Given how the Supreme Court said there was no case of sedition against Binayak Sen in 2011 or its treatment of the sedition charges brought against a folk singer for criticising Tamil Nadu chief minister J Jayalalithaa last year—the Bombay High Court was equally dismissive of the sedition charges against cartoonist Aseem Trivedi—it is not surprising that a two-member bench of the Supreme Court ruled on Monday that sedition charges cannot be slapped merely for criticising the government. While stating that sedition was involved if the actions were aimed at subverting the government by violent means or trying to create disorder/inciting violence, the judges said the guidelines framed by the SC in Kedar Nath Singh vs State of Bihar in 1962 needed to be followed before slapping a sedition charge.
Kedar Nath Singh was sentenced to rigorous imprisonment for sedition for a year by the trial court for referring to the CID as dogs and talking of elected ‘Congress goondas’ who would be liquidated—when the appeal came to the Supreme Court, the petition was about whether Section 124A of the Indian Penal Code (IPC) that deals with sedition was consistent with Article 19(1)(a) of the Constitution which guarantees freedom of speech. In the case of Kedar Nath, SC ruled “a very strong speech or … very vigorous words … very strong criticism … of Government …in our opinion, such words written or spoken would be outside the scope of the section”. The judgment went on to say a citizen had the right to say or write whatever s/he felt about the government “so long as he does not incite people to violence against the Government or … with the intention of creating public disorder”. It is only when, it ruled, “the words, written or spoken, etc. which have the pernicious tendency or intention of creating public disorder or disturbance of law” that they could be termed seditious.
The problem with letting the colonial sedition law remain on the statute is that ‘pernicious tendency’ or ‘intention of creating public disorder’ are ambiguous and, as has happened continuously since 1962, these are interpreted by the local police in the manner they like—so, even if let off by the courts later, people have been charged with sedition and spent time in jail for daring to take on the government. Though recent memory recalls the NDA’s ‘intolerance’ as witnessed by the sedition charges against Kanhaiya Kumar at the Jawaharlal Nehru University, according to the National Crime Records Bureau (NCRB) report, 147 offences against the state were reported in 2015 and 30 of them were sedition cases. Bihar topped the list with nine sedition cases, followed by West Bengal with four, and three each in Karnataka, Kerala and Haryana; the number arrested under sedition also increased from 58 in 2014 to 73 in 2015. With few political parties, at either the Centre or the states, averse to levelling sedition charges, the SC needed to take a tougher look at the law.