No democracy can exist without freedom of speech - Statement by former state officials | june 12 2022

Statement by Constitutional Conduct Group

We are a group of former civil servants of the All India and Central Services who have worked with the Central and State Governments in the course of our careers. Our group has no affiliation with any political party, and we, as its members, believe in impartiality, neutrality and commitment to the Constitution of India.

On May 11, 2022, a chorus of appreciation greeted the Supreme Court’s interim orders on a batch of cases which had challenged the constitutionality of the sedition provision contained in Section 124A of the Indian Penal Code (IPC). The Supreme Court’s order was an interim one, viz. to keep in abeyance this section and all related pending trials, appeals and proceedings until further orders. While we would, like others, wish to applaud this decision of the Supreme Court, we feel that, at present, it deserves only a muted cheer.

The Supreme Court’s order, inasmuch as it results in immediate relief against arrest, investigation or under-trial detention under Section 124A, is certainly laudable (provided it does not adversely affect the persons already charged). Not so laudable is the impression it gives that the suspension is a response to the union government’s statement that it is reviewing Section 124A and considering its revision and reform. Review and revision by the executive cannot be a substitute for judicial determination of the constitutional limits of the power of the executive to restrict freedom of speech and expression. It is important for the Supreme Court not to get sidetracked by the executive and instead to answer the fundamental issue raised by the petitioners, viz. is Section 124A of the IPC constitutionally valid?

Section 124A of the IPC is certainly a strange provision to have in a democracy. It criminalizes the feelings of dislike, contempt and disaffection towards “the government established by law in India”, even where such feelings are not linked to any violent, illegal or criminal act. Disaffection and contempt for the government of the day are feelings through which democratic republics are born. Such feelings are considered criminal only in autocracies. Where the government of the day can be, and is, changed through the electoral process, it can surely not be a criminal offence for any citizen to merely harbour and express feelings of disaffection, etc. towards the government.

In the words of Mahatma Gandhi: “Affection cannot be manufactured or regulated by law. If one has no affection for a person or system, one should be free to give the fullest expression to his disaffection, so long as he does not contemplate, promote, or incite to violence.” Yet this disaffection is what Section 124A treats as criminal. Sixty years ago, in Kedar Nath Singh vs. State of Bihar, a five-judge bench of the Supreme Court upheld Section 124A IPC, but qualified their decision as follows:

. . . we propose to limit [the] operation [of Section 124A] only to such activities …. involving incitement to violence or intention or tendency to create public disorder or cause disturbance of public peace.

This limiting of Section 124A to activities which involve incitement to violence or public disorder has, however, been by and large ignored in practice by the police and by the courts. As against the thousands of cases charged by the police under Section 124A and similar draconian provisions/laws, the low rate of conviction casts serious doubt about the genuineness of claims made during investigation and prosecution. It shows that the real purpose of such laws is to provide autocratic rulers a powerful weapon to suppress their rivals and control public opinion.

However, whether or not Section 124A is finally deleted or altered, it will make little difference to the common citizen insofar as freedom of speech and expression as spelt out in Article 19(1) of the Constitution is concerned. This is because, apart from Section 124A of the IPC, there are several other provisions in the IPC and other Acts which shackle this fundamental right of citizens and leave them open to arbitrary arrest and prosecution by the government. The only way that the citizen’s right to freedom of speech and expression can be protected is if the Supreme Court examines Article 19 under the “basic structure of the Constitution” principle with reference to all existing laws and provisions that put curbs on this freedom.

The armoury of arbitrary weapons used to suppress dissent and opposition and control the free formation of public opinion has expanded over the years to include a number of offences similar to those under Section 124A. Prominent amongst these offences are Section 153A of the IPC (promoting enmity between different groups on ground of religion, race, place of birth, etc.), Section 153B (imputations, assertions prejudicial to national integration), Section 505 (statements conducive to public mischief) and Section 505(2) (statements creating or promoting enmity, hatred or ill-will between classes). These provisions are today widely and routinely misused by the police and their political masters with the same objective as in the case of Section 124A.

Over the years, slowly and surreptitiously, the substance of the offence of sedition has been “snuck” into the Unlawful Activities (Prevention) Act, 1967 (UAPA), defined more elaborately, and with more draconian consequences, than in Section 124A. Significantly, no political party is blameless in this regard and governments of all political complexions have been trampling upon human rights and the freedom of expression

Section 13(1) of the UAPA states that “Whoever: (a) takes part in or commits, or (b) advocates, abets, advises or incites the commission of, any unlawful activity….” shall be punishable with imprisonment for a term which may extend to seven years. “Unlawful activity” as defined under Section 2(1)(o)(iii) of the UAPA is very similar to the definition of sedition contained in Sec 124A IPC.

