It will be noticed that the constitutionality of the provisions of the sections under which the appellant was convicted had not been convassed before the High Court. But in the petition for special leave, to this Court, the ground was taken that ss. 124A and 505 of the Indian Penal Code ‘are inconsistent with Art. 19(1) (a) of the Constitution.

It has not been contended before us on behalf of the appellant in C.A. 169 of 1957 or on behalf of the respondents in the other appeals (No. 124- 126 of 1958) that the words used by them did not come within the purview of the definition of sedition as interpreted by us. No arguments were advanced before us to show that even on the interpretation given by us their cases did not come within the mischief of the one or the other section, as the case may be. It follows, therefore, that the Criminal Appeal 169 of 1957 has to be dismissed.

The above paras are quoted from Kedarnath v. State of Bihar; 1962 AIR 955. C.A. 169 of 1957 arose directly from the grant of special leave whereas other appeals (No. 124-126 of 1958) arose from the certificate granted by the High Court. C. A. 169 of 1957 was dismissed, and the other appeals were allowed and the cases were remanded to the HC for decision in view of the law laid down by the SC. C. A. 169 of 2015, which was the Kedarnath case and was dismissed, didn’t make any statements of incitement to violence directly but made calls generally to bring in revolution against the capitalists, the zamindars and the “Congress goondas”; CID slueths were called dogs. However, even then the appeal was dismissed, which would make a legally illiterate person believe that making calls for bringing in revolution as is also the case in JNU case, is sedition. In the other appeals, the statements were far more offensive: in one of the cases direct calls were made to organize voluntary army and resist govt authorities by using violence, and in yet another case violence was advocated for overthrowing the govt. But, ironically, these appeals were allowed and the case was remanded to the HC.

The reason for above discrepancy is that the C. A. 169 of 1957 didn’t arise from a certificate granted by the HC; therefore, the SC didn’t find it fit to remand the case back to the High Court. However, this in no way means there was any decision on merits on the facts of the case in any of the appeals before the SC. The decision just laid down the law, and since no attempt was made to seek decision of the SC on merit on facts, none was rendered. Frankly speaking, this is another instance of callousness of the SC, which it pretty often do by not rendering decisions on facts even after comprehensive perusal of the same. Such instances are numerous: Oleum Gas Leak Case, Zakia Jaffrey Case, Rajesh Talwar Case, etc. This callousness not only did injustice to the appellants in C. A. 169 of 1957 but also left it open for the executive authorities and politicians to keep misusing the provision of sedition under the IPC.

Further, I think the decision on law is also not good. Sec 124A is indeed an attack on “Right to Freedom of Expression”, and intention or tendency to incitement of violence, public disorder, law and order problem, as a qualification to the definition of sedition thereby bringing it under the parameters of constitutionality, is an unfortunate compromise. 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 chapter entitled “Offences against Public Tranquility”. Mere look at the provisions under the two chapters will make it clear that offences against the State are far graver than those against public tranquility. Offences against the State carry severe punishments like death penality and life imprisonment, whereas the offences against public tranquility carry meager punishments of 6 months and 1 year imprisonment in most of the cases.  The SC just failed to realize this scheme of the IPC and distastefully mixed the two set of offences.

I think the Kedarnath judgment is an arbitrary judgment without any independent application of mind. The SC just relied on the law as it existed in the UK and as enumerated in an earlier decision of the Federal Court, but never applied its mind independently, which it could have very well done being a five judge bench. This judgment has corrupted the scheme of the IPC and the “Right to Freedom of Expression”, and it needs to be reviewed at the earliest.

© 2016 Ankur Mutreja