But some extremely gratifying signals emanated from the Court when dealing with the petition challenging the constitutionality of the sedition law laid down in the infamous Section 124A of the Indian Penal Code. The Court acknowledged the truth that the Section has been grossly misused, particularly during the NDA government in recent years.
No attempt has been made to distinguish between issues relating to the security of the nation (which is what sedition laws are supposed to apply to) and to activities such as dissension and protest (which are legitimate activities in a thriving democracy). The abysmally low conviction rates also point to the misuse of the law – in many cases, the process is the real punishment. Chief Justice of India NV Ramana’s powerful analogy of the power of using sedition – it is like giving a carpenter a saw, which is used not on a tree but a whole forest – will be remembered for a long time. Chief Justice Ramana’s remarks were made during the hearing of a petition challenging Section 124A that was filed by (Retd.) Major General SG Vombatkere. There are other petitions before the Court, which are likely to be clubbed together, which hopefully would result in a judicial reconsideration of the sedition law. What form this may take is not clear as the constitutionality of Section 124A has been upheld by a five-member bench of the Supreme Court in 1962 (Kedar Nath v. Union of India). Overruling that judgment requires setting up a larger bench and a process that may consume a few years. The more pragmatic approach for those challenging the constitutionality of the law is to agree to have its application severely and effectively circumscribed so that it is defanged and used only in very limited cases.
The Attorney General, arguing that 124A need not be struck down, was willing to accept guidelines to limit its use. This is welcome, but the key question is whether recommendations to this effect made by the Court will have any effect on the prosecution system. The Courts have time and again reaffirmed that sedition cannot be used to suppress dissent and free speech, but either the police and the lower judiciary have failed to ensure that 124A is aligned to its legal purpose. In effect, there are only two good ways of dealing with this archaic colonial-era provision, which has remained in our statute books, despite serious reservations having been expressed by no less than the country’s first Prime Minister Jawaharlal Nehru. The best option, of course, would be, as Nehru himself wanted, to “get rid of it”. If the process for doing so is too cumbersome, the next best thing is to read down Section 124A in a manner that prevents its flagrant misuse and ensures that it remains in the statute books only in very extraordinary cases.