The Congress and the NCP, which are protesting a new circular issued by the Maharashtra government that lays down guidelines for the police to invoke sedition charges had ironically played a pivotal role in drafting it after a controversy triggered off by the arrest of a cartoonist in 2012.

The guidelines were submitted to a Bench of Chief Justice Mohit Shah and Justice Nitin Jamdar by then Advocate General Darius Khambatta and public prosecutor Revati Mohite-Dere in October 2012 when the Congress-NCP was in power.

The proposal was drafted as part of a face-saving exercise after it invoked sedition charges against cartoonist Aseem Trivedi for his cartoons depicting the political class. After massive public outrage, a PIL was filed seeking to declare the state’s move to arrest Trivedi as illegal.

Subsequently, the Congress-NCP government decided to drop the charges against him and told the court that it was planning to issue guidelines on when sedition charges could be invoked.

The high court, however, took two years to decide the case by which time there was a regime change. In March 2015 the Bombay High Court disposed of the PIL by saying that people cannot be charged for sedition for simply criticising the government.

The draft submitted to the high court contained four major recommendations which the police is supposed to keep in mind before invoking sedition charges. It said that words, signs or representations must bring the government (Central or State) into hatred or contempt or must cause or attempt to cause disaffection, enmity or disloyalty to the government and the words/ signs/ representation must also be an incitement to violence or must be intended or tend to create public disorder or a reasonable apprehension of public disorder.

The second recommendation says that words, signs or representations against politicians or public servants by themselves do not fall in this category unless it shows them as representative of the Government. The third clause shows states that comments expressing disapproval of the government with a view to obtain a change of government by lawful 19 / 21 Cri.PIL 3-2015 means without any of the above are not seditious.The fourth recommendation says that obscenity or vulgarity by itself should not be taken into account as a factor for deciding whether a case falls within the purview of Section 124 A.

It also says that the section can be invoked only after a legal opinion is obtained in writing from a law officer followed within two weeks by a legal opinion in writing from public prosecutor. “The charges should be invoked only if words, signs or representations shows politicians or public servants as government representatives,” the state circular said.

The Congress and NCP have picked up on this point and claimed that the order curtails the fundamental right of a citizen to criticise the government. The home department has however claimed that the crux of the entire circular is based on the draft that was submitted and approved by the Bombay High Court. The state has said changing the directives of the court would be contempt.

“The circular states that criticism of government, elected representatives is not sedition,” said K P Bakshi, additional chief secretary, home department.

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