W.P. (C) 773/2021
Petition challenging constitutional validity of Sedition under Section 124A of the Indian Penal Code, 1860
Common Cause filed a petition challenging the constitutional validity of Sedition under Section 124A of the Indian Penal Code, 1860, as being violative of Articles 14, 19(1)(a), & 21 of the Constitution of India.
Sedition is a colonial law that was used expressly to suppress dissent by the British in India. Yet sedition continues to be heavily abused with cases being filed against citizens for exercising their freedom of speech and expression by the law enforcement authorities.
In Kedar Nath Singh v State of Bihar, 1962 Supp (2) SCR 769, the constitutionality of Section 124A of Penal Code, 1860, was tested and upheld because faced with two interpretations of Section 124A, the court applied the Doctrine of Presumption of Constitutionality, to adopt the interpretation which could save the section. As per Kedar Nath, the offence of sedition is complete if the activities tend to create public disorder or disturbance of law and order or public peace. Since then, however, this Hon’ble Court in Navtej Singh Johar v. Union of India, (2018) 10 SCC 1 and Joseph Shine v. Union of India, (2019) 3 SCC 39, has held that the presumption of constitutionality does not apply to pre-constitutional laws as those laws have been made by foreign legislature or body.
Further, the Kedar Nath Case failed to take note of the judgment of Constitutional Bench in Superintendent Central Prison v. Dr Ram Manohar Lohia (1960) 2 SCR 821 wherein it was held that (a) only aggravated disturbance of ‘public order’ as opposed to mere ‘law and order’ could be used to restrict freedom of speech and expression and (b) there should be a direct and proximate connection between the instigation and the aggravated disruption of public order. The aforesaid principle has been affirmed in Rangarajan v. P. Jagjivan Ram, (1989) 2 SCC 574 and Shreya Singhal v. Union of India (2015) 5 SCC 1. By casting ‘the net’ too wide the interpretation given in Kedar Nath falls foul of the judgment of this Hon’ble Court in Superintendent Central Prison v. Dr Ram Manohar Lohia (1960) 2 SCR 821.