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Supreme Court: The Court has extended the interim protection from arrest to activist Gautam Navlakha by four more weeks in Bhima Koregaon case. The two-judge bench headed by Justice Arun Mishra allowed him to approach trial court for pre-arrest bail. Navlakha has to apply for pre-arrest bail in the meantime. The lawyer appearing for Maharashtra government, however, objected to granting of any interim protection from arrest to Navlakha.

The Court had, on October 4, extended the interim protection from arrest to Gautam Navlakha till October 15 in the matter.
Chief Justice Ranjan Gogoi, Justice S Ravindra Bhat and a bench of Justices NVmRamana, R Subhash Reddy, and BR Gavai had earlier recused themselves from hearing Navlakha’s plea seeking quashing of an FIR registered against him in the case.

Navlakha was booked under provisions of the Unlawful Activities (Prevention) Act (UAPA) and various sections of the Indian Penal Code (IPC), including waging a war and sedition. He is accused of having links with banned Naxal  groups.

By its recent judgment, the Bombay High Court had arrived at the prima facie conclusion that there is sufficient material for the investigation to continue against Navlakha. The High Court had, however, said that the observations made in its order are only prima facie in nature and that they should not influence the trial court’s decision in the matter.

The High Court had also extended the interim protection from arrest given to Navlakha giving time to him to approach the Supreme Court.
The Maharashtra government has also filed a caveat petition in the matter seeking to be heard before any orders are passed by the apex court.

(Source: ANI)

Case BriefsHigh Courts

Calcutta High Court: A Division Bench of Sanjib Banerjee and Suvra Ghosh, JJ. allowed the appeal filed by two persons who were convicted by the trial court for offence of waging war against the Government of India and set aside the judgment on the grounds of absence of a link between accused and alleged charges.

In the present case, the police received information about a meeting being held at a village where seditious lectures were being delivered. A few members of the said assembly of 30 to 40 people had firearms with them. When police arrived at the spot, the people started fleeing and accused-appellants herein were arrested. Certain seditious pamphlets and leaflets were recovered from their possession. A complaint was registered against them and chargesheet was filed against the appellants and charges were framed against them under Sections 121 A, 122, 124 A of Penal Code, 1860, Sections 25(a) and 35 of Arms Act, 1959 and Sections 4 and 5 of Explosive Substances Act, 1908. The appellants pleaded not guilty to the charges and the trial court convicted the appellants of the charges levied against them and sentenced them accordingly. Being aggrieved by the said judgment, the appellants preferred this appeal.

Counsels for appellants Amarta Ghose, Anirban Tarafder, Somdhuti Parekh, Rimpa Rajpal submitted that the witnesses were forcibly brought by the police which was not required, since under Section 87 of the Code of Criminal Procedure, 1973 the Court had ample power to ensure attendance of witnesses and prosecution had no power with regard to same. It was submitted that neither any explosive substance was recovered from the place of occurrence nor was any firefight was detected. Further, no incriminating article was found either in the possession of the appellant or in his house.

According to prosecution, in order to avoid delay in the trial of the case due to the absence of witnesses, the police took it upon themselves to bring the witnesses to Court and arrange for their stay. There was no suggestion to the fact that the police influenced or coerced the witnesses to adduce evidence or tutored them. It was submitted that since guilt of the appellants had been proved to the hilt and that conviction must be affirmed.

The Court noted that in their statements recorded under Section 313 of the Code, the appellants/accused gave a detailed account regarding their arrest, detention, search and seizure which sharply contradicted the case made out by the prosecution. It observed that the arresting officers had not followed the procedure laid down in D.K Basu v. State of West Bengal, (1997) 1 SCC 416. It was further opined that no firearm or ammunition was seized from the possession of the accused-appellants and such arms or ammunition were also not found in any premises occupied by them. Therefore, no responsibility could be thrust upon them for a commission of any offence under the Arms Act, 1959. Lastly, no explosive substance was recovered from the alleged place of occurrence, and thus offence under Explosives Act also could not be made out.

In view of the above, the Court held that prosecution had miserably failed to establish the charges levied against the appellants and there was no evidence on record that linked accused-appellant to the alleged charges. It was observed that the prosecution case suffered from severe contradictions and thus benefit of doubt could be granted to the appellants.

