In a petition filed by the Journalist Union of Assam, Supreme Court directs governments to not use Section 124A

tl;dr

It is official. The Supreme Court has stayed the operation of Section 124-A of the Indian Penal Code, 1860 (‘IPC’) which criminalises speech that excites or attempts to excite ‘disaffection, hatred or contempt’ against the Government established by law. Through its interim order dated May 11, 2022 (‘Order’), which goes a long way in protecting the freedom of speech and expression across the country, the Supreme Court has also put in abeyance all ongoing prosecutions under Section 124-A. This Order was issued in a batch of petitions challenging the constitutional validity of Section 124-A, one of which was the petition filed by the Journalist of Union of Assam (‘JUA’). Over the past two weeks, the Supreme Court extensively heard the counsels of the petitioners, including Mr Chander Uday Singh, Senior Advocate, who represented JUA, before passing this historic order.

Why should you care?

The law of sedition was enacted by the colonial British government in 1870 to suppress the movement for independence. The provision remained in the statute books despite reservations expressed by members of the Constituent Assembly. Over the years, it has been used by one government after another to suppress speech, silence critics and imprison human rights defenders. Increased accessibility and use of the internet for the exercise of the fundamental right to freedom of speech and expression via the internet has led to a rise in the filing of cases under Section 124-A. This historic Order will provide relief, albeit a temporary one as of now, to all those who are suffering or may suffer as a result of this unconstitutional provision. The Rajasthan HC has already relied upon today’s order to provide relief to an affected person accused of committing an offence under S.124-A, IPC

The historic order

In the Order dated 11.05.2022, the Supreme Court noted the stance of the Union Government that they were reconsidering the law under Section 124-A, and observed that till the re-examination of the provision was complete, ‘it will not be appropriate to continue the usage of the aforesaid provisions of law by the Governments’ (Paragraph 7). After making this observation, the Supreme Court issued several directions which have a far-reaching impact on the implementation of Section 124-A:

  1. Restrain on registering any FIRs: ‘Article14’ has found that FIRs under Section 124-A have been filed against 13,000 individuals between 2010 and 2021. The Supreme Court has directed State and Central Governments to restrain from registering FIRs, continuing any investigation or taking any coercive measure by invoking Section 124-A.
  2. Affected parties may approach Courts: If fresh cases are found to be registered despite the aforementioned direction, the Supreme Court has granted liberty to accused persons to approach appropriate Courts, and such courts are directed to take into account this interim Order while deciding on whether the accused should be granted relief.
  3. All pending trials, appeals and proceedings to be kept in abeyance: A large number of individuals are being prosecuted under this provision. These prosecutions are at various stages. The Supreme Court has directed all courts in India to not continue with these prosecutions. This direction will provide relief to individuals who face difficulties on a day to day basis because of the rigours of criminal trials.

A run-down of the proceedings before the Supreme Court

Date
30.04.2022 The Court issued notice in a petition filed by Kishorechandra Wangkhemcha permitting the Union Government to file a counter-affidavit.
15.07.2021 The Court issued notice issued in Major General S.G. Vombatkere’s petition challenging the constitutional validity of Section 124-A, IPC.
27.04.2022 After 8 months of notice being issued, Major General S.G. Vombatkere’s petition was listed for hearing. The Solicitor General was directed to file a counter-affidavit by 30.04.2022.
02.05.2022 JUA’s petition was ordered to be listed with Major General S.G. Vombatkere’s petition.
05.05.2022 The Solicitor General sought more time to file a counter-affidavit. The Court granted him time till 09.05.2022. At the same time, all parties were directed to file written submissions by the morning of 07.05.2022 on the question of whether the matter required reference to a larger bench.
07.05.2022 Lawyers at IFF led by Sr. Adv. Chander Uday Singh submitted their written submissions. Advocate-on-Record Rahul Narayan, and Adv. Gautam Bhatia lent their expertise as well.
09.05.2022 The Union of India filed a counter-affidavit stating that the Government of India had decided to “re-examine and reconsider” S. 124-A before a “constitutionally” “appropriate forum”.
10.05.2022 The Court directed the Solicitor General to seek instructions on the Government’s stand on the treatment of the provision under S. 124-A till it is reconsidered by the Government.
11.05.2022 The historic Order keeping all pending trials, appeals and proceedings pursuant to a charge framed under Section 124-A, IPC in abeyance was passed.

