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Updated on: Sunday, October 10, 2021, 11:15 PM IST

FPJ Legal: Supreme Court should scrap sedition law, says ex-Judge Rohinton Fali Nariman

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Supreme Court |

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Former Supreme Court judge Justice Rohinton Nariman has urged the top court to strike down offensive portions of the Unlawful Activities (Prevention) Act, 1967 (UAPA) and Section 124A of the Indian Penal Code which criminalises sedition, reports Bar and Bench legal portal.

Justice Nariman said that the Supreme Court should not leave it to the government to remove the offending laws from the statute book but should instead use its powers of judicial review to strike down the law, so that citizens can breathe more freely.

"I would exhort the Supreme Court to not send sedition law cases pending before it back to the Centre. Governments will come and go (but) it is important for the court to use its power and strike down Section 124A and the offensive portion of UAPA. Then citizens here would breathe more freely," he said.

He was speaking at a function organised by Viswanath Pasayat Memorial Committee on Sunday.

Justice Nariman in his speech said that sedition was not there in the original Indian Penal Code (IPC) drafted by Lord Thomas Babington Macaulay though it was present in his draft version.

"Sedition provision was there in draft but not in final book. But it was later discovered and re-drafted. It was said that this section was left out by oversight. The wordings were also vague. Sentence under 124A was enormous as it was transportation for life and imprisonment for three years," he said.

Justice Nariman then recounted how the British used the law against Indians including prominent freedom fighters.

"There was the Bangobasi case. In that, an editor of newspaper Bangobasi was charged for publishing an article that spoke against the Age of Consent Act in relation to child marriages. The author (of the article) said that child marriage was inherent in Indian culture. British judge was not charmed and, therefore, held that editor was liable under Section 124A," Justice Nariman said.

He also elaborated on how freedom fighters like Bal Gangadhar Tilak, Mahatma Gandhi and Jawaharlal Nehru were convicted for sedition for speaking against the colonial government.

"Gandhiji said affection (towards government) cannot be measured by law. He said disaffection should be given full hand unless it leads to violence. He said he considered it a privilege to be charged under Section 124A," Justice Nariman state.

Gandhiji was sentenced to 6 years and he served 2 years. Jawaharlal Nehru too served years in 1932 and 1934 for sedition, Nariman added. He also spoke at length about how Tilak was tried for sedition on more than one occasion, with Mohammad Ali Jinnah acting as Tilak's defence counsel on one occasion.

The former judge also said how sedition was initially part of the exception to free speech under draft Article 19 of the Constitution.

It was debated extensively before being dropped from the Constitution. But it, however, continued to remain in the Indian Penal Code.

"Then Supreme Court in Kedarnath case ultimately said if we can read a particular provision in a particular way so long as disaffection was coupled with call for violence, only then it would be sedition," the judge said.

Justice Nariman also explained how UAPA, came into the statute book after India's wars with Pakistan and China. "We had China and Pakistan wars. Thereafter, we introduced the draconian legislation, Unlawful Activities (Prevention) Act. UAPA is a draconian Act as it has no anticipatory bail and has minimum 5 years imprisonment. This Act is not under scanner yet. This too has to be looked into along with the sedition law," he said.

Interestingly, Justice Nariman also said how RSS backed Organiser magazine had to undergo pre-censorship in 1950 by the Nehru administration for speaking against the government. Sedition law and UAPA has a chilling effect on journalists, said Justice Nariman urging the top court to examine and strike down the two laws.

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Published on: Sunday, October 10, 2021, 11:15 PM IST
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