On the 5th of May, a three-judge bench of the Supreme Court will begin hearing a challenge to the constitutional validity of Section 124A of the Indian Penal Code (the offence of “sedition”). A series of administrative moves over the past one week – such as restricting arguments to one counsel, resisting the addition of further petitions to the case, and setting aside two specific days for arguments – suggests that the bench, which is led by the Chief Justice, intends to substantively hear the case, and issue a judgment (probably after the summer break). In this blog post, I will examine some of the constitutional issues in this case.
Preliminary Issue: Referral
This is not the first time that the Supreme Court is hearing a challenge to the constitutional validity of sedition. In 1962, in the Kedar Nath Singh judgment, a five-judge bench of the Supreme Court considered the question, and upheld the constitutionality of Section 124A. Under our constitutional jurisprudence, judgments of the Court can be reversed at a later date (the most striking recent example was the reversal of the judgment in Koushal by the judgment in Navtej Johar, on the decriminalisation of same-sex relations); however, ordinarily, this can only be done by a larger bench. Because Kedar Nath Singh was decided by a bench of five judges, it would need a bench of seven judges – or more – to reverse it. Benches of five or less are bound by Kedar Nath Singh. Note that this is not pedantry or hair-splitting: in a Supreme Court that has thirty or more judges at any given time, and which hears cases in panels of two, judicial discipline when it comes to precedent is particularly important. If departure from this rule was to become commonplace, the Supreme Court’s jurisprudence would lose its anchor, with any decision (including “good judgments” from the past) potentially subject to radical revision at any moment. This is also of particular importance at a time when ambush PILs – often seeking outrageous reliefs – are regularly filed before the Courts, and sometimes even entertained.
In the ordinary course of things, therefore, if the three-judge bench feels that the time has come for the Supreme Court to reconsider the issue, the correct course of action is to refer the case to a bench of five, which will – in turn – refer it to a bench of seven. There has been some argument that this is not necessary, as the judgment in Kedar Nath Singh has been “eroded” by time. That may well be correct, but that is not a call for a smaller bench to make. Even if it is true the foundations of Kedar Nath Singh can no longer stand because of subsequent developments in the law, on the specific point that it has decided – i.e., the constitutional validity of sedition – Kedar Nath Singh continues to bind smaller benches.
There is, however, one exception to this rule, and that is the doctrine of per incuriam. A judgment is per incuriam if it is passed in ignorance of either a binding statute, or a binding court judgment. Notice that the threshold is a high one: it is not sufficient to say that judgment A misinterpreted the law, or misunderstood judgment B. One has to show that there was a law or a judgment that was binding, and was ignored by the Court. However, once this high threshold is met – i.e., a judgment is per incuriam – then it is deemed to have no existence in law, and subsequent benches – including smaller ones – can proceed as if it did not exist.
It is my submission, therefore, that the three-judge bench can only decide the constitutional validity of sedition, without reference to a larger bench, if it first finds that the judgment of Kedar Nath Singh is per incuriam.
Is Kedar Nath Singh per incuriam?
In my opinion, there are good reasons for arguing that the judgment in Kedar Nath Singh is per incuriam. In Kedar Nath Singh, the finding that Section 124A was constitutional was based upon the argument that the words “disaffection”, “hatred”, or “contempt” against the government established by law – the gravamen of the offence – entailed within them a requirement that the seditious words must carry a “tendency” towards public disorder. The Supreme Court borrowed the word “tendency” from prior judgments of the pre-Independence Federal Court, which had considered how to interpret S. 124A. The Supreme Court held that this “tendency” to public disorder test was consistent with Article 19(2) of the Constitution, which requires that any restriction upon the freedom of speech and expression be “reasonable.”
In doing so, however, the Supreme Court failed to notice the existence of a judgment by a bench of equal strength, that was binding upon it. Two years before, in Superintendent v Ram Manohar Lohia, the Supreme Court had held that the legal test under Article 19(2) requires there to be a proximate connection between the speech and the (feared or actual) public disorder. For example, inciting a mob to go and burn down a building meets the test of “proximity.” However, giving a public speech asking people to disobey a tax law – which was the issue in Lohia – does not meet the test of “proximity”, as there is a wide gap between a call for civil disobedience, and the threat of a violent revolution (for details, see Ch. 3 of Offend, Shock, or Disturb: Freedom of Speech under the Indian Constitution, by the present author).
The judgment in Kedar Nath Singh ignored the binding judgment in Lohia, and the legal test of proximity. Instead, its “tendency” test – which was the basis upon which S. 124A was upheld – does not carry with it the proximity requirement. This is evident: the word “tendency”, by its very nature, is boundless and boundlessly manipulable. As G.D. Khosla wrote, for instance:
Anything may have a tendency for almost anything. A lamp post may be taken as a phallic symbol, a convenient object for canine relief, a source of light, evidence of civilization, something to lean against when waiting for a bus or something to demolish in order to demonstrate a sense of rebellion or discontent. So what is the tendency of a lamppost? (G.D. Khosla, Pornography and Censorship in India).
