The bench said “it is a statutory issue and not a constitutional issue” and added that what difference does it have in case of a corporation or a company. (File Photo) The bench said “it is a statutory issue and not a constitutional issue” and added that what difference does it have in case of a corporation or a company. (File Photo)

The Supreme Court Monday asserted that “making a strong criticism of the government” is not even defamatory, let alone seditious. The court also directed all authorities, including police and trial judges, to follow its Constitution Bench ruling which stated that only incitement to violence and public disorder could form the basis of a sedition charge.

A bench of Justice Dipak Misra and Justice Uday U Lalit maintained that it would not be within the fold of criminal jurisprudence to issue uniform guidelines for registration of FIRs under sedition charge, but underscored that a larger bench has already provided necessary safeguards that should be followed by all authorities.

“Suppose somebody makes a strong criticism of the government… even a case of criminal defamation cannot be filed, let alone a case of sedition. Every magistrate is bound by what we said in the Kedar Nath (case),” said the bench.

In Kedar Nath Singh vs State of Bihar, 1962, a Constitution Bench had ruled in favour of the constitutional validity of Section 124A (sedition) in the IPC, but had added a vital caveat: that a person could be prosecuted for sedition only if his acts caused “incitement to violence or intention or tendency to create public disorder or cause disturbance of public peace”.

READ | Simply put: Criticism without incitement to violence isn’t sedition

“A citizen has a right to say or write whatever he likes about the government, or its measures, by way of criticism or comment, 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 judgment had held.

NGO Common Cause and others had moved the top court, seeking guidelines in terms of this judgment. Arguing for the PIL, advocate Prashant Bhushan submitted before the bench that policemen are usually unaware of the safeguards provided in the Kedar Nath case, which has resulted in arbitrary arrests of people and registration of numerous cases of sedition.

Bhushan complained that civil rights activists, student leaders, cartoonists, writers, actors and poets are bearing the brunt of whimsical registration of sedition cases.

At this, the bench suggested that Bhushan bring all such cases of misuse to the notice of the court, which would then pass necessary orders. “Every court is bound by our judgment in Kedar Nath (case) and whenever a case of sedition comes up, a magistrate must apply his mind in accordance with this judgment. You bring all such sample cases and we will take a call,” it said.

The bench, however, maintained that this adjudication has to be “case-specific” and no single order could be passed in criminal cases arising out of different facts. “In criminal jurisprudence, allegations and personalities are case-specific. We cannot have generalisation in criminal cases. Registration of cases shall depend on facts of each case but it is correct that all these will have to follow Kedar Nath judgment,” it said.

The court added that it cannot issue directions to make approval from the Director General of Police or Commissioner of Police a must before lodging an FIR for sedition in order to prevent “arbitrary” arrest of people because that would tantamount to amending the provisions of the Criminal Procedure Code (CrPC).

“There is a procedure prescribed under the CrPC regarding registration of FIRs and we cannot change it by issuing directives. It (the sedition PIL) may be an important matter but we have our own limitations. We can, however, say that sedition as an offence has been read down and all courts are bound by this interpretation,” the bench said.

The bench told Bhushan that criminal jurisprudence will go haywire if the apex court orders for review of all sedition cases filed in the country and added that it would be legally apt for him to challenge alleged cases of misuse independently.

“We cannot presume that the trial judges or a Director General of Police is not aware of our judgment. But we shall direct them and remind them again,” it said while writing in its order that “authorities who deal with offences under Section 124A of the IPC shall be guided by the principles in Kedar Nath Singh vs State of Bihar.”

Citing the National Crime Records Bureau report, the PIL had pointed out that 47 cases of sedition were filed in 2014 alone, with 58 persons being arrested in connection with these cases. The government, however, managed only one conviction. The petition further said cases had been lodged against writer Arundhati Roy, cartoonist Aseem Trivedi, civil rights activist Binayak Sen, 67 Kashmiri students in Uttar Pradesh, actor Aamir Khan, Tamil folk singer S Kovan and JNU students’ union president Kanhaiya Kumar to “threaten” them.

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