An aged law after an ageing judge

The case against Justice Markandey Katju highlights the need to urgently review and update provisions of the Indian Penal Code, argues Apar Gupta  

  • Published 5.10.16
MARK MY WORDS: Invoking criminal proceedings against a provocative sentence is often viewed as abuse of law  

The first few years at the bar bring great thrill but there are points when things sink to utter boredom. Many warm Delhi afternoons in the halls of the Supreme Court dulled as the morning coffee wore off. Between the canteen and the library, young lawyers broke their slumber by entering the court of the then Hon’ble Supreme Court Judge Markandey Katju. To term it crudely, his court was “entertaining”. 

Media reports around that time would confirm that sitting from a high judicial seat, remarks were passed to muffled chuckles and bewilderment. His obiter was not limited to the law — it was controversial and very often wholly extraneous to the case at hand. It provided the perfect antidote to an afternoon nap.

After retirement from the court and the Press Council of India, the former judge now holds court on social media. When a habit to voice unrestrained, contrarian opinion met a large, diverse audience, it was a certainty that criminal laws on speech would be invoked in time. His offer to Pakistan to bundle away the state of Bihar with Kashmir added the necessary spark to the powder keg, resulting in legal proceedings for sedition and criminal defamation. 

The social condemnation of such a public statement has flowed in quick and fast. However, many have drawn a clear line stating that invoking criminal proceedings is disproportionate and evidences another instance of the abuse of law.
Katju’s case does not stand in isolation and the cause of it can be traced to the provisions of the Indian Penal Code. Many provisions in the IPC as first enacted in 1860 maintain their primeval form and are today used to stifle speech. Its provisions criminalise the public utterance of cuss words, defamation, hate speech, sedition, obscenity and a few other speech offences relating to public order. Within its broad expanse, it serves a statutory buffet to the hunger of any and every offended person. 

Some of these offences like sedition are archaic in principle and intent. In its original form, it was meant to prevent the mere absence of affection against the government. Its colonial roots are evident in trials of freedom fighters such as Bal Gangadhar Tilak in which a nervous, foreign power seeks to maintain dominion. Clearly such a law has no place in modern India as she matures into a liberal, constitutional democracy.

It is often hoped that our courts will prove to be the firmest bastions of free speech. There is some evidence for such sentiment. The Supreme Court has often stepped in by either striking down laws or limiting their scope. Both these methods are ineffective, inadequate bandages against the larger injury to free speech. 

Let us first look at instances when the Supreme Court strikes down laws holding them to be unconstitutional. Such outcomes are dependent on complex exercises of constitutional construction and its results are inconsistent. 
In the past year itself the Supreme Court has rejected challenges to criminal defamation and sedition. While criticism for its reasoning in these cases may be valid, it should be balanced by recognising the institutional limits of a constitutional court — where it determines legality rather than desirability.

Working within such boundaries, courts have in the past limited the application of many vague speech restrictive laws including sedition. 

By a series of judgments the Supreme Court has increased the legal threshold of the offence to place even the strongest criticisms outside its ambit. It has, for instance, held that loud slogans of “Khalistan Zindabad, Raj Karega Khalsa” (Long live Khalistan, Khalsa will rule) in a crowded public square in Chandigarh does not constitute sedition. It is relevant that the day to which the incident dates as the day of the assassination of Indira Gandhi by her bodyguards.

For a variety of reasons such precedent has only reformed the law in theory as can be seen from the prosecution of Justice Katju. Police departments that register FIRs, government lawyers who provide legal opinion and even the lower judiciary that issues summons often fail to notice such judgments. They only look at the statute which has remained vague. 

Even laws that serve a continuing social need such as hate speech end up causing indiscriminate prosecutions because they are poorly phrased. Individual prosecutions are today selectively cited under different laws of the IPC to highlight state abuse and charge others with hypocrisy and bias. Paradoxically criminal speech laws that are meant to foster social order end up causing bitter division.

There are no clear solutions to this problem at present except the need for court challenges to be supplemented by efforts at legislative review. Many may view a parliamentary route as a long shot. Historical trends may even create doubt as to the success of legislative proposals to advance civil rights in India. 

However, this can no longer be avoided. Maybe we can even hazard some hope. In February this year, President Pranab Mukherjee made a comprehensive speech on the penal code and called for it to be institutionally examined. There have been some public statements by the Union government indicating that it is studying proposals to review it. Some legislators have even filed private member’s bills seeking deletion and amendment of some of its provisions. 

However, the most persuasive reason for legal reform is a growing constituency of literate voters who use the Internet and care about free speech. Despite a wide gulf in their social values and practices, there exists a large sense of distrust of the existing criminal law on speech. There is a large, growing number of people who recognise that a provocative statement can be met with amusement, criticism, debate or even just a yawn.

Gupta practises law in Delhi