Karan Thapar | Sedition: Time for SC to enforce its own rulings

“It is time to define the limits of sedition”, said Justice D.Y. Chandrachud of the Supreme Court on June 1, and his comment was received with considerable applause. I’m afraid it left me puzzled. The Supreme Court did that nearly 60 years ago in the 1962 Kedar Nath Singh case. What we need is meticulous and unfailing enforcement of what the court had laid down as the law of sedition, and not a fresh definition. Perhaps that’s what Justice Chandrachud meant, but it’s not what he said.

Let me explain. In the Kedar Nath Singh judgment, the Supreme Court read down Section 124A of the Indian Panel Code, which is the law of sedition. It first said the section would be limited to “such activities as would be intended, or have a tendency, to create disorder or disturbance to public peace by resort to violence”. It then pointedly added: “We have no hesitation… to limit the application (of this section) to acts involving intention or tendency to create disorder, or disturbance of law and order or incitement to violence”. Frankly, it couldn’t have been clearer than that.

However, at least on four separate occasions thereafter, the Supreme Court reconfirmed this reading down of Section 124A. That first happened in 1995, in the Balwant Singh case, when the court ruled that the “Khalistan Zindabad” slogan is not seditious. Remember, this ruling referred to slogans raised in an open marketplace on the day Indira Gandhi was killed. Despite that the court’s position was clear and forthright: “Raising some slogan only a couple of times … which neither evoked any response nor any reaction from anyone in the public cannot attract the provision of Section 124A”. And then the court significantly added: “The police officers exhibited lack of maturity and, more, of sensitivity in arresting the appellants for raising the slogans… (the slogans) did not constitute any threat to the government as by law established nor could the same give rise to feelings of enmity or hatred among different communities or religions or other groups”.

Thereafter, in the Bilal Ahmed Kaloo case and the Common Cause case, the Supreme Court restated the 1962 ruling. That happened again in 2016 when the court explicitly said: “We are of the considered opinion that the authorities while dealing with offences under Section 124A of the Indian Penal Code shall be guided by the principles laid down by the Constitution Bench in Kedar Nath Singh versus State of Bihar.” Doesn’t this mean there is no doubt or confusion about the Supreme Court’s position?

Yet for those who still have doubts, the Supreme Court delivered a fifth reaffirmation, this time, ironically, three days after Justice Chandrachud’s perplexing comment. A bench presided over by Justice U.U. Lalit in the Vinod Dua case said Section 124A is limited “only to such activities … involving incitement to violence or intention or tendency to create public disorder or cause disturbance of public peace”. This means, both before and after Justice Chandrachud’s comment, the Supreme Court’s position has been made crystal clear, and there’s no need for further definitions of the limits of sedition.

What is needed is enforcement of the law laid down by the court as far back as 1962. This is necessary because the court’s ruling is continuously and deliberately flouted. We need the court to recognise this as contempt and act.

Let me give you a few facts. The website Article 14 claims 65 per cent of the sedition charges against 10,938 individuals since 2010 were brought after 2014. In that category, 96 per cent of sedition cases “for criticising politicians and governments over the last decade” were registered after 2014.

According to Article 14, this amounts to “a 28 per cent increase in the number of sedition cases filed each year between 2014 and 2020 … compared to the yearly average between 2010 and 2014”. Finally, the National Crimes Records Bureau seems to confirm these figures with its own, which show a 165 per cent increase in cases of sedition between 2016 and 2019.

This means not only is the law of sedition repeatedly abused but the amount of abuse is steadily increasing. It also means that for 60 years the Supreme Court’s ruling has been deliberately disregarded by all governments (both Central and state) and their police forces. This is nothing short of contempt. There is no other term for it.

Yet the court has watched in silence. It’s swallowed this disrespect of its rulings. It’s tolerated this defiance of the law. Not once has it objected. Or even commented.

It’s not that the Supreme Court has been equally tolerant and forgiving of other instances of contempt. It took suo moto cognisance of the Prashant Bhushan case even though the attorney general advised against it. So, when elected governments and the police are in contempt -- which has to be worse -- why has it been unwilling to act or even speak out? That may sound like a rhetorical question but, actually, it’s a finger pointing at the court.

So I say today to Justice Chandrachud, it’s not definitions of sedition we need but the enforcement of a law that your predecessors had laid down several generations ago. And, if I’m honest, we need something else as well -- an explanation from the court why it did not speak out and act earlier.

Remember, by failing to do so, it allowed abuse of the law to continue and proliferate. It also accepted disrespect and disregard of its rulings. Simply put, that’s defiance of the law.

But does the Supreme Court also owe us an apology? Since I’m being bold, let me also be precise -- an apology for not defending the law laid down by its own judgments and also an apology for not standing up for its own authority.

The Supreme Court let the country down in 1975 with its ADM Jabalpur ruling. Justice Chandrachud had the moral strength to accept this even though his father was a Supreme Court judge at the time. Isn’t the failure to enforce its definition of sedition for almost 60 years almost as bad? Think of the innocent people -- cartoonists, students, journalists, historians, authors, actors, directors and, by some accounts, little children -- who suffered because the Supreme Court kept silent while the law was blatantly defied. Yes, I think an apology is due.