The Court also opined that it was trite law that the burden of proving a charge against an accused lied solely upon the prosecution and the prosecution was required to bring evidence which should be cogent, compact, believable and trustworthy as to become incompatible with the innocence of the accused. It was opined that the trial court had failed to appreciate the evidence in the proper perspective and missed the salient point that the link between the appellants and the incriminating material produced by the prosecution was non-existent. Thus, the appeal was allowed and the impugned judgment was set aside.[Patit Paban Halder v. State of West Bengal, CRA No. 337 of 2006, decided on 21-06-2019]

OP. ED.

Introduction

In India, the right to freedom of speech and expression is endowed under Article 19(1)(a) of the Constitution. Free speech allows the conveyance of an individual’s ideas and opinions. Its expression is instrumental in permitting individuals their aspiration of achieving a sensation of self-fulfilment. A liberal democracy is characterised by governance by the self (in India through a choice-based representation) and affording the individual to market its modulating opinion across all hues. In such a society, a conflict between the State and the individual’s opinion is bound to exist. Punishing or curtailing an individual for depreciating the authority of the judicial system or State contradicts the abstract theory of the promotion of a right to free speech and expression.

Jurisprudence on free speech and constitutional morality

According to Bhatia[1], two trajectories pertaining to Indian free speech exist. Firstly, the “moral paternalistic” approach and secondly, the “liberal autonomous approach”. The former does not endow individual’s abundant freedom since it views individuals as corruptible and intrinsically ferocious with a tendency to engage in violence. The latter approach is relatively more tolerant and permissive viewing individuals as entities competent to decide for oneself, this approach respects an individual’s intellectual capabilities has relatively fewer restrictions imposed on them. Bhatia further constructs on Kant’s ideology elucidating on the equality of individuals. Relying on the premise that all individuals are equivalent, every individual’s ability to communicate and express oneself should be of equal. Subsequently, no fringe nor political nor majoritarian group should be in a position to asphyxiate the expression of another. He further relies on the Athenian philosophy that drew an inverse nexus between free speech and slavery.[2]

Dworkin[3], similarly provided two justifications as the underlying basis for the arguments advocating free speech. Firstly, permitting individuals to converse and express themselves freely allows the promotion of good policies and serves as a check on relatively poor ones, for this approach an inherent comprehension of the concept of free speech is required. Secondly, a broader justification is the equal endowment of autonomy to individuals and the corresponding appreciation and respect for their right to speak freely.

Bhatia[4] further stipulates the “constitutionalising” of all dimensions of free speech. He promotes the extension of protection of free speech and in the scenario where such protection is unfeasible and impracticable, it should be restrained solely by the Constitution based on certain values and principles of the Constitution as opposed to the prevalent social convictions of the qualifications of morality and decency which have a tendency to be ambiguous and non-uniform.

Constitutionality of Section 124-A[5] IPC

The Supreme Court had constitutionalised and limited the scope of sedition in Kedar Nath Singh v. State of Bihar[6] by restricting it to instances where individuals through their speech and expression disrupt the law or provoke and incite violence. However, in practice and past trend showcases that despite the existence of this stipulation, sedition charges are levied on individuals for mere criticism of the Government in the public arena, mere expressions of detest and abhorrence for State policies, religion and showcasing contempt against what is morally acceptable in our society.

Thus, prevailing present day practices are not in accordance with the judicial intention at the time of articulation of the Kedar Nath judgment[7]. Based on this premise and the following grounds, certain reasons provide why sedition laws should be repealed from the Indian nation State.

Firstly, the overbreadth test should be applied to a provision to gauge its constitutionality. If a provision is excessively ambiguous, very subjective pertaining its applicability and its breadth very expansive, this could lead to obscurity in its practice and its overbreadth could serve to its detriment. Applying this test to Section 124 of the Penal Code, the exact interpretation of the word “disaffection” is uncertain and indeterminable. Despite, the elaboration of the terminology in the explanation to the section to be inclusive of disloyalty and feelings of enmity, the skyline of this provision is nebulous. Article 19(1)(a) endows individuals the fundamental right to freedom and expression which is reasonably restricted by Article 19(2) in the interest of public order when pertaining to sedition. However, in India, recent trend showcases the application of sedition under the IPC being charged on individuals on grounds barring the instances limited to interest of public order. Given the haziness in the practical applicability of this provision, it should be rendered unconstitutional.

