india

Updated: Sep 07, 2019 23:03 IST

A sitting Supreme Court judge has called for a relook at the law of sedition, saying the penal provision under the Indian Penal Code (IPC) has lately been invoked against those who have been critical of an elected government and arrested for making not so complementary references to state leaders.

Justice Deepak Gupta said that if not abolished, the sedition law must be at least toned down so that people are not arrested at the drop of a hat. The judge was speaking at a seminar organised by a non-profit organisation in Ahmedabad on “Law of Sedition in India and Freedom of Expression” on Saturday.

“Freedom of expression being a constitutional right must get primacy over laws of sedition,” the judge said, addressing a gathering of lawyers. He referred to recent sedition cases and lamented at how people were arrested for “making cartoons, morphing images of political leaders and allegedly spreading rumours over social media about power cuts in a State.”

“Citizens have the right to criticise an elected government and criticism by itself cannot amount to sedition,” the judge said. At best, he said, such cases can be bracketed as instances of defamation if intemperate, uncivilised and defamatory language is used.

“The police always claim to be short of forces when questioned about the adverse law and order situation in various parts of the country. Trials in criminal cases of rape, murder and crimes falling under POCSO carry on for years on end because police officials do not have time to even depose before the courts but when it comes to sedition or spreading disharmony or implementing the provisions of Section 66A of the Information Technology Act (which has been declared unconstitutional), there seems to be no shortage of manpower and the police acts with great alacrity,” the judge said.

POCSO is short for the Protection of Children from Sexual Offences Act.

Section 124-A of the Indian Penal Code, which deals with sedition, says: “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 life imprisonment.

“In a country which professes to live by rule of law, this cannot be permitted,” said justice Gupta, who traced the history of sedition law to point out how the government in 1974 changed the criminal provision from non-cognizable to cognizable, making it more stringent. This change allowed the police to arrest without obtaining a warrant from a magistrate.

“For me, it is very shocking that in independent India we should make the provisions with regard to sedition even more stringent and curb the voice of the people,” justice Gupta said. Sedition is a crime only when there is incitement to violence or public disorder.

“I think our Country, our Constitution and our National Emblems are strong enough to stand on their own shoulders without the aid of the law of sedition. Respect, affection and love is earned and can never be commanded. You may force or compel a person to stand while the National Anthem is being sung but you cannot compel him within his heart to have respect for the same,” the judge said.

Every institution must be tolerant and open to hearing dissenting voices. “Majoritarianism cannot be the law. Even the minority has the right to express its views,” he said.

According to justice Gupta, even the governments elected today do not represent the voice of all the people. “We must also remember that in India we follow the first past the post principle. Even governments which come in with a huge majority do not get 50% of the votes,” he said.