If Section 124A of the IPC is held by the court to be unconstitutional, because speech and expression that merely create disaffection are protected (and not prohibited) under Article 19(1), Section 2(1)(o)(iii) of the UAPA will also need to be amended to delete elements imported from Section 124A, viz. the criminalization of speech and expression which is not an integral part of any violent, illegal, criminal act. Deletion of one, while retaining the other, would be irrational.

Deleting Section 124A from the IPC, while retaining criminalization of “unlawful activities” under the UAPA, will give substantial political advantage to the union government and the party in power at the national level. Currently, state governments are free to prosecute persons for offences under the IPC, including for sedition under Section 124A. No permission of the union government is required. States ruled by political parties other than that at the national level sometimes use Section 124A to prosecute supporters of the national ruling party for sedition (as recently happened in Maharashtra). The ruling party at the union level is powerless to prevent such prosecution. The UAPA, on the other hand, vests no powers with the state governments. It provides that no court shall take cognizance of any offence of unlawful activity without the previous sanction of the Central Government. Deleting Section 124A of the IPC will mean that the power to prosecute those who promote unfavourable opinions against the government will rest solely with the union government. This provides a major incentive for the union government to delete Section 124A under the pretext of protecting human rights while in reality strengthening its ability to suppress liberty in an even more draconian manner.

Given that no democracy can exist without freedom of speech and expression, including the right to promote opinions unfavourable to the government, the Supreme Court should use this opportunity to declare an overarching ‘basic structure principle’ of the Constitution protecting freedom of speech and expression including the reasonable restrictions mentioned in Article 19(2), so that government interference with individual freedom of speech and expression can be prevented. In doing so, the Court should hew to the principle that any permissible restriction on speech and expression must be only against speech or expression that is likely to result in imminent violence or restricts the freedom of speech and expression of others.

SATYAMEVA JAYATE

Constitutional Conduct Group (108 signatories, as below)

1. Anita Agnihotri IAS (Retd.) Former Secretary, Department of Social Justice Empowerment, GoI
2. S.P. Ambrose IAS (Retd.) Former Additional Secretary, Ministry of Shipping & Transport, GoI
3. Anand Arni RAS (Retd.) Former Special Secretary, Cabinet Secretariat, GoI
4. J.L. Bajaj IAS (Retd.) Former Chairman, Administrative Reforms and Decentralisation Commission, Govt. of Uttar Pradesh
5. G. Balachandhran IAS (Retd.) Former Additional Chief Secretary, Govt. of West Bengal
6. Vappala Balachandran IPS (Retd.) Former Special Secretary, Cabinet Secretariat, GoI
7. Gopalan Balagopal IAS (Retd.) Former Special Secretary, Govt. of West Bengal
8. Chandrashekar Balakrishnan IAS (Retd.) Former Secretary, Coal, GoI
9. Sushant Baliga Engineering Services (Retd.) Former Additional Director General, Central PWD, GoI
10. Rana Banerji RAS (Retd.) Former Special Secretary, Cabinet Secretariat, GoI
11. T.K. Banerji IAS (Retd.) Former Member, Union Public Service Commission
12. Sharad Behar IAS (Retd.) Former Chief Secretary, Govt. of Madhya Pradesh
13. Aurobindo Behera IAS (Retd.) Former Member, Board of Revenue, Govt. of Odisha
14. Madhu Bhaduri IFS (Retd.) Former Ambassador to Portugal
15. Pradip Bhattacharya IAS (Retd.) Former Additional Chief Secretary, Development & Planning and Administrative Training Institute, Govt. of West Bengal
16. Meeran C Borwankar IPS (Retd.) Former DGP, Bureau of Police Research and Development, GoI

