By: Dhruv Bhatnagar
The Supreme Court’s (hereinafter “SC”) decision to quash sedition charges against veteran journalist Vinod Dua, has been welcomed as a win for free speech. Dua was charged following a complaint lodged by BJP member Ajay Shyam, alleging that on the March 30, 2020 episode of ‘The Vinod Dua Show’ on YouTube (hereinafter “Video”), Dua accused Prime Minister Modi of politicising terror attacks, made false claims about the Government’s lack of preparedness for the COVID-19 pandemic and statements which could result in panic induced flouting of lockdown norms.
This piece explains the rationale behind SC’s decision to acquit Dua, demonstrates the inadequacy of protection conferred against prosecution for sedition under Section 124A of Indian Penal Code, 1860 (hereinafter “IPC”) by the Vinod Dua verdict, and highlights ongoing litigation which could pave the way for ridding India of its oppressive sedition law.
THE VERDICT IN A NUTSHELL
For assessing the Video’s legality, the SC was guided by its decision in Kedar Nath Singh v. State of Bihar, which upheld Section 124A of IPC’s constitutionality, but limited its applicability to utterances inciting violence or having the intention or tendency to create public disorder or disturb public peace. In Kedar Nath, the SC also found that the explanations to Section 124A IPC clarified that even strongly worded criticism of “public measures or comment on Government action” would not constitute sedition.
In its Vinod Dua verdict SC reasoned that even Dua’s most allegedly egregious remarks regarding unfair exports of respiratory devices and sanitizers from India, inadequacy of information regarding the availability of PPE suits and masks, and apprehended food riots due to disrupted supply chains, could at best be termed an expression of disapprobation against Governmental actions, which Kedar Nath allows. Accordingly, the SC held that Dua’s prosecution for sedition, for speech which is well within the confines of legality prescribed in Kedar Nath, would be a clear violation of his freedom of speech and expression.
ADEQUACY OF PROTECTION AFFORDED
Laudable for defending speech that was merely critical of Governmental actions, the Vinod Dua verdict does little to shield dissenters against misuse of Section 124A IPC. To this end, Dua had sought a direction requiring the police not to register FIRs against media personnel with over a decade’s experience, without obtaining clearance from a committee to be constituted by every State Government. However, the SC rejected this prayer stating that passing such a direction would lead to judicial encroachment in a field reserved for the legislature. Although this rationale is defensible, perhaps SC’s ruling would have assumed greater significance if it had chosen to focus on the intent behind Dua’s prayer rather than its formulation and developed safeguards to curb the scattergun approach of the police in registering sedition cases. Potentially, these safeguards could have been formulated along the lines of the pre-conditions for invoking Section 124A IPC, proposed by the Maharashtra Government and validated by the Bombay High Court in Sanskar Marathe, including:
(i) conducting an objective evaluation, in light of SC precedents, of whether reported speech attracts the elements of Section 124A IPC; and
(ii) obtaining written legal opinions from the Law Officer of the concerned District, followed by the State’s Public Prosecutor.
In Vinod Dua, the only protection the SC offers to “every journalist” against prosecution for sedition are the limitations built into the scope of Section 124A IPC by its six-decade old Kedar Nath decision, which as explained below is far from adequate.
SHOULD KEDAR NATH REMAIN THE LAST WORD ON SEDITION?
Post Kedar Nath’s pronouncement, Section 124A IPC has been frequently abused to subject dissenters to unjust pretrial detention, with recent instances widely perceived as misuse of sedition law, being the arrests of environmental activist Disha Ravi, politician K. Raghu Ramakrishna Raju and journalist Siddique Kappan. This demonstrates the inadequacy of Kedar Nath in curbing wanton invocation of this stringent penal provision and merits an expedient judicial reconsideration of this verdict, during which both the verdict and the draconian law whose legitimacy it safeguards, deserve to be cast aside for at least the following reasons:
1. In Kedar Nath, the SC declared Section 124A IPC constitutionally valid by finding that it was enacted in “the interests of… public order”. Essentially, through textual calisthenics, the SC saved this provision from unconstitutionality by reading-into it an expression, from Article 19(2), which is conspicuously absent in the provision’s text.
However, while doing so the SC failed to consider the interpretation accorded to this expression in Supt., Central Prison, Fatehgarh v. Ram Manohar Lohia, wherein a coordinate bench had held that:
(i) the term ‘public order’ is synonymous with public safety and tranquillity and the absence of disorder involving breaches of local significance; and
(ii) restrictions imposed ‘in the interests of public order’ must have a proximate relationship to the achievement of public order. Had the Lohia verdict been relied upon in Kedar Nath, the SC may have discerned that simply exciting ‘disaffection’, ‘contempt’ or ‘hatred’ against the Government, which Section 124A IPC proscribes, does not reasonably prejudice public safety or tranquillity. Therefore, the relationship between this penal provision and its objective of ensuring ‘public order’ may be too remote to sustain its validity.
