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This interview, first published on March 2, 2021, was republished on May 8, 2022, in the light of the Supreme Court considering PILs challenging the law.
New Delhi: In an outspoken interview where he does not mince his words, a recently retired judge of the Supreme Court has said Section 124A of the Indian Penal Code, which is the Law of Sedition, should be “immediately abolished”. Justice Deepak Gupta says that it is used by governments to create fear in the citizenry to prevent or throttle dissent. He said the law is widely misused and, worse, cases of its misuse are increasing “exponentially”.
Justice Gupta also said that nearly 60 years ago in 1962 the Supreme Court, in the Kedar Nath Singh case, had read down Section 124A and it now only applies if there is incitement to violence. That is a necessary ingredient and without that incitement Section 124A i.e. the sedition law cannot be used. However, he said, magistrates across the country seem to be unaware of this or are ignoring it even though the Supreme Court, on repeated occasions, has reaffirmed this reading down and there can be no doubt or confusion about the Supreme Court’s position. This means that Section 124A is no longer what it says in print. It has been read down and is very limited and restricted in its application. That, he added, is the law of the land.
In a 36-minute interview to Karan Thapar for The Wire, Justice Gupta said that whilst his first preference was for the Law of Sedition to be immediately abolished, his second was for the Supreme Court to lay down detailed guidelines about how the police should apply the charge. He said it is essential that before it is invoked the decision to do so should be countersigned by a senior police officer. He hoped that the Supreme Court would lay down such guidelines soon.
However, despite repeated questioning, Justice Gupta refused to agree that the Chief Justice, who has the power to raise subjects suo motu, should raise the twin issues regarding Section 124A – the manner in which it’s being misused and the sharply rising cases of misuse. Justice Gupta said the Supreme Court has to wait for a PIL or a challenge to be filed and that would be the proper way to go into this issue. He did not believe the Chief Justice should use his suo motu powers to look into this issue.
When questioned, Justice Gupta also said that if he was Chief Justice he would not use the office’s suo motu powers to challenge the validity of the Law of Sedition, even though he believes the law should be immediately abolished.
Justice Gupta told The Wire that he believes a challenge against Section 124A has, in recent years, been filed and he thinks it has been sent to a high court rather than heard by the Supreme Court itself. Although he would not say he was disappointed by this response from the Supreme Court, Justice Gupta did say that he thought it should have been immediately heard by the Supreme Court itself.
In The Wire interview, Justice Gupta was questioned about three recent cases where the police have invoked charges of sedition.
First, the Disha Ravi case. Justice Gupta said it was definitely not sedition to edit a toolkit or tweet its contents. He said he had examined the toolkit and there was nothing seditious or even criminal in its content. He also said that it was not seditious or even a crime for Disha Ravi to be involved in a webinar with members of the Poetic Justice Foundation, an organisation which is anyway not banned.
In this connection, Justice Gupta was also asked if it’s seditious or even a crime to talk to someone who champions Khalistan or is a member of a banned organisation and his clear answer was that its neither i.e. not sedition and not a crime.
Secondly, Justice Gupta said it was not sedition for journalists to tweet they had been told a protester on Republic Day had died because he was shot, something the man’s grandfather claims to be the case. Justice Gupta said even if the content of the tweet is wrong it’s neither sedition nor a crime. He said, it could, arguably, be poor journalism but it’s not a crime.
Finally, Justice Gupta was asked, given in 1995 the Supreme Court ruled in the Balwant Singh case that it’s not sedition to shout ‘Khalistan Zindabad’ – something that happened the day Indira Gandhi was killed and in a public square – is it sedition for JNU students to shout ‘Bharat tere tukde tukde honge inshallah inshallah’? This time he said it would only be sedition if the police could directly link this call or slogan to an act of violence. He said over three years have passed and no such evidence or proof has come forward. Therefore, he said, he does not believe this is likely to be sedition.
The important point Justice Gupta made is that by itself the slogan ‘Bharat tere tukde tukde honge inshallah inshallah’ is not sedition and will only become sedition if the police can prove it was an incitement to violence.
Justice Gupta told The Wire that he completely agrees with the junior judge who, whilst granting bail to Disha Ravi last month, said the Law of Sedition is being used “to minister to the wounded vanity of governments”. He pointed out that this is, in fact, a quotation from Sir Maurice Gwyer, who, as Chief Justice of India, first read down the Law of Sedition in the 1940s only to be overruled by the Privy Council in London.
In The Wire interview, Justice Gupta was questioned at length about how the Indian people are likely to interpret the Supreme Court’s failure to speak out and intervene when it knows that for decades the Law of Sedition is being misused and that cases of misuse are increasing exponentially. He was asked whether this misuse, which is a deliberate disregard of the Kedar Nath Singh judgement, is not just disrespect but also defiance of the Supreme Court and, therefore, contempt but did not seem to fully agree. Instead, he said there are many instances of the Supreme Court’s orders not being obeyed.
Justice Gupta was also asked whether he was worried the Indian public would view the Supreme Court’s silence, as misuse of sedition continues and increases, as an indication that the court has no problem with this misuse or, even, as possible complicity and this time he strenuously disagreed with this view.
Watch the full interview here.