INTRODUCTION
Man in his evolution from savage to civilization has created many collectivities in order to tackle the complexities of civilized living. The intention behind this urge for unity is the cause behind the development of “families”, “tribes”, “settlements” “society” and at last the “nation-state”. Nation-state is the most powerful of all these collectivities.Being the amalgamation of all powers, resources and skills of the people and societies state is powerful to enforce its will upon the whole population that contributed to its creation. A modern state warrants obedience from governed and demands monopoly of sovereignty. The mechanism which runs the daily affairs of state is the government. The government too demands obedience from the people even if the stakeholders of the government change eventually. All modern states have legislated laws to ensure its monopoly and to limit the attack against itsinstruments. The degree and character of these laws vary according to the polity of the state enacting it. In India we too have such laws which draws the line of control for defamation and criticism of state and state apparatus.One of the major provisions which facilitates the purpose is Section 124A of the Indian Penal Code 1860. Though the Republic of India upholds the “Freedom of speech and expression” through Article 19(1)(a) of its constitution it qualifies the same trough the limitations under Article 19(2). In this case the Supreme Court of India have clearly and deeply examined the position of sedition law in India by enquiring into case right from the time of the Empire. I here make a humble attempt to analyse the verdict of the supreme court in this article.
BACKGROUND
The events that led to this case occurred at the starting of the Covid 19 pandemic in India and at the time when a national lockdown was announced. The petitioner in this case Vinod Dua being a journalist made some statements regarding the government’s preparedness for facing the pandemic, precautions taken before declaring the lockdown and regarding the return back of migrant labourers to their native places in a video uploaded in the YouTube. In his video the appellant stated that the Prime Minister of India is using the anti-terrorist military actions for his election propaganda. The other statements made by him was
“i) Our biggest failure has been that we do not have enough facilities to carry out testing.
ii) Till now we do not have any information how many (PPE suits, N95 masks and masks of 3 ply) we have and how many will become available by when.
iii) The Ventilators needed in other countries and in India, respiratory devices and sanitisers were being exported till 24.3.2020 instead of keeping these for use in our country.
iv) That supply chains got disrupted due to blockage of roads and now it is being heard that transportation of essential goods has been allowed.
v) It is not difficult to imagine that when the supply chains have been closed, when the shops are closed, some people had gone to the extent of fearing food riots which have not happened in our country could happen.
vi) When people started returning from Mumbai …. That should have been a big signal for the Government about the effect the complete lockdown in the country can bringabout, but no lessons were learnt.”
The respondents here (de facto complainants) found these statements as ones spreading disaffection towards the government and also something which kickstarted the migration of labourers to their natives. So, they filed a complaint at the Kumarasain police station in the Shimla district of Himachal Pradesh. A FIR was filed pursuant to the complaint on 06/05/2020 charging Sections 124A, 268,501 &505 of the Indian Penal Code 1860 and further processes were made. The appellant contends that the words stated by him in the programme is just a critical appraisal of the function of the government and has not intended to create any dis affection. By stating thus, the appellant prays for two remedies they are
- Quash FIR No.0053 dated 06.05.2020 registered at Police Station Kumarsain, District Shimla, Himachal Pradesh.
- Direct that henceforth FIRs against persons belonging to the media with at least 10 years standing be not registered unless cleared by a committee to be constituted by every State Government, the composition of which should comprise of the Chief Justice of the High Court or a Judge designated by him, the leader of the Opposition and the Home Minister of the State.
ARGUMENTS REGARDING THE ADMISSIBILITY OF THE PETITION
The contention of the petitioner is that his statements were just critical appraisal of the functioning of the government and it is the exercise of “Freedom of Speech and Expression” under Art.19(1)(a) of the constitution of India as a citizen and as a journalist, consequently the criminal proceedings initiated against the petitioner is against the spirit of the constitution hence be quashed. The second remedy prayed for shall be awarded by issuing guidelines for the prosecution of journalists as the supreme court has done in the case of prosecution of Medical Practitioners through the verdict in the case Jacob Mathew v. State of Punjab[i]reaffirmed in the case Lalithakumari v. State of UP and others.
