is only when the words, written or spoken, etc. which have the pernicious tendency or intention of creating public disorder or disturbance of law and order that the law steps in to prevent such activities in the interest of public order."

The problem is that this doesn't exactly solve the problem. Since the court's interpretation allows sedition to be invoked for words that can have the 'tendency' to create public disorder or disturb law and order, the police can still invoke it even in cases of just critical speech, and claim there is potential for serious disorder because of it.

Yes, the courts may eventually quash the case, or the accused may eventually be acquitted, but that doesn't stop the police from filing a case for sedition at the outset, and the process is still a great deal of punishment.

The language of Section 124A, if taken to its logical conclusions, covers an incredibly wide range of speech that should be protected, including private conversations, and fair criticism of the government. It makes no distinction between advocacy and incitement, as multiple cases filed by police forces across the country show.

Indeed, sedition cases have increased over the years, as everything from cheering for Pakistan in a cricket match, shouting an Azadi slogan, or just being critical of the Modi government, have been enough to base FIRs and even arrest people for months.

All this has happened despite the Supreme Court passing multiple rulings which would indicate these things are not sedition, including its important 1996 ruling in Balwant Singh that casually raising slogans like 'Khalistan Zindabad' without inciting any violence would not amount to sedition.

The vagueness and overbreadth of the definition of sedition, therefore, creates a chilling effect on free speech, which is also a ground to render it unconstitutional, as the Supreme Court held in 2015 when striking down Section 66A of the IT Act in the Shreya Singhal case.

The concept of the chilling effect is something that only really crystallised after 1962, which is why, once again, it was not considered at all in the Kedar Nath Singh judgment.

As the SG Vombatkere and Arun Shourie petitions point out, the concept only took hold after a US Supreme Court decision in 1967 in Walker vs City of Birmingham.

This US judgment was then cited approvingly in subsequent decisions of Constitution Benches of the Supreme Court of India, in R Rajagopal vs State of Tamil Nadu (1994) and S Khushboo vs Kanniammal (2010).

As Justice Rohinton Nariman pointed out in the Shreya Singhal matter, these decisions are binding on the apex court. As a result, the doctrine can be used by petitioners challenging sedition – and the Kedar Nath Singh judgment is not an obstacle to such an argument.

The Editors Guild of India's petition makes particular note of how the vagueness of the sedition law has allowed it to be misused to attack freedom of the press, with sedition cases filed against a multitude of journalists despite no incitement of violence.

Sedition Fails the Test of Proportionality

One of the major takeaways from the 9-judge right to privacy judgment of the Supreme Court in 2017 is its endorsement of the test of proportionality that is to be used when assessing any restriction on fundamental rights.

Even if a law fits within the grounds for reasonable restrictions in Articles 19(2) to 19(6), if it fails the test of proportionality, it can still be found unconstitutional by the court.

The test broadly includes the following elements:

1. The law imposing restrictions on fundamental rights must have a legitimate state aim

2. The restrictions must be necessary to protect those legitimate aims and there must be a rational connection between the restrictions and the objective behind them

3. The measures suggested by the law should not infringe rights any more than required and should be the least restrictive way of achieving the objective

4. The measures must not have a disproportionate impact on the rights holder

In 2020 in Gujarat Mazdoor Sabha vs State of Gujarat, as the SG Vombatkere petition notes, the apex court even suggested that it is part of the test of proportionality to consider whether the State has provided sufficient safeguards against the abuse of the law.

The offence of sedition under Section 124A of the IPC does not appear to satisfy this test.

It is well known that it was added to the IPC in 1870 by the British as a means to suppress dissent, which means that there is no legitimate state aim that it can be said to satisfy.

There are other provisions of the IPC which deal with actual actions taken to overthrow the government or cause violence and disorder, from waging war against the state to rioting. We also have special statutes to deal with acts of terrorism.

As a result, Section 124A is mostly left punishing free speech in a democracy, for which there is no real necessity, or at least not in the form it currently has, and with an outsized punishment of life imprisonment.

The Editors Guild petition and most of the others have quoted various studies on sedition, which have clearly shown how the provision is being misused, demonstrating the lack of safeguards despite the Supreme Court's judgments.

As the doctrine of proportionality – which is binding on the courts to follow now – was not followed in Kedar Nath Singh, thanks to the pre-RC Cooper approach to fundamental rights and also because it just wasn't fully articulated back then, this provides yet another ground to argue that the reasoning in the 1962 judgment has been overruled.

Even the Country That Gave Us Sedition Has Got Rid of It

There is yet another anachronistic bit of reasoning in the Kedar Nath Singh judgment that protected sedition, which no longer applies.

According to the judgment,

"This species of offence against the State was not an invention of the British. Government in India, but has been known in England for centuries. Every State, whatever its form of Government, has to be armed with the power to punish those who, by their conduct, jeopardise the safety and stability of the State, or disseminate such feelings of disloyalty as have the tendency to lead to the disruption of the State or to public disorder."

According to the court, this meant that it could not be argued that sedition was merely some colonial era law used to subjugate Indians, but was a general law adopted by countries around the world for legitimate reasons.

However, in 2009, the Coroners and Justice Act repealed sedition in England, with reason given for its abolition being:

"Having an unnecessary and overbroad common law offence of sedition, when the same matters are dealt with under other legislation, is not only confusing and unnecessary, it may have a chilling effect on freedom of speech and sends the wrong signal to other countries which maintain and actually use sedition offences as a means of limiting political debate."

Multiple other countries that used to have an offence of sedition like New Zealand, or the United States of America (where various Sedition Acts were passed during wartimes, and repealed afterwards) have also removed the offence because they do not see a legitimate reason for it to exist in a modern democratic setup.

Given England's abolition of the offence as well, on the same grounds that sedition is now being challenged in the court, this is yet another reason for the judges to find that the old judgment upholding sedition is no longer good law.

Was the 1962 Judgment Per Incuriam From the Start?

While the other petitions mostly talk about how Kedar Nath Singh can no longer be considered good law because of subsequent developments, the Arun Shourie petition challenging Section 124A makes an additional argument as well: that the judgment was wrongly decided in 1962 as well.

This is because in its formulation of how sedition was constitutional if construed as a threat to public order, the court in 1962 seems to have ignored a 1960 judgment of the court that held the field on restrictions in the interest of public order.

Shourie's petition argues that in the Dr Ram Manohar Lohia judgment in 1960,

"It was held that (a) only aggravated disturbance of ‘public order’ as opposed to mere ‘law and order’ could be used to restrict freedom of speech and expression and (b) there should be direct and proximate connection between the instigation and the aggravated disruption of public order."

This judgment had also been delivered by a 5-judge Constitution Bench, and was therefore supposed to be binding on the court in the Kedar Nath Singh case.

However, in that case, as noted above, the court ended up saying that even words or actions which had a "tendency" to create disorder or disturb "law and order" could still amount to an offence of sedition.

This clearly goes in the face of the Ram Manohar Lohia judgment, which means the Supreme Court could hold that the 1962 judgment was invalid as it failed to take a binding precedent into account. This may, however, require the court to set up a new 5-judge bench to hear the matter as currently only three judges are on the bench.