Mere criticism is not seditious: Bombay High Court on Aseem Trivedi's cartoons

Upholding a petition challenging the charge of sedition against the cartoonist, a bench comprising Chief Justice Mohit Shah and Justice N M Jamdar of the Bombay High Court reiterated that the charge of sedition under Sec 124 A of the Indian Penal Code ‘aims at rendering penal only such activities as would be intended, or have a tendency, to create disorder or disturbance of public peace by resort to violence’.

Besides, the judgement also accepted a set of guidelines, as pre-conditions to police for invoking sedition charges only if an act was an incitement to violence or disturbed pubic order. Also, a legal opinion in writing, along with reasons, must be submitted before any charge of sedition was sought to be applied in any case. 

Sedition, a colonial-era provision, has been increasingly used to suppress dissent and attracts provisions upto life imprisonment. The doctor and civil liberties activist Dr Binayak Sen, was convicted of sedition and punished with life imprisonment by a sessions court in Chhattisgarh. He challenged the order but was denied bail by the Chhattisgarh High Court in 2010 but was finally granted bail by the Supreme Court a year later, after the court held that sedition did not apply in his case.

Numerous campaigns to strike down this draconian provision from the statute books have come to naught. Those charged included Mahatma Gandhi for articles that appeared in Young India in1922 and, in a now famous speech, Gandhi said: Section 124 A, under which I am happily charged, is perhaps the prince among the political sections of the Indian Penal Code designed to suppress the liberty of the citizen.

Incidentally, sedition is no longer in the statue books of British penal law, having been abolished in 2009.

Aseem Trivedi was charged with sedition under the Indian Penal Code as well as with violating the Prevention of Insult to National Honour Act, 1971 and Section 66(A) of Information Technology Act, for displaying a number of cartoons at a public meeting organised by the India Against Corruption on November 27, 2011, in Mumbai. Following an FIR lodged against him, he was arrested on September 8, 2012, and produced before a Metropolitan Magistrate. However, Trivedi refused to accept bail until the sedition charge was dropped.

The arrest of the cartoonist sparked protests and a nation-wide debate on whether colonial-era laws like sedition had any place in Independent India. A writ petition filed by Advocate Sanskar Marathe in the Bombay High Court contended 'that publication and/or posting such political cartoons on website can by no stretch of imagination attract a serious charge of sedition and that Assem Trivedi was languishing in jail on account of the charge of sedition being included in the FIR.

Subsequently, after a legal opinion of the State Advocate General, police decided to drop Sec 124A but retain the other two laws - the Prevention of Insult to National Honour Act, 1971 and Section 66(A) of Information Technology Act in three of the seven cartoons displayed. The petitioner, who appeared in person, then sought a legal opinion from the court that police do not arbitrarily invoke the serious charge of sedition in future, in an arbitrary and irresponsible manner.

While the petitioner appeared in person, Trivedi was impleaded in the case as a third respondent and was represented by Advocates Mihir Desai with Vijay Hiremath and Advocte General Sunil Manohar and S K Shinde, government pleader, represented the state government.

In the judgement (reserved earlier and delivered on ), the judge said that the cartoons displayed at a meeting held on 27 November 2011 in Mumbai, as a part of movement launched by Anna Hazare against corruption in India, were full of anger and disgust against corruption prevailing in the political system and had no element of wit or humour or sarcasm.

The judgement added: ‘But for that reason, the freedom of speech and expression available to the third respondent to express his indignation against corruption in the political system in strong terms or visual representations could not have been encroached upon when there is no allegation of incitement to violence or the tendency or the intention to create public disorder'.

'A citizen has a right to say or write whatever he likes about the Government, or its measures, by way of criticism or comments, so long as he does not incite people to violence against the Government established by law or with the intention of creating public disorder', the judgement said, adding that the state Home Department must issue guidelines to the police, in the form of pre-conditions to the invoking of Sec 124 A only if words, signs or representations that bring the Government (Central or State) into hatred or contempt or must cause or attempt to cause disaffection, enmity or disloyalty to the Government ‘must also be an incitement to violence or must be intended or tend to create public disorder or a reasonable apprehension of public disorder.’

Other pre-conditions included comments expressing disapproval or criticism of the Government with a view to obtaining a change of government by lawful means without any of the above are not seditious under Section 124A and obscenity or vulgarity by itself should not be a factor for deciding whether a case falls within the purview of Section 124A of IPC, for they are covered under other sections of law. Besides, for invoking sedition, a legal opinion in writing, which gives reasons addressing these pre-conditions, must be obtained from Law Officer of the District followed within two weeby a legal opinion in writing from Public Prosecutor of the State.

Interestingly, stringent guidelines were laid down after a nation-wide outcry over the provisions of Sec 66 (A) of the Information Technology Act following the arrest of to students in Palghar, Maharashtra. However, till these draconian provisions continue to remain in the law, the moot point is whether these guidelines will be followed, or flouted, by the law enforcers.