The petitioner has a right to approach the Supreme Court directly as the criminal proceedings taken involve a violation of fundamental rights. Though the jurisdiction of Supreme Court under Art.32 is concurrent with that of the jurisdiction of the High Courts under Art.226, Art.32 is on a special footing when it comes to the case of a fundamental right violation as the provision itself is a fundamental right and is also a guarantee covenant for all other fundamental rights.So, the petitioner prays for a remedy under Art.32. Moreover, the second remedy claimed cannot be allotted by a lower court issuing remedies under the Code of Criminal Procedure 1973.
The respondents contented that the petitioner has tried to spread false information which had caused panic among the citizens of the country and resulted in the return back of migrant labourers. The claim of the petitioner that all his statements were critical appraisal of the governmental action have to be found out in the investigation. So, the investigation should go on and the FIR should not be quashed. The respondents added that the first remedy claimed by the petitioner can be availed by the means of the Code of Criminal Procedure 1973, hence the petitioner shall be directed to approach the lowest competent forum for the remedy. Regarding the second remedy the postulation of the respondents are that if the second remedy is allowed it will be an encroachment into the field of legislature and such encroachments are not warranted by law. The respondents find the writ petition to be unworthy of admission.
SUPREME COURT’S OBSERVATIONS REGARDING ADMISSABILITY OF THE WRIT PETITION
The Supreme Court here was in a position to ascertain whether this case fall under any special category so that the prayer for the quashing of the FIR may be allowed even before the investigation has resulted into filing a report under Section 173 of the Code of Criminal Procedure 1973. For the purpose the court went through its previous decisions where the prayer for the quashing of the F.I.R had arisen.
While looking at the case Arnab Ranjan Goswami vs. Union of India and Others[ii] the Supreme Court dealing with the petition of quashing the FIR rejected the same as it found no expediency or speciality in that case so as to bypass the power of the High Court under Section 482 of the CrPC and observed that there is a clear distinction between the maintainability of the petition and whether it should be entertained. Reliance is also placed on the decision of this Court in Amish Devgan vs. Union of India and Others[iii] which in turn referred to the decision of Arnab Ranjan Goswami.
The Supreme Court also referred to those decisions where it pleased to quash the FIR while entertaining petition under Art.32 of the Constitution. One among them was Priya Prakash Verrier and Others vs. State of Telangana and Another[iv] where the Supreme Court relied on the dictum in the case Ramji Lal Modi vs. State of U. P[v] where the constitutional bench of the Supreme Court held that for an offence to come within the parameters of Section 295-A of the IPC, the crime ought to have been committed with deliberate and malicious intention of outraging the religious feelings of a class. Finding such element to be completely absent, the relief of quashing of the FIR was granted by the Court in Priya Prakash Wariercase.
The court also looked into the celebrated Romesh Thappar v. The State of Madras[vi] where the Advocate General of Madras while appearing for the respondents made a preliminary objection that as a matter of orderly procedure the petitioner should first approach the High Court of Madras under Article 226 of the Constitution in order to challenge the violation of fundamental rights before approaching the Supreme Court under Art.32 of the Constitution. The AG also stated many American parallels where the Supreme Court of the U.S.A asked the petitioners to approach the federal or state courts before bringing the case before the Apex court. The court rejected this objection and stated that “Article 32 provides a “guaranteed” remedy for the enforcement of those rights (fundamental rights), and this remedial right is itself made a fundamental right by being included in Part III. This Court is thus constituted the protector and guarantor of fundamental rights, and it cannot, consistently with the responsibility so laid upon it, refuse to entertain applications seeking protection against infringements of such rights. No similar provision is to be found in the Constitution of the United States and we do not consider that the American decisions are in point.” The court here is of the opinion that Article. 32 is the shield against the infringement of fundamental rights and the Supreme Court is in the position of a guard holding that shield to defend the Part III of the Constitution.
In all those cases where the Supreme Court directly entertainedthe Writ Petition under Article32 the right of the petitioner under Art.19(1)(a) was in the forefront in this case also the petitioner is claiming that his statements in the programme was an exercise of right to freedom of speech and expression under Art.19(1)(a). The petitioner also says that the criminal process initiated against him is an infringement of the said right. By considering this and the fact that the second remedy claimed cannot be issued under the CrPC the Supreme Court decided to hear the petition and decide the case on merit.
What brings this case into a special footing so as to make the supreme court entertain the petition is the presence of questions regarding the exercise of Fundamental Freedom under Article. 19(1)(a).
WHEN FACTS MET WITH LAW; THE SUPREME COURT ON THE MERITS OF THE CASE.