Secondly, this test is further extended to the vagueness test, whereby an individual should be aware of articulation of the provision, what it seeks to condone and the consequences attached. Given the obscurity attached with the provision, an individual may be dubious to the horizons of the provision which would lead to a negative externality such as the chilling effect.

Thirdly, Section 124-A IPC cements a certain chilling effect on the generic public. This section identifies sedition as a criminal offence and attaches with the provision excessive damages and penalties for instances of sedition. In India, however, sedition charges in practice are not limited to solely instances “in the interest of public order” but also extend to occurrences of defamation, deviations from the accepted standards of morality and decency, etc. In the backdrop of substantial punishments, the provision serves as a disincentive on the freedom of speech endowed to citizens under Article 19(1)(a) of the Constitution.

Fourthly, despite limiting the scope in the 1962 provision, the Court did not establish a reasonable nexus[8] between a speech and its role as an instrument to the causation of public disorder. Although, in recent years the courts have initiated the identification of occurrences whereby this nexus exists, there is no absolute provision in existence. In the absence of such a provision with the restriction imposed in Article 19 of the Constitution, the chilling effect may supersede in society, which is in a direct contradiction of the articulation of the freedom endowed under Article 19(1)(a).

In Shreya Singhal v. Union of India[9], the Court laid that regardless of the degree of derogation and insult, a certain degree of proximity needed to exist between the utterance and the potentiality of public disorder. This is progressive step in the direction of laws pertaining to sedition as it further limits the scope of sedition. The Court in the case positioned the requirement for a substantive and a procedural analysis of the restrictive law concerned to determine its reasonability.

Thus, whilst applying the fundamentals of this case to Section 124-A IPC, a substantive analysis would showcase the provision to be excessively broad in the interpretation of “disaffection”, thereby fulfilling the overbreadth and vagueness test. The procedural analysis of the punishment would prove it be a draconian provision. Given the obscurity concerning the actual materialisation of disorder and violence, life imprisonment as a punishment for the mere potentiality of inciting violence through speech seems to be superabundant, thereby fulfilling the chilling effect. Thus, the restriction on free speech and its recognition as an offence under Section 124-A IPC does not seem reasonable.

Schenck v. United States[10], elucidated the required proximity between the utterance of speech and incitement of violence. It lays the possibility of danger or the intent to bring it about must be imminent or immediate. This case established the “bad tendency test”.[11] Brandenburg v. Ohio[12], laid the “clear and present” danger test, whereby the State was prohibited by the US Constitution from repressing speech and its advocacy barring the possibility of it causing an immediate harm to law by an illicit act or if it aimed at causing such an action. In the US under the 1st amendment, further speech is promoted as opposed to necessitating silence to remedy bad or injurious speech. Thus, in the US even though some sedition laws have been retained, the courts are dispensing extensive protection to the right of free speech.

In India, such a linear demarcation does not exist and in the scenario where the implementation of such tests are attempted, reasonable restrictions serve as a hindrance. Even though such tests was applied in Arup Bhuyan v. State of Assam[13], the Supreme Court has rejected such tests in other cases resulting in no fixed applicability.

India’s sedition law is derivative from the colonial era. In 2009, the Britain abolished its sedition laws to endorse the freedom of speech and expression. This abolition was on the premise that such laws were in contradiction to Britain’s human rights commitments and were also responsible in inducing a chilling effect on the right to freedom of speech and expression.

In 2007, New Zealand abolished its sedition law based on the Crimes (Repeal of Seditious Offences) Amendment Act, 2007[14]. It has addressed comparable offences under other conventional criminal provision.[15]

Conclusion

Thus, articulation of Section 124 of the Penal Code appears to subdue and extinguish any forms of dissent present in society. Such a tendency contradicts the inherent ingredients which characterise a democracy. The existence of such provision in a State aiming to progress appears obsolete. The punishment associated with it render the provision draconian. The continuance of such a provision induces a chilling effect on the freedom of speech and expression, which is a supposed fundamental right provided under Article 19(1)(a) of the Constitution. There is a need for India to progress and alter its sedition laws in accordance with the transitions in society. Further, given sedition covers a broad ambit of actions, each act should be governed by its individual provisions, rather than one generic offence with such a stringent punishment.

