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Advocates and admirers of democracy measure the success and sanctity of an individual democratic institution by using the scale of ‘freedom of speech and expression’. The sacredness accorded to this freedom is arguably one of the most important yardsticks for the assessment of success in the implementation of democracy. Patanjali Sastri, J. rightly obserbed in Romesh Thapper v. State of Madras[1] that ‘freedom of speech and of the Press lay at the foundation of all democratic organizations, for without free political discussion, no public education, so essential for the proper functioning of the process of popular governments, is possible.’ In such a setup, where the freedom under discussion is most malleable and ductile, thanks largely to the Constitution and the Judiciary, misinterpretation and misapplication of the same is inevitable and self constraint and wise selectiveness on grounds of equity, ethics and Constitutionalism on the part of media and Executive is the need of the hour.
It is in this context that the recent episode involving Ms. Arundhati Roy and City Magistrate of Delhi need to be examined from the viewpoint of the constitutional guarantee under Article 19(1) (a), the reasonable restrictions possible under Article 19(2), the various offences under the Indian Penal code, 1860 and the jurisprudence underlying all these.
Pursuant to the orders of the City Magistrate of Delhi, the police have registered a case against Ms. Arundhati Roy on charges of sedition[2], promoting enmity between two communities[3], assertion against national integration[4] , intentional insult with intent to provoke breach of the peace[5] and statements conducing to public chief[6]. Quoting Ms. Roy: “Pity the nation that has to silence its writers for speaking their minds …………"Kashmir has never been an integral part of India. It is an historical fact. Even the Indian Government has accepted this.” The context and the surrounding circumstances in which these words were used also need to be taken into account in order to assess the gravity of the statement in question and its legal implications. Ms. Roy had made the statement after her visit to Kashmir during a brief period of lull following heightened tension in the valley asserting separatism and calls against Indian Union. After her statement, hue and cry was raised by many sections, particularly right wing Hindu organizations for pressing charges of sedition against Ms. Roy.
The Government after contemplation for a few days came with a press statement – issued on behalf of Home Ministry by P Chidambaram – that criminal prosecution of Ms. Roy would only aid the separatist elements as it would only be another tool in their kitty to sling mud at Indian democracy and Union. However, a plain reading of the Constitutional and statutory provisions providing for and restricting the right in question makes it obvious that the possibility of State being brought under contempt by certain factions cannot be an excuse under the law for the state not to prosecute a person who has exceeded the circumscribed limits of the right under question. Anyone in, any part of India, can through the local police or courts, get anyone hauled up for their views if they find this offensive. If you, for instance, in Chennai or Kakinada, say something which is reported, someone else in Gorakhpur or Agartala who take offence can walk to a local Magistrate and get you summoned there. This can be legally done and the offences are wide ranging too. Anything likely to offend against notions of national sovereignty, public order, religious or community feeling, anything ‘likely to incite’ on these or some other grounds is fair game.[7] It is the way our law is structured.[8]
The author does not have a shade of doubt that except for the offence of sedition under S. 124 A, and intentional insult under Section 504, Ms. Roy’s seems, prima facie, to be liable under the other provisions which have been invoked against her [that is, promoting enmity between two communities (S. 153 A), assertion against national integration (S.153 B), and statements conducing to public chief (S. 505)]. The issue under discussion here is not whether utterances of Ms. Roy seem, prima facie, fall under the head of the offence sedition as defined under S. 124 A[9] of the Indian Penal Code, 1860. As understood in English Law, sedition embraces all those practices whether by word, or writing which are calculated to disturb the tranquility of the State and lead ignorant persons to subvert the Government[10]. In Niharendra v. Emperor[11], the Federal court held that mere criticism or even ridicule of the government was no offence unless it was calculated to undermine respect for the Government in such a way as to make people cease to obey it and obey the law, so that only anarchy can follow. But the Privy Council overruled this decision and held that the offence of sedition was not confined to only incitement to violence or disorder. In Kedar Nath v. State of Bihar [12], the court upheld the view taken by the Federal Court in Niharendra’s case that the gist of the offence of sedition is that the words written or spoken have a tendency or intention of creating public disorder and held that Section 124 A of IPC is constitutionally valid. From the above discussions, it is obvious that there is a lack of clarity when it comes to deciding whether a mere criticism of the Government, which has a tendency to create public disorder, would fall within the purview of Section 124 A. This would, in the opinion of the author, have to be decided in the light of facts and circumstances of the case. In the case on hand, the Government would have done well if it had asserted that there is no offence of sedition, prima facie, discernible in the case. But what is noteworthy is that the Union Home Ministry had sought legal opinion on the issue which suggested that a case could be made out under sedition. However, after taking political opinion, the Ministry decided not to file any case against Ms. Arundhati Roy. Subsequently, a statement was made that the prosecution is not undertaken for the reason that such a move would give unnecessary publicity to them and the handle to the separatists in the Valley. This, however, does not stand in the eyes of law and would amount to dereliction of duty by the Executive. Moreover, the ambiguity existing with respect to sedition and intentional insult does not exist in case of other concerned offences and hence, the State cannot offer any excuse under law for not initiating prosecution for the same against Ms. Roy.