The court observed that the petitioner made no assertion about the Prime Minister and his election campaigns as alleged by the respondents the true translation of the Hindi statements made by the petitioner does not have such contents. It is true that the petitioner has made statements about the inadequacy of testing facilities and other preparedness for facing the pandemic and a national lockdown. He also spoke about the issues in supply chain due to lockdown and about the export policy of the government with regard to medical equipment. His speech was having negligible factual errors. The question here is are these statements a critical appraisal of the governmental policy or a malicious design to create unrest among the people.
The petitioner is pleading that the case should be looked at in the light of the judgement in the case Kedar Nath Singh v. State of Bihar[vii] .
The Supreme Court in the Kedar Nath Sing case while convicting the accused under Section.124A of the Indian Penal Code 1860, have observed that as his statements do not amount to the criticism of any governmental policy or action but is in a nature of incitement of revolution and vilification of the government his action satisfies the requirements of Section.124A of the IPC. With this the inference drawn is that until the statements are criticism or critical appraisal ofthe government measures the offence under Sec.124A is not attracted.
The court later went through decisions which examined the scope of both Article 19(1)(a) its limitation under Article.19(2) of the Constitution and Section 124A of the IPC 1860, and its provisos. The text of all these statutory provisions is given below
- Article 19(1)(a) in The Constitution of India 1949
(a) to freedom of speech and expression;
- Article 19(2) in The Constitution of India 1949
(2) Nothing in sub clause (a) of clause ( 1 ) shall affect the operation of any existing law, or prevent the State from making any law, in so far as such law imposes reasonable restrictions on the exercise of the right conferred by the said sub clause in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offence
- Section 124A in The Indian Penal Code
[124A. Sedition.—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, 102 [***] the Government established by law in 103 [India], [***] shall be punished with 104 [imprisonment for life], to which fine may be added, or with imprisonment which may extend to three years, to which fine may be added, or with fine.
Explanation 1.—The expression “disaffection” includes disloyalty and all feelings of enmity.
Explanation 2.—Comments expressing disapprobation of the measures of the Government with a view to obtain their alteration by lawful means, without exciting or attempting to excite hatred, contempt or disaffection, do not constitute an offence under this section.
Explanation 3.—Comments expressing disapprobation of the administrative or other action of the Government without exciting or attempting to excite hatred, contempt or disaffection, do not constitute an offence under this section.]
The court went into the case Queen Empress v. Jogendra Chunder Bose[viii] where disaffection and disapprobation were distinguished and disaffection was defined as a feeling contrary to affection and disapprobation was held to be simple disapproval. The law never intends to punish disapprovals. But a call for non-obedience of law cannot be seen as an act of disapprobation but as an act of pure disaffection. In this case the petitioner’s statements are not in nature of asking someone to get disloyal to the state or to violate the law.
The court then came across the decision in the case Queen-Empress v. Balgangaddhar Tilak[ix] where the federal court upheld the view that a seditious speech need not incite violence or actions by the people in order to be put under the purview of Section 124A of the IPC. Then the Supreme Court looked into the case Niharendu Dutt Majumdar v. The King Emperor where the Privy Council disagreed with the findings in the BalagangadarTilak case and opined that the offence of sedition is intended to safeguard the governmental function of preservation of public order and not to protect the wounded vanity of the government.
The court finally reached to a conclusion regarding the applicability of Sec.124A with regard to Section 19(1)(a) of the constitutionby emphasising on some points they are:
- The term government has to be distinguished from those people carrying out the functions of government at a particular point of time. The criticism of these officials shall not be treated as disaffection towards the government.
- The statements spreading hatred or disloyalty or disaffection towards the government shall be penalised as it may result in destruction of public order and spread of violence.
- Comments, however strongly worded, expressing disapprobation of actions of the Government, without exciting those feelings which generate the inclination to cause public disorder by acts of violence, would not be penal.
- A citizen has a right to say or write whatever he likes about the Government, or its measures, by way of criticism or comment, so long as he does not incite people to violence against the Government established by law or with the intention of creating public disorder.
- The provisions of the section124A of IPC read as a whole, along with the explanations, make it reasonably clear that the sections aim at rendering penal only such activities as would be intended, or have a tendency, to create disorder or disturbance of public peace by resort to violence.