 

 *  2nd year student of LLB, Jindal Global Law School, Sonipat.

[1]  Bhatia, Gautam, 2016, Offend, Shock, or Disturb: Free Speech under the Indian Constitution. 1st Edn., Oxford University Press, USA.

[2] Mehta, Avantika, 2016, Offend, Shock, or Disturb: The limitations to free speech in India. Hindustan Times,<http://www.hindustantimes.com/art-and-culture/a-new-book-looks-at-limitations-to-free-speech-in-india/story-mF9tcylLiAxpiS255zL16H.html>.

[3]  Venkataramanan, K., 2016, How free can free speech be?, The Hindu, <http://www.thehindu.com/opinion/op-ed/how-free-can-free-speech-be/article8289947.ece>.

[4]  Venkataramanan, K., 2016, How free can free speech be?, The Hindu, <http://www.thehindu.com/opinion/op-ed/how-free-can-free-speech-be/article8289947.ece>.

[5]  124-A. Sedition.—Whoever by words, either spoken or written, or by signs, or by visible representation, or otherwise, brings or attempts to bring into hatred or contempt, or excites or attempts to excite disaffection towards, [***] the Government estab­lished by law in [India], [***] shall be punished with [im­prisonment for life], to which fine may be added, or with impris­onment which may extend to three years, to which fine may be added, or with fine.

        Explanation 1.—The expression “disaffection” includes disloyalty and all feelings of enmity.

        Explanation 2.—Comments expressing disapprobation of the meas­ures of the Government with a view to obtain their alteration by lawful means, without exciting or attempting to excite hatred, contempt or disaffection, do not constitute an offence under this section.

        Explanation 3.—Comments expressing 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.

[6] 1962 Supp (2) SCR 769 : AIR 1962 SC 955.

[7]  1962 Supp (2) SCR 769 : AIR 1962 SC 955.

[8]  Parthasarathy, Suhrith, 2016, Sedition and the Government, The Hindu, <http://www.thehindu.com/opinion/lead/Sedition-and-the-government/article14082471.ece>.

[9]  (2015) 5 SCC 1.

[10]  1919 SCC OnLine US SC 62 : 63 L Ed 470 : 249 US 47 (1919).

[11]  Liang, Lawrence, 2016, Interview: Sedition and the Right to Freedom of Expression. The Wire, <https://thewire.in/42412/interview-sedition-and-the-right-to-freedom-of-expression>.

[12]  1969 SCC OnLine US SC 144 : 23 L Ed 2d 430 : 395 US 444 (1969).

[13]  (2015) 12 SCC 702.

[14]  Crimes (Repeal of Seditious Offences) Amendment Act, 2007, <http://www.legislation.govt.nz/act/public/2007/0096/latest/whole.html>.

[15]  Dutta, Damayanti, 2016, The Sedition joke: Going from bad to worse, Indiatoday.intoday.in. <http://indiatoday.intoday.in/story/sedition-law-india-government-offence/1/759345.html>.

Case BriefsHigh Courts

Gujarat High Court: Hearing upon the applications filed by Patidar Anamat Andolan Samiti’s (PAAS) firebrand leader and convener Hardik Patel, who was charged with sedition, the bench of A.J. Desai, J., granted him bail along with certain conditions wherein Patel will have to refrain from taking undue advantage of the liberty provided to him. The Court further directed Patel to issue a declaration that he is ready to remain outside the territorial limits of the State of Gujarat for a period of six months from the date of his release.