17. Ravi Budhiraja IAS (Retd.) Former Chairman, Jawaharlal Nehru Port Trust, GoI
18. Sundar Burra IAS (Retd.) Former Secretary, Govt. of Maharashtra
19. R. Chandramohan IAS (Retd.) Former Principal Secretary, Transport and Urban Development, Govt. of NCT of Delhi
20. K.M. Chandrasekhar IAS (Retd.) Former Cabinet Secretary, GoI
21. Rachel Chatterjee IAS (Retd.) Former Special Chief Secretary, Agriculture, Govt. of Andhra Pradesh
22. Gurjit Singh Cheema IAS (Retd.) Former Financial Commissioner (Revenue), Govt. of Punjab
23. F.T.R. Colaso IPS (Retd.) Former Director General of Police, Govt. of Karnataka & former Director General of Police, Govt. of Jammu & Kashmir
24. Anna Dani IAS (Retd.) Former Additional Chief Secretary, Govt. of Maharashtra
25. Surjit K. Das IAS (Retd.) Former Chief Secretary, Govt. of Uttarakhand
26. Vibha Puri Das IAS (Retd.) Former Secretary, Ministry of Tribal Affairs, GoI
27. P.R. Dasgupta IAS (Retd.) Former Chairman, Food Corporation of India, GoI
28. Pradeep K. Deb IAS (Retd.) Former Secretary, Deptt. Of Sports, GoI
29. Nitin Desai Former Chief Economic Adviser, Ministry of Finance, GoI
30. M.G. Devasahayam IAS (Retd.) Former Secretary, Govt. of Haryana
31. A.S. Dulat IPS (Retd.) Former OSD on Kashmir, Prime Minister’s Office, GoI
32. K.P. Fabian IFS (Retd.) Former Ambassador to Italy
33. Arif Ghauri IRS (Retd.) Former Governance Adviser, DFID, Govt. of the United Kingdom (on deputation)
34. Gourisankar Ghosh IAS (Retd.) Former Mission Director, National Drinking Water Mission, GoI
35. Suresh K. Goel IFS (Retd.) Former Director General, Indian Council of Cultural Relations, GoI
36. S.K. Guha IAS (Retd.) Former Joint Secretary, Department of Women & Child Development, GoI
37. H.S. Gujral IFoS (Retd.) Former Principal Chief Conservator of Forests, Govt. of Punjab
38. Meena Gupta IAS (Retd.) Former Secretary, Ministry of Environment & Forests, GoI
39. Ravi Vira Gupta IAS (Retd.) Former Deputy Governor, Reserve Bank of India
40. Wajahat Habibullah IAS (Retd.) Former Secretary, GoI and former Chief Information Commissioner
41. Deepa Hari IRS (Resigned)
42. Sajjad Hassan IAS (Retd.) Former Commissioner (Planning), Govt. of Manipur
43. Siraj Hussain IAS (Retd.) Former Secretary, Department of Agriculture, GoI
44. Kamal Jaswal IAS (Retd.) Former Secretary, Department of Information Technology, GoI
45. Najeeb Jung IAS (Retd.) Former Lieutenant Governor, Delhi
46. Vinod C. Khanna IFS (Retd.) Former Additional Secretary, MEA, GoI
47. Brijesh Kumar IAS (Retd.) Former Secretary, Department of Information Technology, GoI
48. Ish Kumar IPS (Retd.) Former DGP (Vigilance & Enforcement), Govt. of Telangana and former Special Rapporteur, National Human Rights Commission
49. Sudhir Kumar IAS (Retd.) Former Member, Central Administrative Tribunal
50. Subodh Lal IPoS (Resigned) Former Deputy Director General, Ministry of Communications, GoI
51. B.B. Mahajan IAS (Retd.) Former Secretary, Deptt. of Food, GoI
52. P.M.S. Malik IFS (Retd.) Former Ambassador to Myanmar & Special Secretary, MEA, GoI
53. Harsh Mander IAS (Retd.) Govt. of Madhya Pradesh
54. Amitabh Mathur IPS (Retd.) Former Special Secretary, Cabinet Secretariat, GoI
55. Lalit Mathur IAS (Retd.) Former Director General, National Institute of Rural Development, GoI
56. Aditi Mehta IAS (Retd.) Former Additional Chief Secretary, Govt. of Rajasthan
57. Sonalini Mirchandani IFS (Resigned) GoI
58. Sunil Mitra IAS (Retd.) Former Secretary, Ministry of Finance, GoI
59. Noor Mohammad IAS (Retd.) Former Secretary, National Disaster Management Authority, Govt. of India
60. Avinash Mohananey IPS (Retd.) Former Director General of Police, Govt. of Sikkim
