New Delhi, Sep 8: Supreme Court Justice Deepak Gupta has come down heavily on the law of sedition in India, saying it is “misused” since the conviction rate in such cases is very low, and merits a re-look.
At a valedictory address in Ahmedabad, Justice Gupta stated that no case for sedition is made out if one merely “disagrees with the government” and does not “promote or incite violence”.
“The manner in which the provisions of Section 124A are being misused, begs the question as to whether we should have a re-look at it,” he said.
“The law of sedition is more often abused and misused. The people who criticise those in power are arrested by police officials on the asking of those in power, even if a person may get bail the next day from court.”
The speech comes just a day after the Delhi Police’s anti-terror unit booked Jammu & Kashmir People’s Movement party functionary Shehla Rashid for sedition in connection with her tweets allegedly spreading “fake news” about human rights violations by the Army in Kashmir.
Can’t force affection for govt
Speaking on the broad contours of the ‘Law of Sedition and Freedom of Expression’, Justice Gupta said looking at the online trolling culture, people cannot be forced to have affection for the government. He said democracy meant “no fear of the government”.
“A very important aspect of a democracy is that the citizens should have no fear of the government. Those in power should have thick skin,” he said.
“You cannot force people to have affection for the government. No sedition is made out unless they or their words promote or incite or tend to promote or incite violence and endanger public order,” he said.
He pointed to the case of Manipuri journalist Kishorechand Wangkhem, who was arrested for sedition for an offensive online post against chief minister N. Biren Singh, and detained for 12 months under the National Security Act.
“The language was intemperate and uncalled for, but this was not a case of sedition. It was at best a case of criminal defamation,” said Justice Gupta.
National emblems strong enough to command respect
Justice Gupta stated that “respect, affection and love is earned and can never be commanded”, and that one may compel someone to do an act, but if it’s not from the heart, it is futile.
“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,” he said.
“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. How does one judge what is inside a person’s mind or in his heart?”
Ignorance of lower judiciary
The judge noted that Section 66A of the IT Act, which put restrictions on the freedom of expression in an online space, was still being used by the lower judiciary and the police, even after being struck down in the Shreya Singhal case.
“It does not speak well of the Indian judiciary that the magistrates are unaware of the law of land, and day in and day out, we hear of magistrates granting judicial custody or police remand in relation to such offences,” he said.
Criticism is welcome
At a time when the judiciary is criticised for its verdicts and the appointment of judges, Justice Gupta said it must be open to being criticised without keeping anyone under the fear of contempt.
“We all must be open to criticism. The judiciary is not above criticism. If judges of the superior courts were to take note of all the contemptuous communications received by them, there would be no work other than the contempt proceedings,” he said.
“Not only should there be criticism but there must be introspection. When we introspect, we will find that many decisions taken by us need to be corrected.”