Kedar Nath Singh, therefore, meets the strict threshold fo a judgment to be per incuriam. It ignored binding precedent, and in consequence of that, applied the wrong constitutional test in order to uphold the constitutionality of sedition.
The Unconstitutionality of Sedition
With Kedar Nath Singh out of the way, it is therefore possible for the three-judge bench to hear and decide the constitutionality of sedition.* And it is at this point that I believe that the argument becomes simple and straightforward. Over the last sixty years, the Supreme Court has steadily refined the proximity requirement under Article 19(2) of the Constitution. In Ram Manohar Lohia, it required the link between speech and disorder to be “proximate.” In S. Rangarajan v P. Jagjivan Ram, it required that the link be like a “spark in a powder keg.” In Arup Bhuyan, it adopted the Brandenburg standard of “incitement to imminent violence.” This was then affirmed in Shreya Singhal, where the Supreme Court categorically distinguished between “advocacy” (of disorder and violence) and “incitement”, and noted that only the latter could be lawfully prohibited in a manner that was consistent with the right to free speech.
There are strong reasons why this is the correct approach: these have to do with the point of free speech in a democracy, the need to respect the autonomy of both speakers and the audience, and to ensure that the responsibility for an illegal act lies on the person who actually does it, and constraining the State from having too much power to decide what speech is acceptable and what isn’t. However, we do not need to go into those arguments in too much detail for this post, as our purpose here is to set out the law as it is. In this context, given that the correct test is that of “incitement to violence”, it is evident that there is no interpretation of s. 124A that can square the words of the section with the legal test. s. 124A punishes anyone who “by words, either spoken or written, or by signs, or by visible representation, or otherwise, brings or attempts to bring into hatred or contempt, or excites or attempts to excite disaffection towards, the Government established by law in [India].” No amount of interpretive pyrotechnics can bridge the gap between “bringing into hatred, contempt … or disaffection” with “incitement to violence.” I can try to persuade you to hate a thing, to have contempt for it, and to be disaffected by it, without any attempt to incite you to violence against it. The states of mind are entirely separate.
S. 124A, therefore, is “over-broad”: it criminalises speech that can be lawfully punished (incitement to violence) as well as speech that is entirely within the bounds of law (non-violent but critical speech). That – without anything more – is sufficient for the Court to declare it to be unconstitutional. The argument may sound simplistic, but that really is all that there is to it: over the years, courts at all levels have tied themselves into knots trying to reconcile the wide and vague language of s. 124A with the actual legal test. They have had to do so because Kedar Nath Singh gave them no other choice; but the opportunity is now here to cut the knot once and for all.
A final question may be raised: is there any real point to this hearing? We have seen over many years that sedition is not the only – and indeed, not even the most virulent – legal provision that can be used to incarcerate inconvenient people. That dubious honour belongs to a range of preventive detention statutes – but also, specifically, to Section 43(D)(5) of the UAPA, which prohibits the grant of bail as long as there is a “prima facie” case against an accused. The removal of “sedition” from the statute books, therefore, might be little more than symbolic: all it will do is remove one string from a bow that already has far too many of them.
This is not an inaccurate critique. When a Trial Court or a High Court refuse to grant bail, they cite the UAPA judgment in Watali, not the sedition judgment in Kedar Nath Singh. A reconsideration or reappraisal of Watali – and indeed, the broader bail jurisprudence in the country (see e.g. the work of Abhinav Sekhri on this) – would do more for civil liberties than the striking down of sedition. That said, however, there is good reason why – if the Court does strike down sedition – the judgment will be more than just symbolic. This is because – as I have indicated above – striking down sedition will require a reiteration of the incitement standard. This reiteration is important, Article 19(2) applies to both sedition and the UAPA. Indeed, a significant number of bail denials in recent times stem from a mis-construal of the incitement standard. A recent example – although not a denial of bail (yet) – was the Delhi High Court questioning parts of Umar Khalid’s speech (for which he is incarcerated under the UAPA): for instance, his use of words such as “krantikari” and “inquilabi”, and his criticism of the Prime Minister. Under a proper appreciation of the incitement standard, these questions are not even remotely relevant: the incitement standard requires a clear and cogent showing of how a person is instigating a set of people to imminent violence. This is not to be implied from inferences or speculation about the speaker’s motives, but has to be staring at you in the face (hence the colourful image of the “spark in a powder keg”).
Thus, a strongly reasoned Supreme Court judgment on the constitutionality of sedition – one that reiterates the incitement standard – would indeed go beyond mere symbolism. It would add to the body of pro-civil liberties legal doctrine in India, and would be of some assistance in attempts to check State impunity and abuse of power under other laws such as the UAPA. Of course, how much of a help it would be depends upon the Court’s eventual reasoning, and how strongly and in what way – in the immediate future – it becomes embedded in our jurisprudence.
* I still believe that referring to bench of five would be more proper, and would also make for more enduring jurisprudence, but perhaps that ship has sailed.