61. Satya Narayan Mohanty IAS (Retd.) Former Secretary General, National Human Rights Commission
62. Deb Mukharji IFS (Retd.) Former High Commissioner to Bangladesh and former Ambassador to Nepal
63. Shiv Shankar Mukherjee IFS (Retd.) Former High Commissioner to the United Kingdom
64. Gautam Mukhopadhaya IFS (Retd.) Former Ambassador to Myanmar
65. Ramesh Narayanaswami IAS (Retd.) Former Chief Secretary, Govt. of NCT of Delhi
66. Surendra Nath IAS (Retd.) Former Member, Finance Commission, Govt. of Madhya Pradesh
67. P.A. Nazareth IFS (Retd.) Former Ambassador to Egypt and Mexico
68. P. Joy Oommen IAS (Retd.) Former Chief Secretary, Govt. of Chhattisgarh
69. Amitabha Pande IAS (Retd.) Former Secretary, Inter-State Council, GoI
70. Maxwell Pereira IPS (Retd.) Former Joint Commissioner of Police, Delhi
71. G.K. Pillai IAS (Retd.) Former Home Secretary, GoI
72. Rajesh Prasad IFS (Retd.) Former Ambassador to the Netherlands
73. R.M. Premkumar IAS (Retd.) Former Chief Secretary, Govt. of Maharashtra
74. Rajdeep Puri IRS (Resigned) Former Joint Commissioner of Income Tax, GoI
75. T.R. Raghunandan IAS (Retd.) Former Joint Secretary, Ministry of Panchayati Raj, GoI
76. N.K. Raghupathy IAS (Retd.) Former Chairman, Staff Selection Commission, GoI
77. V.P. Raja IAS (Retd.) Former Chairman, Maharashtra Electricity Regulatory Commission
78. C. Babu Rajeev IAS (Retd.) Former Secretary, GoI
79. K. Sujatha Rao IAS (Retd.) Former Health Secretary, GoI
80. M.Y. Rao IAS (Retd.)
81. Satwant Reddy IAS (Retd.) Former Secretary, Chemicals and Petrochemicals, GoI
82. Vijaya Latha Reddy IFS (Retd.) Former Deputy National Security Adviser, GoI
83. Julio Ribeiro IPS (Retd.) Former Adviser to Governor of Punjab & former Ambassador to Romania
84. Aruna Roy IAS (Resigned)
85. A.K. Samanta IPS (Retd.) Former Director General of Police (Intelligence), Govt. of West Bengal
86. Deepak Sanan IAS (Retd.) Former Principal Adviser (AR) to Chief Minister, Govt. of Himachal Pradesh
87. G. Sankaran IC&CES (Retd.) Former President, Customs, Excise and Gold (Control) Appellate Tribunal
88. N.C. Saxena IAS (Retd.) Former Secretary, Planning Commission, GoI
89. A. Selvaraj IRS (Retd.) Former Chief Commissioner, Income Tax, Chennai, GoI
90. Ardhendu Sen IAS (Retd.) Former Chief Secretary, Govt. of West Bengal
91. Abhijit Sengupta IAS (Retd.) Former Secretary, Ministry of Culture, GoI
92. Aftab Seth IFS (Retd.) Former Ambassador to Japan
93. Ashok Kumar Sharma IFoS (Retd.) Former MD, State Forest Development Corporation, Govt. of Gujarat
94. Ashok Kumar Sharma IFS (Retd.) Former Ambassador to Finland and Estonia
95. Navrekha Sharma IFS (Retd.) Former Ambassador to Indonesia
96. Raju Sharma IAS (Retd.) Former Member, Board of Revenue, Govt. of Uttar Pradesh
97. Mukteshwar Singh IAS (Retd.) Former Member, Madhya Pradesh Public Service Commission
98. Sujatha Singh IFS (Retd.) Former Foreign Secretary, GoI
99. Tara Ajai Singh IAS (Retd.) Former Additional Chief Secretary, Govt. of Karnataka
100. Tirlochan Singh IAS (Retd.) Former Secretary, National Commission for Minorities, GoI
101. Narendra Sisodia IAS (Retd.) Former Secretary, Ministry of Finance, GoI
102. Parveen Talha IRS (Retd.) Former Member, Union Public Service Commission
103. Anup Thakur IAS (Retd.) Former Member, National Consumer Disputes Redressal Commission
104. P.S.S. Thomas IAS (Retd.) Former Secretary General, National Human Rights Commission
105. Hindal Tyabji IAS (Retd.) Former Chief Secretary rank, Govt. of Jammu & Kashmir
106. Ashok Vajpeyi IAS (Retd.) Former Chairman, Lalit Kala Akademi
107. Ramani Venkatesan IAS (Retd.) Former Director General, YASHADA, Govt. of Maharashtra
108. Rudi Warjri IFS (Retd.) Former Ambassador to Colombia, Ecuador and Costa Rica