Why is Sedition Unconstitutional?

In September 2021, JUA, with legal assistance from IFF, filed a petition before the Supreme Court challenging the constitutional validity of Section 124-A. In the petition, JUA sought for striking down Section 124-A on the following grounds:

  1. Violation of Article 19(1)(a) of the Constitution: In 1962, a five-judge bench of the Supreme Court in Kedar Nath Singh vs Union of India, 1962 Supp (2) SCR 769 upheld Section 124-A while reading it down to apply only to such speech which had the ‘tendency’ to incite violence. However, Kedar Nath Singh did not establish a link between speech, and the consequences that may follow from it, by choosing not to define the word ‘tendency’. JUA in their petition submitted that Section 124-A, as interpreted by Kedar Nath Singh, violated the freedom of speech and expression as it criminalised speech which did not have any proximity to violence or public disorder, and as a result, it caused a ‘chilling effect’ on speech.
  2. Violation of Article 14 of the Constitution: Section 124-A prescribes a punishment regime unlike any other offence under the IPC. It permits judges to punish an accused with (1) imprisonment for life, to which a fine may be added or (2) with imprisonment which may extend to three years, to which a fine may be added or (3) with a fine. Unlike other offences which permit drastically varying punishments, for eg. Section 304 IPC (culpable homicide not amounting to murder), Section 124-A does not provide any guidance to judges on how to rationally classify different cases and decide whether to punish an accused with imprisonment for life or with imprisonment up to three years or merely impose a fine. As a result, the provision violates Article 14 as it permits arbitrariness through its punishment regime.
  3. Disproportionate impact on journalists: Section 124-A has a disproportionate impact upon journalists or other persons whose views are contrary to the position of the “Government established by law”. The position occupied by journalists places them under higher threats of prosecution under Section 124-A. The chilling effect cast by the threat of prosecution under Section 124-A impacts the ability of journalists to continue with their reporting and discharge their role as the fourth estate.  ‘Article14’, – a media collective of lawyers, journalists, and academics providing research, reportage, and data – has demonstrated how this provision is being used in practice and has a conviction rate as low as 0.1% (between 2010 and 2021). Considering the low conviction rate, cases filed under Section 124-A impose a huge financial and resource burden on small organisations and freelance journalists. The threat of prosecution effectively forces journalists to self-censor themselves from publishing controversial or critical speech, regardless of its permissibility under law

The Indian Journalists Union welcomes this decision

In response to the historic decision, the Indian Journalists Union, of which JUA is a state chapter, has issued a press release which states:

“IJU hopes that the government of India will revisit and review the sedition law and scrap the draconian law enacted by the British to suppress the Independent struggle against the colonial rulers.
IJU thanks the team of lawyers that pleaded the case in the SC on behalf of our affiliate Journalists Union of Assam.”

We thank JUA for allowing us to lend our expertise in this important matter. We are grateful to Sr. Adv. Chander Uday Singh for leading us in the matter, as well as all other Senior Advocates representing other petitioners before the Supreme Court, especially Sr. Adv. Kapil Sibal and Adv. Prasanna S.

Sr. Adv. Chander Uday Singh was briefed by the legal team comprising Advocate-on-Record Rahul Narayan, Advocates Gautam Bhatia, Vrinda Bhandari, Abhinav Sekhri, Tanmay Singh, Krishnesh Bapat, Anandita Mishra, Amala Dasarathi, Natasha Maheshwari, and Nikhil Dave (intern at IFF).

The petition is directed to be listed in the third week of July, where we will be present and will continue to make submissions towards having Section 124-A completely struck down.

Important Documents:

  1. W.P. (Crl.) No. 498 filed by the Journalist Union of Assam (link)
  2. Counter-affidavit filed by the Union Government (link)
  3. Interim Order dated 11.05.2022 (link)