That is, the law as it stands today vigorously asserts action by the State against Arundhati Roy and Rule of Law forbids passiveness on its part on flimsy grounds like what the Government has resorted to in the instant case. Anybody who is disenchanted with this has every right to call for changing the law. Quoting The New Indian Express once again: “It is interesting that Roy has, in her defence, simply appended a set of speeches by earlier prime ministers on the subject of Kashmiri Peoples’ wishes and feelings, asking what she has said that is so different. But even if this were not so, she and other holders of such opinions have the right to express it. This is, we add, the real Indian Heritage, the freedom to think and to explore. Our law blocks this? Then, we are clear: change the law.” Thus, so long as the law remains as it is, the State is obliged to take Ms. Roy to Court.
The argument above finds support not only in law but also in one of the cardinal principles of democracy – rule of law. It is law which rules the system and not vice versa. The object and sacrosanct duty of the system, which itself is a creation of the law, is to be a tool in the implementation of the law which has created it. A natural corollary is that from the President of the Union to a layman, all are equal before the eyes of law. However, the law also empowers the system to amend the law within the constraints of the basic document.
The second issue in this chain of events pertains to the directive of the City Magistrate to the Delhi police to register FIR, and the legality of the same under the provisions of Code of Criminal Procedure, 1973. Section 190 of the Code of Criminal Procedure, 1973 provides for cognizance of offence by Magistrate. Accordingly, a Magistrate may take cognizance of any offence -
(a) upon receiving a complaint of facts which constitute such offence;
(b) upon a police report of such facts
(c) upon information received from any person other than a police officer, or upon his own knowledge, that such offence has been committed..
However, Sections 195 to 199 are exceptions to the general rule contained in Section 190 regarding taking cognizance of an offence. Among them, Section 196 is of special concern. According to the said Section no court shall take cognizance of -
(a) any offence punishable under Chapter VI or under Section 153 – A, Section 153 – B, Section 295 – A or Section 505 of Indian Penal Code or,
(b) a criminal conspiracy to commit such offence, or
(c) any such abetment, as is described in Section 108 –A of IPC,
except with the previous sanction of the Central Government or the State Government.
The object of this restrictive provision is to prevent unauthorized persons from intruding in matters of State by instituting prosecutions and to secure that such prosecutions, for reasons of policy, shall be instituted under the authority of the Government. [13] In the instant case, the City Magistrate of Delhi has issued directive to the police to register a case on a complaint by a private person (Sushil Pandit). Even though the court has only directed the police to register a case, it has done so after making a preliminary inquiry as to whether an offence is, prima facie, manifest or not. This, I submit is against law as Court seems to have looked into the complaint of the private person without the sanction of the state which is required under law. Section 156 (3) does empower the Magistrate to order the police to investigate. However, this is subject to Section 196 because only then the purpose of the said exception under S. 196 would be served. That is, if what has transpired is allowed and Section 156 (3) is read over Section 196 and isolated from it, it would amount to defeating the purpose and object of Section 196 even though the action of the court may not, prima facie, amount to ‘taking cognizance’.
Thus, the writing is crystal clear. Implement (duty of the Executive) the law as it is (law as posited or Positive law); leave the recognition of “ought to be jurisprudence” to the Judiciary by interpretation and implied incorporation; change the law (duty of Legislature) if it is found to be wanting from either of the perspectives (further recognition of “ought to be” jurisprudence).
Above all, let there be no judicial over activism.
[1] AIR 1950 SC 124.
[2] S. 124 A of Indian Penal code, 1860.
[3] S. 153 A of Indian Penal Code, 1860.
[4] S. 153 B of Indian Penal code, 1860.
[5] S. 504 of Indian Penal Code, 1860.
[6] S. 505 of Indian Penal Code, 1860.
[7] Democracy is about Dissent, The New Indian Express, Wednesday, December 1, 2010, p. 8; Article 19(2) of the Constitution lays down that “nothing in sub-section (a) of clause (1) shall affect the operation of any existing law, or prevent the State from making any law, in so far as such law imposes reasonable restrictions on the exercise of the right conferred by the said sub-clause in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign states, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offence”;
[8] Ibid.
[9] Section 124 A of the Indian Penal Code, 1860 which lays down the offence of sedition derives its sanctity from the afore mentioned Article; Section 124 A of Indian Penal Code, 1860 reads as follows: “Whoever, by words, either written or spoken, or by signs, or by visible representations, or otherwise, brings or attempts to bring into hatred or contempt, or excites or attempts to excite disaffection towards the Government established by law in India, shall be punished with imprisonment for life, to which fine may be added, or with fine.
Explanation 1. – The expression “disaffection” includes disloyalty and all feelings of enmity
Explanation 2. – Comments expressing disapprobation of the measures of the Government with a view to obtain their alteration by lawful means, without exciting or attempting to excite hatred, contempt or disaffection, do not constitute an offence under this section.
Explanation 3. – Comments expressing disapprobation of the administrative or other action of the Government without exciting or attempting to excite hatred, contempt or disaffection, do not constitute an offence under this section”.
[10] R. v. Salliven, (1868) 11 Cases 55.
[13] See 41st Report, p. 112, para 15.102.
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