The Supreme Court will examine a petition filed by a retired Army General, who said a nearly 60-year-old judgment of the court that helped sedition survive in the Indian Penal Code was behind time and needed a relook.
A Bench led by Chief Justice of India (CJI) N.V. Ramana on Wednesday listed the case for hearing on July 15 and asked Major-General S.G. Vombatkere (retd.), represented by advocates P.B. Suresh and S. Prasanna, to serve a copy of his petition to Attorney General K.K. Venugopal.
'Criticism is not sedition': SC quotes 1962 ruling
The petitioner argues that the 1962 judgment in the Kedar Nath case , which upheld Section 124A (sedition), a relic of the colonial legacy, was given at a time when doctrines such as ‘chilling effect’ on free speech were unheard of.
“The doctrine of ‘chilling effect’ on speech considers the probability of a legal provision causing psychological barriers in the free exercise of the right... This doctrine had not sufficiently developed in 1962. Even in the US, the doctrine was established only as late as 1967… The most concrete pronouncement on a statutory provision causing a chilling effect on speech is as recent as 2015 in Shreya Singhal v. Union of India,” he submitted.
The Kedar Nath judgment was delivered during an era when the extent, scope and inter-relationship of fundamental rights like liberty, equality and dignity were “rather restrictive”, the plea said.
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In the judgment, the court had reasoned that without Section 124A , the State would be in jeopardy if the government was subverted. It, however, said that Section 124A would apply only to expressions that either intended to or had the tendency to cause violence were punishable as ‘sedition’. The maximum punishment was life imprisonment. The offence was classified as ‘cognisable’ and ‘non-bailable’.
‘A living document’
This judgment could hardly be seen as a beacon of light now, the petitioner contended. He referred to the Supreme Court’s recent judgments decriminalising homosexuality and declaring privacy as a fundamental right as testaments of how the times and attitudes have undergone a “sea change” over the years. “The Constitution is a living document. All constitutional provisions have to be construed with regard to the march of time and the development of law,” he stated.
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The petition said Section 124A criminalised expression based on vague terms such as ‘disaffection towards government’, ‘contempt towards government’, etc. “The provision, by employing phrases like disaffection and contempt toward government, which are incapable of precise definition, causes a chilling effect on speech, constituting an unconstitutional invasion into the right of free speech,” it said.
The Kedar Nath judgment had been “impliedly overruled” in a series of apex court judgments in the past decades. In these orders, the court had clearly held that restrictions on fundamental rights should be for “legitimate purposes” and there should be sufficient safeguards put in place to prevent their abuse by the State. Besides, the burden was on the State to prove that a restriction on fundamental freedoms was ‘necessary in a democratic society’, it submitted.