The present case is a result of the statewide unrest that prevailed in the State of Gujarat last year where there was an agitation led by the leaders of PAAS demanding reservations in government jobs and educational institutions for the Patidar community under the Other Backward Classes (OBC) category. As per the contentions of Zubin Bharda representing Hardik Patel, the prosecution has vehemently tried to portray that Patel is the one who is solely responsible for the violence that spread in the aftermath of the rallies that were held in the support of the cause championed by PAAS. It was further argued that grave charges were leveled against the applicant under Section 121 of IPC, as if his demand for reservation was akin to waging war against the State. The contentions were opposed by the Public Prosecutor, Mitesh Amin, who stated that the applicant had used the wide array of social networking sites and internet applications such as ‘watsapp’ to mobilize the members of Patidar community and thereby had conspired to overawe the State Government.

Perusing the contentions of the parties and referring to landmark decisions on sedition, the Court observed that the applicant and his association namely PAAS had called on the members of Patidar community to the various rallies that furthered their cause of attaining reservation under the OBC category. The Court also studied the speeches and the interviews given by the applicant and observed that along with the applicant, several other members of the Patidar community were interested in getting reservation. Therefore the applicant alone cannot be kept behind the bars when other leaders of the agitation have been already granted bail. Considering the principles laid down by the Supreme Court in respect to Section 439 of the CrPC, the Court decided to grant bail to the applicant but with certain mandatory conditions. [Hardik Bharatbhai Patel v. State of Gujarat, 2016 SCC OnLine Guj 824, decided on 08.07.2016]

Case BriefsDistrict Court

Patiala House District Court, New Delhi: While hearing the bail applications of Anirban Bhattacharya and Umair Khalid under Section 439 CrPC, the Court granted interim bail to both the applicants/accused for a period of 6 months subject to forming a personal bond.  In the present case, both the applicants/accused were charged with Section 124 A of Penal Code, 1860 for raising anti-national slogans at the JNU Campus. Investigation revealed that Anirban Bhattacharya and Umair Khalid had applied to hold the event and were the main organizers of the event which ended in raising the anti-national and anti-constitutional slogans. Sh. Trideep Pais, counsel on the behalf of the applicant/accused Anirban Bhattacharya submitted that sloganeering did not lead to any further incident and the allegations against the accused persons fell short of ingredients of Section 124 A Penal Code, 1860. Sh. Jawahar Raja, counsel for the applicant/accused Umar Khalid made similar submissions.

The Court after perusal of the arguments advanced by counsels, relying on Prasanta Kumar Sarkar v. Ashis Chatterjee, (2010) 14 SCC 496 granted bail to the accused persons keeping in view that no previous criminal record of any nature found and also the fact that nothing has been brought on record which could indicate that they are likely to abscond from the jurisdiction of Court. Therefore, the Court granted interim bail to both the applicants/accused for a period of 6 months subject to forming a personal bond in sum of Rs. 25,000 with one surety of the like amount. The Court also directed the accused persons for not leaving Delhi without the permission of the Court during the bail period. [State v. Anirban Bhattacharya, Bail Application No. 1153/16 & 1154/16, decided on 18.03.2016.]

 Read the order Here

High Courts

 

Bombay High Court: In a major relief to cartoonist Aseem Trivedi, a bench comprising of Mohit Shah, CJ and N.M. Jamdar, J has held that citizens have the right to say or write anything criticizing the government and its measures as far as it does not incite violence or create problems in law and order. The Court observed that after having seen the seven cartoons drawn by the cartoonist, they didn’t find any  element of wit or humour or sarcasm in them. It only displayed anger and disgust. But that does not mean that it attracted sedition charges,

The Court stated that it is clear that the provisions of Section 124A of IPC cannot be invoked to penalize criticism of the persons engaged in carrying on administration or strong words used to express disapprobation of the measures of Government with a view to their improvement or alteration by lawful means. Every citizen has a right to say or write whatever he likes about the Government, or its measures, by way of criticism or comments, so long as he does not incite people to violence against the Government established by law or with the intention of creating public disorder. The section aims 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.

The Court also accepted a set of guidelines, as pre-conditions to police for invoking sedition charges only if an act was an incitement to violence or disturbed pubic order. A legal opinion in writing, along with reasons, must also  be submitted before any charge of sedition was to be applied in any case. Sanskar Marathe vs. State of Maharashtra, 2015 SCC OnLine Bom 587, decided on March 17, 2015