Kedarnath Judgment: Procedural Lapses

There were four appeals before the supreme court wrt Kedarnath judgment on sedition. C.A. 169 of 1957, which arose from the grant of special leave to appeal was dismissed. And the three other appeals, i.e. C.A. 124-126 of 1958, which arose from the certificate granted by the high courts, were allowed and the cases were remanded back to the high courts. The challenge to s. 124A, IPC, was however, same in all the appeals.

In fact, in C. A. 169 of 2015, no direct statements of incitement to violence were made. Only general calls were made to bring in revolution against the capitalists, the zamindars and the “Congress goondas“; and the CID sleuths were called dogs. However, in other appeals, the statements were far more offensive. In one of them, direct calls were made to organize voluntary army and resist govt authorities by using violence. In another, violence was advocated for overthrowing the govt.

However, even then C. A. 169 of 2015 was dismissed. This would make a layperson believe that making calls for bringing in revolution, as in JNU, is sedition. But the reason for the above discrepancy is rather technical. Since C. A. 169 of 1957 didn’t arise from a certificate granted by the high court. The supreme court thus didn’t find it fit to remand the case back to the high court.

However, there was no decision on merits on the facts of the case in any of the appeals before the supreme court. The decision just laid down the law, and since no attempt was made to seek decision of the supreme court on facts, none was rendered. Frankly speaking, this is another instance of callousness of the supreme court, which, it pretty often does, by not rendering decisions on facts even after comprehensive perusal of the same. This left it open for the executive to keep misusing the provision of sedition under the IPC.

Kedarnath Judgment: Bad Law on Sedition

Further, the decision per se is bad law. The question was whether section 124A infringed the right to freedom of expression. Sec 124A is indeed an attack on the right to freedom of expression. Instead of addressing the issue, the supreme court introduced a qualification to the definition of sedition. It stated that intention or tendency to incitement of violence, public disorder, law and order problem, was a qualification to the definition of sedition. And without showing any such intention or tendency, the offense of sedition is not made out. This compromise declared section 124A constitutional albeit with the changed definition.

Sec 124A falls within the chapter dealing with offenses against the state, whose underlying scheme is to punish waging of war against the state, its organs and friends. Violence, public disorder, and law & order problems are covered elsewhere under the chapter dealing with offenses against public tranquility. The simple perusal of the provisions under the two chapters makes it clear that the offenses against the state are far graver than those against public tranquility. The offenses against the state carry severe punishments like death penalty and life imprisonment. Whereas, the offenses against public tranquility carry lesser punishment of 6 months to 1 year imprisonment in most of the cases. The supreme court just failed to realize this scheme of IPC and distastefully mixed the two set of offenses.

Kedarnath is an arbitrary judgment with no independent application of mind. The supreme court relied upon the law existing in the UK as enumerated in an earlier decision of the federal court but never applied its mind independently to it. This judgment has corrupted the scheme of IPC and needs an urgent review.

© 2016 Ankur Mutreja