KOCHI: With the Supreme Court putting on hold section 124A of the Indian Penal Code, the legal fraternity in Kerala has urged the government to withdraw all prosecutions under the sedition law. The apex court on Wednesday put on hold the colonial-era law and directed the government not to file new FIRs till it was re-examined.
Welcoming the Supreme Court verdict to keep in abeyance the sedition law till the Union government reconsiders the provision, Justice B Kemal Pasha, retired judge of the Kerala High Court, suggested that there should be a set of guidelines to be followed before invoking the sedition law. "I am not saying that sedition as such should be removed from the Indian Penal Code. But misuse of this has to be stopped for which sufficient guidelines have to be prescribed," he said.
"The paramount right of a citizen in a democracy is to criticise the government. Only then can democracy proceed on the correct lines. If a citizen is not given the right to criticise the government, then it cannot be a democracy at all. It will be an autocracy. In the case of autocracy, a person has no right to criticise the government. The provision regarding sedition is now widely being misused to suppress those raising their voice against the government. If a person criticises the Prime Minister, it will be presently treated as sedition. Similarly, if a person is criticising the Chief Minister of a state, it will also be categorised as an offence under sedition," he said.
"Innocent persons who are raising voices against the misdeeds of the government are now being put behind bars under this provision. The sedition provision is being widely misused now. Therefore it is high time to end such activities. Similar provisions are there of course in the Unlawful Activities (Prevention) Act (UAPA) also. That also is a draconian law which is being misused widely," he added.
Citing the COFEPOSA Act, which provides for preventive detention in certain cases for the purposes of conservation and augmentation of foreign exchange and prevention of smuggling activities, he said that it cannot be misused, because there is a COFEPOSA board and sufficient guidelines to review the cases under the Act. But here, when a person is put behind bars under the sedition offence, there are no guidelines or measures to review whether the citizen has committed the sedition offence or not, said Justice B Kemal Pasha.
Former Director General of Prosecution Kerala T Asaf Ali termed the SC order highly commendable. He said, "It is in effect a slap on the face of the Narendra Modi government, which invoked this colonial penal law indiscriminately against political opponents to silence all kinds of dissent. It is really a shame that the Union government adopted dilatory tactics in the Supreme Court to get the case deferred with a view to avert an adverse order in the matter."
He said that the circumstances in which this colonial law was enacted were totally different. "It was mainly intended to silence national leaders like Mahatma Gandhi and Bal Gangadhar Tilak who made scathing attacks against British inaction while taking preventive measures in combating the spread of plague in Mumbai and other parts of the country during the British regime. Gandhiji was convicted when produced before a magistrate under the charge of sedition. When Gandhiji was arrested under 124 A, he said it was his duty to criticise the erring British government. Bal Gangadhar Tilak was convicted and sentenced after publishing an article in his magazine," he said.
"This colonial law is outdated in view of the freedom of speech and expression guaranteed under Article 19 (a) of the Constitution of India. In view of the order of the Supreme Court, I urge the Centre and state governments to withdraw all prosecutions charged under section 124 A of IPA by invoking prerogative power under section 321 of the Code of Criminal Procedure," added Asaf Ali.
Advocate Raghul Sudheesh of the High Court of Kerala said this is indeed a historic order. "This has been long overdue and it's welcome that the apex court of the nation has intervened at least now. This colonial provision has been grossly misused by all the governments to suppress voices of dissent. This provision has absolutely no place in a democracy like ours. I sincerely hope that the present government will take a stand to take down this law. Even the UK government has abolished this and there is no reason we should shy away from doing it," he said.
According to Raghul Sudheesh, the present order will definitely help those who are already charged under this draconian law to obtain bail. Further no new FIRs can be filed under this provision. Effectively the Supreme Court has paused the working of the sedition law completely till the government takes a call on the issue. There are more than 13000 people already jailed under this provision in over 800 cases and this shows probably the extent to which the provision has been misused and had worked in favour of gagging voices of dissent, he added.