A Missed Opportunity: Vinod Dua’s Sedition Case

What did the Court hold?
The Supreme Court quashed the sedition FIR filed against journalist Vinod Dua for a video in which he remarked against the Prime Minister on his handling of the COVID crisis. In doing so, the Court reiterated the guidelines laid down in Kedar Nath Singh v State of Bihar (1962), that a sedition charge is attracted only when incitement to violence, or the tendency or intention to create public disorder can be proven.

BJP member Ajay Shyam had filed a complaint of sedition for a YouTube video uploaded by Mr. Dua on COVID mismanagement. Mr. Dua had moved the Court under writ jurisdiction with two prayers – first, the quashing of FIR and second, a direction that every sedition FIR registered against a journalist of at least 10 years standing should be cleared by a special committee.

A division bench of UU Lalit and Vineet Saran JJ held that remarks made by Mr. Dua constituted criticism of the governmental policy and could not be termed seditious. However, the bench rejected the plea of a committee for screening FIRs against journalists saying it would amount to interference in the legislative domain.

Despite holding the remarks made by Mr. Dua to be outside the scope of sedition, the Court discussed the Kedar Nath guidelines in detail. In the 1962 case, the Supreme Court upheld the constitutional validity of the sedition provision though it issued guidelines to restrict its scope. The Court had held that unless disaffection against the government is accompanied by incitement to violence, or intention to cause disorder, the offence of sedition is not committed.

Some Misses

The judgment ended by reiterating the present law: that every journalist will be entitled to protection as per the scope and ambit of section 124 A IPC, 1860 and the guidelines laid down in Kedar Nath Singh.

However, two important aspects that could have been raised were not covered by the judgment. First,  the non addressal of the contradiction in the Kedar Nath test will likely continue the spate of arbitrary arrests under sedition charges. Second, the routine let-off of the State agencies despite glaring infringements of liberty and the reputation of people like Mr. Dua.

The plea for a screening process for journalists was rejected on valid reasons. However, the Constitutional Court can check such callous exercise of authority. This judgment did not register the vindictive nature of targeting a journalist, a known government critic.

When hearing the matter on the writ side of the Court, it need not be constrained in its analysis and foresight. Knowing the wide powers the Court has to set a strong precedent for preventing future misuse of sedition law, there are two potential questions the Court can address.

Contradiction in Sedition Test
Reiterating the principles laid in Kedar Nath Singh, the Court stated unambiguously that a sedition charge is attracted only when incitement to violence or the tendency or intention to cause public disorder can be proven against the Government established by law.

However, a contradiction exists in the Kedar Nath test that has escaped judicial and academic scrutiny.  It retains the ‘bad tendency’ as well as the ‘clear and present danger’ test to determine the seditious nature of speech. First relied upon in the US Supreme Court case Abrams v United States (1919), the bad tendency test allows restriction of speech if violence is a remote outcome. Clear and present danger, expounded in Schenck v United States (1919) allows restriction of speech on grounds of public order only if there is real (not remote) danger of incitement to violence or actual violence. A clear, proximate and direct link between speech and incitement to violence is needed for speech to be restricted under the clear and present danger test.

Kedar Nath makes both ‘incitement to offense’ and ‘intent or tendency to cause disorder’ against the government seditious. This is strange as the same act could be interpreted differently under the two tests. Take, for example,  a student who is addressing a small gathering calls for cutting off the North East from the rest of India through a highway blockade. This would be seditious on applying the bad tendency test as the student had the intention to cause public disorder. If the test of clear and present danger is applied, one could argue that a case for sedition is not made. A mere call for blockade by a student in a small gathering does not necessarily create a public disorder situation or a threat to security of India.

Such uncertainty in the test for sedition will have a chilling effect on freedom of speech. By prosecuting one for even a remote possibility of violence gives huge discretion to the executive to target dissenters at will under sedition law.

Sample the way Kedar Nath principles were applied to opposite ends by the Supreme Court. In the same case, Kedar Nath, an ordinary party worker from Forward Communist Party was held guilty of sedition for mere utterance of the word ‘Revolution’ while criticising the Congress government as ‘…the party of landlords and zamindars’. Contrast this with the 1995 case of Balwant Singh v State of Punjab where the sloganeering – ‘Khalistan Zindabad’ in a public area by two government servants, without any other overt action was found to not constitute any threat to the Government of India and was held to be non-seditious speech.

The former took the mere utterance of ‘Revolution’ to be seditious while the latter weighed in the effect (or non-effect) of provocative sloganeering to determine sedition.

The case against Mr. Dua was simple as his remarks even under the most stretched interpretation would fall outside sedition. The path taken by the Court steers clear of addressing the slightly grey scenarios like alleged anti-national sloganeering or name calling of the Prime Minister. It is bound to raise similar questions of arbitrary arrests in coming months.

Public Law Remedy of Compensation
The plea to constitute a committee for clearing sedition FIRs against journalists of at least 10 years standing was validy rejected. Apart from the stated reason of encroachment in the legislative domain, the 10 years cut-off for protecting journalists seemed arbitrary. However, the Court has the option to grant the compensatory public law remedy as a way to deter the misuse of penal provisions. The favourable factual matrix in this case coupled with wide powers under writ jurisdiction could have been used to entrench the compensatory remedy in cases of malicious or motivated targeting of individuals.

The quashing of the sedition FIR signals that there has been a non-application of mind in targeting individuals by setting the criminal law in motion. The Government’s increasing use of anti-terror laws like UAPA, 1967, MCOCA, 1999, and preventive detention laws like NSA, 1980 have an intimidatory effect, and could harass and silence its critics. In such an atmosphere, the role of the courts shouldn’t be just limited to securing the release of individuals but to impose accountability or costs on the State for the violation of such liberty. This requires the Court to cement its public law remedy of compensation for indiscriminate and glaring violation of life, liberty and reputation of citizens.

In a 2018 case of Nambi Narayanan v Siby Mathews, an ISRO scientist Nambi, wrongly imprisoned and put in custody on a false espionage charge was awarded ₹50 lakhs as compensation by the Supreme Court. Observing that his liberty was jeopardised and reputation sullied by false charges, the Court justified an award of compensation as a public law remedy.

The circumstances for compensation as a public law remedy was detailed in the 2006 case of Sube Singh v State of Haryana. The Court clarified that an award of compensation for fundamental right violations does not exhaust the opportunity to claim compensation in tort law or criminal law under section 357 CrPC. It further observed that compensation could be sought under writ jurisdiction of the Court if the infringement of rights had been patent and ex-facie glaring.

The Court should more frequently apply the compensatory jurisprudence in present times of increasing misuse of penal laws to harass the dissenters. Similarly, the instant case was a fit one for the award of compensation for reputational loss suffered by Mr. Dua owing to callous or motivated filing of a sedition FIR. Even a forewarning to impose costs on State authorities would have led to some introspection and course correction.

Will the Vinod Dua judgment become an enduring legal precedent?

Satya is interested in public law and holds an LLM in Public Law from Melbourne Law School.