2. Indian jurisprudence on free speech has evolved significantly since Kedar Nath, with subsequent SC rulings calling for a more “proximate and direct nexus” between expression and apprehended danger to public interest, akin to a “spark in a powder keg”. In Shreya Singhal, the SC actually tightened the threshold for triggering reasonable restrictions under Article 19(2) by clarifying that only ‘incitement’ and not ‘advocacy’ could be curbed by law. This effectively replaces the vague ‘tendency to disrupt public order’ formulation theorised in Kedar Nath with a much stricter ‘incitement’ requirement that protects free speech. Plainly, even a stretched interpretation of Section 124A IPC would not satisfy this requirement.
3. The SC in Shreya Singhal also famously struck-down Section 66A of the Information Technology Act, 2000, which broadly criminalised online messages causing ‘annoyance’, ‘inconvenience’ or ‘insult’, for being unconstitutionally vague and overbroad. These ills plague Section 124A IPC too since it seeks to penalise with up to life imprisonment, ‘disaffection’, ‘hatred’ and ‘contempt’ against the Government, terms which are not adequately defined and broad enough to take even protected speech within their sweep. Kedar Nath’s equally wide ‘tendency to disrupt public order’ standard, does nothing to correct the inherent flaws of vagueness and overbreadth apparent in Section 124A IPC.
Empirical data by the National Crime Records Bureau, revealing a 165% increase in arrests for sedition between 2016 to 2019, then comes as no surprise considering that the vague verbiage of this provision makes it a potent weapon for the police to penalise ‘thought crimes’. However, the more telling statistic is the fall in conviction rates from 33.3% in 2016 to a meagre 3.3% in 2019, indicating that most sedition charges levelled by the State are too frivolous to withstand trial.
4. At the time of its enactment, Section 124A IPC’s necessity could have arguably been justified as a tool to prevent violence and public disorder. However, since then specialised, anti-terror and national security laws, including the Unlawful Activities (Prevention) Act, 1967 and the National Security Act, 1980, seeking to penalise similar activities as Section 124A IPC including causing “disaffection against India”, have been enacted. This calls into question the provision’s utility, as any legislative lacunae which it sought to fill no longer exist today.
WINDS OF CHANGE?
Recently, a three-judge bench of the SC in Kishorechandra Wangkhemcha & Anr. v. Union of India, agreed to consider a challenge to the validity of Section 124A IPC, filed by journalists who were charged with sedition for being critical of political leaders and circulating political cartoons on social media. Here, petitioners have reportedly argued that Section 124A IPC:
(i) has outlived its utility;
(ii) violates India’s international obligations under conventions such as ICCPR; and
(iii) has a chilling effect on free speech.
Subsequently, through its May 31, 2021 order in another sedition case , a coordinate SC bench, while staying coercive measures against Telugu news channels charged with sedition for broadcasting speeches which were allegedly offensive to the Andhra Pradesh Government and its Chief Minister, observed that the “ambit and parameters” of Sections 124A, 153A and 505 of IPC, require interpretation in the context of “the right of the electronic and print media to communicate news, information and the rights, even those that may be critical of the prevailing regime in any part of the nation”.
These developments are arguably more significant than the Vinod Dua verdict since, not content to simply reiterate outdated precedents, in these cases, the SC has expressed willingness to re-examine the contours and validity Section 124A IPC. Bound by settled tenets of judicial discipline, these benches cannot overrule Kedar Nath pronounced by a larger five-judge bench and declare Section 124A IPC invalid. However, it remains to be seen if in any of these cases, the SC creates the much needed safeguards to curb unwarranted prosecution and arrests for sedition, or exerts power under Article 145(3) and refers the issue regarding Section 124A’s legitimacy to a larger bench which can finally set aside this un-democratic penal provision for being unconstitutional.
 Writ Petition (Criminal) No. 106/ 2021
 M/s Aamoda Broadcasting Company Private Limited & Anr. v. The State of Andhra Pradesh & Ors., Writ Petition (Criminal) No. 217/ 2021
(Dhruv Bhatnagar is litigation lawyer based in New Delhi, India, and a 2017 law graduate of Gujarat National Law University, Gandhinagar. He may be contacted via mail at @firstname.lastname@example.org
Cite as: Dhruv Bhatnagar, ‘Supreme Court’s Vinod Dua verdict: Significant victory for freedom to dissent or missed opportunity?’ (The RMLNLU Law Review Blog, 8 July 2021) <https://rmlnlulawreview.com/2021/07/08/supreme-courts-vinod-dua-verdict-significant-victory-for-freedom-to-dissent-or-missed-opportunity/> date of access