Vinod Dua v. Union of India - What is Sedition?

 

Introduction

 

Today we will discuss another judicial pronouncement by the Supreme Court of India, namely, Vinod Dua v. Union of India, Writ Petition (Criminal) No. 154 of 2020, wherein criminal proceedings against a Journalist, under Sections 124A (Sedition), 268 (Public Nuisance), 501 (Printing or engraving matter known to be defamatory), 505 (Statements conducing to public mischief) of the Indian Penal Code, 1860 (in short, “IPC”), was quashed.

 

Facts in Brief

 

A bare perusal of the relevant excerpts of the Complaint based on which the FIR was registered would be sufficient to explain the background of the case. The same is as follows: -

 

“The Vinod Dua Show on YouTube, has made unfounded and bizarre allegations (details of particular moments are provided below) by stating following facts at 5 minutes and 9 seconds of the video, he has stated that Narendra Modi has used deaths and terror attacks to garner votes. At 5 minutes and 45 seconds of the video, he claims that the government does not have enough testing facilities and has made false statements about the availability of the Personal Protective Kits (PPE) and has stated that there is no sufficient information on those. Further, he also went on to state that ventilators and sanitizer exports were stopped only on 24^th March 2020…..Unless strict action is taken, it will result in unrest in public and go against public tranquillity. Hence, you are requested to take strict appropriate legal action against Mr. Vinod Dua and punish him accordingly.”

 

I think that the contents are self-explanatory. Mr. Vinod Dua made certain comments in relation to Mr. Narendra Modi and the Government. Those comments were considered to have potential to create “unrest in public” and “against public tranquillity” by the Complainant and an FIR was registered. Mr. Vinod Dua approached the Court for quashing of this FIR against him.

 

Important Observations of the Court with respect to S. 268, 501 and 505 of IPC

 

1. With respect to Section 268 (Public Nuisance) of IPC, it was held by the Court that Section 268 merely provides for the definition of “Public Nuisance” and is not a penal provision in itself and further, no case has been made out involving element of Public Nuisance.

 

2. With respect to Section 501 (Printing or engraving matter known to be defamatory) of IPC, it was held by the Court that: -

 

a. Cognizance with respect to Chapter XXI of the IPC wherein S. 501 lies can only be taken by a Court upon a Complaint made by the person aggrieved and even otherwise, there is nothing defamatory in the statements made by Mr. Vinod Dua.

b. The Court went on to hold that the statements of Mr. Vinod Dua would be covered by the 2^nd and 3^rd exceptions to S. 499 of IPC. The 2^nd exception provides that expressing opinion about public conduct of public servants is not defamation. The 3^rd exception provides that it is not defamation to express any opinion with respect to conduct of any person touching any public opinion.

 

3. The case of Kedar Nath Singh v. State of Bihar, (1962) Supp. 2 SCR 769, was cited by the Court to explain that every citizen has a right to criticize the steps taken by the Government and its functionaries, as long as such person does not incite people to violence against the Government or with an intention to create public disorder. The words or expressions used must have a pernicious tendency or intention of creating public disorder to attract Section 505 of IPC. Hence, according to the Court, ingredients of Section 505 were not made out in the present case.

 

Observations of the Court relating Section 124A (Sedition)

 

Before adverting any further, let us peruse S.124A of IPC: -

 

“Whoever by words, either spoken or written, or by signs, or by visible representation, 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 imprisonment which may extend to three years, 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.”

 

The Court cited various case-laws on S. 124 such as Kedar Nath Singh (supra) wherein it was observed that: -

 

“The time is long past when the mere criticism of Governments was sufficient to constitute sedition, for it is recognized that the right to utter honest and reasonable criticism is a source of strength to a community rather than a weakness….”

 

“Sedition……embraces all those practices, whether by word, deed or writing, which are calculated to disturb the tranquillity of the State and lead ignorant persons to subvert the Government…... the very tendency of sedition is to incite the people to insurrection and rebellion……”

 

“The provisions of the Sections read as a whole, along with the explanations, make it reasonably clear that the sections aim 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.”

 

“Comments, however strongly worded, expressing disapprobation of actions of the Government, without exciting those feelings which generate the inclination to cause public disorder by acts of violence, would not be penal.”

 

The Court also cited various other cases that explained the importance of Free Speech and Article 19 of the Constitution of India. Thereafter the Court itself pointed out that considering the size of the population of India, the testing facilities were not adequate and disruption of supply chains due to blockage of roads was real. The Court also highlighted the problem of migrant workers and shortage of food at the time when Lockdown was imposed all over India. According to the Court, the statements made in this regard by Mr. Vinod Dua “can neither be taken to be an attempt to incite migrant workers to start moving towards their hometowns or villages nor can it be taken to be an incitement for causing any food riots.”

 

Hence, it was observed by the Court that going by the allegations in the FIR and other attending circumstances, no offence is made out under S. 124A of IPC and “any prosecution in respect thereof would be violative of the rights of the petitioner guaranteed under Article 19(1)(a) of the Constitution.”

 

Held by the Court

 

Upon cumulative consideration of the above, the Court quashed the FIR against Mr. Vinod Dua and any proceedings arising therefrom. Another prayer was made in this case that no FIR be registered against a person belonging to media with at least 10 years of standing unless cleared by a Committee of Experts. Such prayer was declined by the Court as it was totally outside the purview of statutory framework and any direction with respect to the same would amount to encroaching upon the domain of the Legislature.

 

Concluding Remarks

 

Time and again, matters are coming up wherein S.124A (Sedition) of IPC is involved. S. 124A of IPC is a valid piece of law and must be treated as such by the Prosecution Agencies. Like any other provision of IPC, in S.124A too, it is required to be shown that its ingredients are being made out. Mere allegations are not enough and in order to carry out a Trial, it is required that the charges are prima facie made out.

 

The present case seems like one where the Prosecution Agencies did not apply much mind. Section 268 (Public Nuisance) of IPC was invoked against Mr. Vinod Dua that merely provides for definition and is not a penal cause. This is clearly a lacuna in the Prosecution. In the same way, Sections 501 and 505 of IPC were invoked without any application of mind. Before registering any FIR, the Prosecution Agencies are required to carry out due diligence with respect to making out the ingredients of the offence. It seems that in the present case, such exercise was not carried out properly or this situation would not have arisen.

 

Simply expressing opinions that are critical of the government cannot mean that a citizen is attempting to incite violence. Just the way a citizen congratulates the government for the good work done, in the same way, a citizen has the right to criticize the government when he is not satisfied. After all, the citizens are the real beneficiaries of the Constitution of India. The Government, the Legislature and the Judiciary, are required to function in tandem to secure the rights of the citizens of this country. Such rights include the right to criticize as well. Rather than curtailing the same, it would be much better if the State protects such rights and allows its citizens to criticize itself as much as possible. If everything done by the State would be considered to be rosy, then where would be the scope for improvement. The State would function according to its own whims and fancies and without communication with the citizens, it would never know whether its schemes and plans are having any real ground effect or not.

 

The second prayer of Mr. Vinod Dua in this case was interesting. He tried to draw parallels with doctors that like doctors, journalists too need protection in respect of lodging of FIRs against them. However, in case of the doctors, the Court rightly pointed out that they stand at a different footing altogether and there is a full-fledged statutory framework in their favour. Though Journalists are specialists, but their nature of work is quite different from doctors.