The Supreme Court should protect the freedom of speech and expression under the “basic structure principle” of the Constitution, a group of 108 former civil servants said in a statement released by the Constitutional Conduct Group on Sunday.
The “basic structure principle” should ensure that restrictions on speech and expression must only be imposed if they are “likely to result in imminent violence or restrict the freedom of speech and expression of others”, the statement noted.
The statement came exactly a month after the Supreme Court put the colonial-era sedition law – Section 124A of the Indian Penal Code – in abeyance and requested state governments and the Centre to not file any new cases under the rule till it is re-examined.
The sedition law states that whoever “brings or attempts to bring into hatred or contempt, or excites or attempts to excite disaffection towards the government established by law in India” can be held to have committed the offence of sedition.
On Sunday, the Constitutional Conduct Group said that the Supreme Court’s interim order deserves only a “muted cheer”.
“Whether or not Section 124A is finally deleted or altered, it will make little difference to the common citizen in so far as freedom of speech and expression as spelt out in Article 19(1) of the Constitution is concerned,” it said. “This is because, apart from Section 124A of the IPC, there are several other provisions in the IPC and other Acts which shackle this fundamental right of citizens and leave them open to arbitrary arrest and prosecution by the government.”
The signatories to the statement pointed out that several provisions of the Indian Penal Code, apart from Section 124A, are “routinely misused” by the police and politicians to stifle freedom of speech and expression.
Sections 153A(promoting enmity between different groups), 153B (imputations, assertions prejudicial to national integration), 505 (statements conducive to public mischief) and 505(2) (statements creating or promoting enmity, hatred or ill-will between classes) of the Indian Penal Code and provisions under the Unlawful Activities (Prevention) Act are examples of such laws, the former civil servants said.
“Over the years, slowly and surreptitiously, the substance of the offence of sedition has been snuck into the Unlawful Activities [Prevention] Act, 1967, defined more elaborately, and with more draconian consequences, than in Section 124A,” the group added.
The signatories said that if the Supreme Court holds Section 124A as unconstitutional, then the UAPA should also be amended.
“Deleting Section 124A from the IPC, while retaining criminalisation of unlawful activities under the UAPA, will give substantial political advantage to the Union government and the party in power at the national level,” it said.
The statement also noted that while the state governments have the power to prosecute under the sedition law, the UAPA vests no powers with the state governments.
“Deleting Section 124A of the IPC will mean that the power to prosecute those who promote unfavourable opinions against the government will rest solely with the Union government,” the signatories said. “This provides a major incentive for the Union government to delete Section 124A under the pretext of protecting human rights while in reality strengthening its ability to suppress liberty in an even more draconian manner.”
Also read: Why experts are sounding a cautionary note about the Supreme Court’s sedition order
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