That every court of law is bound by the 1962 judgment of the five-member Constitutional Bench of the Supreme Court — that a person could be prosecuted for sedition under Section 124A of the IPC if his or her acts caused incitement to violence or tendency to create public disorder or cause disturbance of public peace — is common knowledge. But it has been and continues to be observed in the breach repeatedly. Therefore the NGO Common Cause and others had moved the Supreme Court through PIL seeking issuance of directions to make approval from the Director-General of Police or Commissioner of Police a must before lodging an FIR for sedition with a view to preventing arbitrary arrest of people. A Bench of Justice Dipak Misra and Justice Uday U Lalit on Monday ruled that making strong criticism of the government was not even defamatory, let alone seditious. It directed all authorities including police and trial judges to follow the Kedar Nath vs State of Bihar Constitution Bench ruling of 1962 that only incitement to violence and public disorder could form the basis of a sedition charge. Every court is bound by the Kedar Nath judgment and whenever a case of sedition comes up, the magistrate must apply his mind to that judgment, the Bench observed. On the specific plea of issuing a direction to police chiefs, the Bench said, “You have to file separate plea highlighting if any misuse of sedition law is there. In criminal jurisprudence, allegations and cognisance have to be case-specific, otherwise it will go haywire. There cannot be any generalisation.” The Bench offered to send copies of its judgment to all Chief Secretaries of States and Directors-General of Police.

In spite of the Constutition Bench judgment narrowing the scope of sedition, experience of the last 54 years shows that it has not deterred governments at the Centre or in the States from utilising this colonial era law routinely to harass and incarcerate critics. Acting on a complaint by the ABVP, student wing of the BJP, the Bangalore police last week slapped sedition charges against Amnesty International India for an event it had organised on allegations of human rights violations and denial of justice in Jammu and Kashmir. Kanhaiya Kumar, president of JNU students union, SAR Geelani, Delhi University professor, Arundhati Roy, well known writer, cartoonist Aseem Trivedi, medical practitioner and human rights activist Binayak Sen, many a working journalist and hundreds of protestors against the Koodankulam nuclear power plant in Tamil Nadu are some of the recent examples of non-application of the Kedar Nath judgment by police and magistrates in recent times. The Supreme Court in its wisdom upheld the constitutional validity of 124 A in the Kedar Nath judgment and the present Bench relied on it to deny relief in the Common Cause PIL. Shorn of shibboleth, status quo will continue.