The only relevant portion in Justice Pratibha Rani’s order on Kanhaiya’s bail plea is paras 54 to 57. I think this order has completely misunderstood the law of sedition. Even though S. 124A has been quoted, it has not been followed. There is no connection between anti nationalism and disaffection against the government. What is punishable under the section is the preparatory actions of waging war against the State by bringing into disrepute the government established by law. And vide Kedarnath judgment, the preparatory actions are not mere words, slogans or writings, but some concentrated effort with intention or tendency to incite violence, create public disorder or law & order problem, or, in other words, disturb public tranquility.

Coming back to Kanhaiya’s bail order, there is no value addition on the law of sedition — though the bail law has been well articulated. The referred Gujarat HC judgment in Hardik  Bharatbhai  Patel  vs.  State  of  Gujarat  &  Ors.  2016 (1) RCR  (Criminal)  542 laying down as  underquoted is actually bad law:

I  am  of  the  view  that  a  speech or  a  statement,  in  which  the  speaker  exhorts  the  persons,  who are  listening  to  him,  to  resort  to  violence,  prima  facie,  could  be said  to  be  intended  to  excite  disaffection  towards  the established  Government  and  amounts  to  an  offence  under Section  124A  of  the  Indian  Penal  Code.

The State has a duty to maintain public tranquility through its various organs including police; mere exhortations to resort to violence would be instigation of some offense under the chapter dealing with offenses against public tranquility, but not sedition. Just any obstruction in the functioning of the State is not sedition. I think sedition shouldn’t be linked to public tranquility, and elsewhere I have separately criticized the Kedarnath judgment; further I think if at all the offense of sedition has to be retained, the preparatory actions should get linked to the scheme of the chapter, which is to deal with the offenses of waging war against the State; of course, this should happen without infringing the right to freedom of expression; whether this can be done is a moot question; however, I think it can’t be done. It is probably this unnecessary linkage between waging war against the State and public tranquility in Kedarnath Judgment that led the Gujarat HC to state a bad law, which has been re-stated in Kanhaiya’s bail order.

However, the Kanhaiya’s order goes a step further and terms any anti-national sloganeering as prima facie sedition. I have not come across any judgment on sedition where an abstract notion of nationalism has been linked to affection towards the State in such a manner. I think the law makers very well recognized the difference between the concrete existence of State and the abstract notion of Nation and never confused the two. In various slogans quoted in the judgment, there is only one slogan “BANDOOK KI  DUM  PE LENGE  AAZADI” which can be said to be a preparation for waging war against the State. But again this slogan can’t exist in vaccuum. It has to be seen in its context. The question to be asked is what was imminent danger of war against the State by raising of the slogan? Was there enough preparation already for waging the war and the slogan per se was essential part of the overall preparation? Or was it just a one-off incident with inherent propensity to be ignored in the otherwise blooming garden of “spring”? Would an insane call of a madman to wage war against the State by firing bombs and missiles on the Rashtrspati Bhawan influence anybody to wage war against the State? If not, mere slogans can’t be sedition.

I am sorry to say but this order intentionally or unintentionally provides fodder to the activities of those anti-nationals who are interfering in the administration of justice with impunity. Otherwise this order is inconsequential and can be conveniently pulped.

Note: Download the order from here

© 2016 Ankur Mutreja