NEW DELHI: Amid a debate over the sedition law in the country, former Supreme Court Justice Ajay Rastogi says the law needs to be re-examined. In an interview with this newspaper, Rastogi, who retired as the Supreme Court’s fourth seniormost judge last month, said the government can make the provision elaborate and clarify the parameters within which the sedition law can be invoked.
Emphasizing the fact that people under the fundamental right to freedom of speech and expression can criticise the government, he said every criticism is not sedition. “Section 124A (sedition) was introduced in the statute during the colonial time. After 20 years of the amendment, in 1891, the matter came up and no case was ever instituted. Were the people not aware at that time?” asked Justice Rastogi.
After 1891, there was an SC judgment in 1962, the Kedar Nath ruling. “Proceeding from 1962 to 2023, amendments have been made and the thought process has changed. Our fundamental right to freedom of speech and expression has now got its own foundation, which did not exist earlier,” he said.
Referring to data on cases against persons under the sedition law, the judge said, “Experience shows that in 2022, 800 matters were registered but 13,000-plus people were implicated in these cases. The question is when the provision was the same in 200 years, what prompted in putting the sedition law so prominently in the shortest period?” he asked.
Under the fundamental rights and with heightened awareness, people want to know how the government is functioning, he said. “People might make loose comments also, but the question is whether in every such case, the law should be invoked,” he said.
“The time has come for the government to add a proviso as to what the parameters could be for which the law can be invoked. People should know in a transparent manner their boundaries, within which one has to proceed to exercise the right to free speech and expression,” said Rastogi, adding that the Law Commission has given its report and that may also be taken into consideration.
Justice Rastogi was also a part of the collegium that appointed judges to the higher judiciary, which he calls a transparent system. He said the presence of “mere aberrations in the system”, besides reservations in the government over some appointments of judges, cannot be the ground to argue against the collegium.
The former judge said, “In the collegium system, it is the CJI and four senior judges who work in tandem for the betterment of the institution. If we were to put the National Judicial Appointments Commission (NJAC) in place, they said there would be the CJI, two senior judges, and two members nominated by a committee of PM, CJI and Leader of Opposition. These persons with their experience, knowledge and background had to take a decision to nominate.
“If five collegium members make a recommendation or NJAC members make a recommendation, is anything different in making the recommendations? Two nominated members may or may not have the background of the system. The law minister has the background of what the litigants’ problems are but all ministers may not have the knowledge of the working of judges. We are not examining ground realities but we are examining selection among the lawyers who are to be made judges and the judges who have the potential to come to this court (SC),” he said.
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Speaking on the collegium’s move of making public objections raised by the Research and Analysis Wing and Intelligence Bureau for the elevation of candidates as high court judges, the judge said that people should know why recommendations are made.
On the release of 11 convicts in the Bilkis Bano case, the judge wondered how this perception arose that SC’s order resulted in their release. “I don’t know how this perception grew. The matter before us came only on a different issue. We were examining if the application for remission was to be filed in Gujarat or Bombay. The court’s judgment was that application is to be filed where the conviction was made.
“Ordinarily, a trial takes place in the same place where the crime has been committed. We took a call since it is an exceptional case where the trial has been transferred. So we said no, the State of Gujarat will take a call. The date of conviction is a crucial day on which policy has to be considered,” he said.