Also, by relying on some of the judgements where the FIR was quashed on the absence of prima face guilt including the case Patricia Mukhim vs. State of Meghalaya and Others[x] where the FIR charging the offences under Sections 153A and 505 (1) (c) of the IPC was quashed as prima face guilt is absent, the Supreme Court have allowed the first remedy claimed by quashing the FIR.
With regard to the second remedy prayed for the Supreme Court after examining different judgements of its own where it has issued guidelines for prosecution and other processes the prayer was duly rejected as the promulgation of such guidelines would encroach upon the functions of legislature which is not warranted by law. Hence the second prayer is rejected.
ANALYSIS
State, government and bureaucracy could be placed in a concentric circle from inner to outer in that order, though it revolves around the same axis it has a different track and circumference. State, as said in the introduction is the amalgamation of every resource of the people of a nation. Modern living is almost impossible without a state so the state never vanishes away. We were under a state when ruled by the Great Vijayanagar Empire, then in the reign of the Great kingdom of Kochin the people were under a state, at last as the citizens of the Republic of India also we are governed by a state. Out of these three periods what had altered is the character of the government. It evolved from a theocratic Hindu empire to a feudal kingdom to form part of a democratic republic. State is an invisible representation of sovereignty while government is a tangible effigy of the state. A government means the mechanism and institutions through which the sovereign functions. The outer most circle of this concentric system is the bureaucracy or the officials and elected representatives who are running the government in practice. This outer circle is not the government. So that in a society with understanding of rule of law cannot afford the officials who occupies the functional roles of the government being regarded as the government itself. It could be easily depicted using an example:‘In the famous Chiorol Case during the trial of BalaGangadar Tilak in 1919, the replies of Tilak to the questions put in cross-examination by Sir Edward Carson, show the distinction between the two in an interesting manner. In an article, Tilak made a distinction between the criticism of government and the criticism of bureaucracy. Carson in course of Cross-examination asked “But a government must consist of officials. It is not an abstract entity?” “Tilak replied a house consist of rooms but a room does not mean a house”[xi].
The supreme court in this case have underlined and upheld this demarcation between government and officials. Criticism of officials or the policies of the officials should not be understood as disaffection towards the government. As observed in the Jogendra Chunder Bose case disaffection and disapprobation is not the same. In a democratic country like ours the citizens should be in a constant vigil about the functioning of their government. The constitution through the first three fundamental freedoms embodied under Articles. 19(1)(a), (b) &(c) empowers the citizens to speak against the governmental policies if it is unlawful, to assemblepeaceable without arms to protest against those unlawful policies and to form associations to gather legitimate strength to correct those policies. But these are not absolute liberties but qualified freedoms. It is qualified to avoid the abuse of these freedoms and to protect the government which is the fountain of all these freedoms from the anarchy formed out of such abuse. According to Article 13 of the Constitution of India all the laws made should be in conformity with the fundamental rights so the exercise of Section 124A should also be within the constitutional limits. The court through this judgement has once again reminded the officials about those limits. It ensured the triumph of rule of law over rule of the king.
By not allowing the second remedy the supreme court restricted itself to its constitutional function of administration of justice and left the rest for those respective institutions to act on. By doing so the court underlined its commitment to constitutionalism and rule of law.
CONCLUSION
Men are born free. All the restrains we have today is for the betterment of us as a society. Any constraint apart from those facilitating the living of people is slavery any system which enforces such purposeless and unperforming restrictions is a tyranny. The government here is to govern us and not to rule us, as free citizens of a democratic country we are not destined to be ruled but to be governed. While concluding I wish that my words and deeds be an instrument of liberty and democracy.
“ I prefer dangerous freedom over peaceful slavery”Thomas Jefferson
[i](2005)6 SCC 1
[ii](2020)14 SCC 12
[iii](2021)1 SCC 1
[iv](2019) 12 SCC 432
[v]AIR (1957) SC 62
[vi]1950 SCR 594
[vii] (1962) Supp. 2 SCR 769
[viii] (1892) I.L.R. 19 Cal. 35
[ix](1898) I.L.R. 22 Bom. 112.
[x]2021 SCC OnLine SC
[xi]PAS Pillai’s CRIMINAL LAW, 13THEdition, Page no: 382, CITATION: 48
AUTHOR
The author of this article is Dhanush C.A, 9th semester 5 year B.A L.L.B student at Government Law College, Thiruvananthapuram and he is also the member of LJRF Palakkad chapter.
