Students need not fear, being critical of government by itself not sedition: Ex HC Judge SC Dharmadhikari

MUMBAI: “A penal provision by its very existence does not take away your freedom, doesn’t take away your right to free speech,’’ said former Bombay high court Judge S C Dharmadhikari on Friday, speaking on free speech and offence of sedition under the Indian Penal Code (IPC). “The very heart of democracy is debate, discussion, deliberation and dissent,’’ said the ex-Judge who till less than two weeks was still on the bench.
While noting that freedom of speech does come with reasonable restrictions, the ex-judge said, “students need not fear.Students of law all the more need not fear."
"The right to free speech is not affected by presence of such provisions of law and which make the acts punishable,’’ said Dharmadhikari.
“Section 124A of IPC itself protects everyone who disapproves government measures with a view to obtain their alteration by lawful means and without exciting or attempting to excite feeling of hatred or disaffection or disloyalty against the state,’’ he said. “You may express disapproval of the government…and so long as you protest against something by lawful means you are not committing an offence,’’ he clarified to an audience that largely comprised students at the Indian Merchants Chamber.
“You can be critical of the government, it is not an offence. It is not an offence so long as you are not exciting hatred, disaffection…your freedom speech should not amount to incite of an offence,’’ he said noting, “It is being confused with other offences affecting public tranquility.’’
He was delivering the fifth edition of Principal T K Tope memorial lecture on ‘free speech and sedition’ organized by the social service league of Government Law College. It was topical coming as it did just weeks following a case of sedition being registered in the city against a student filed for slogans she raised during a gathering of the Queer community.
“Any body who says your speech is seditious will have to prove all these ingredients, that either you are bringing or attempting to bring into hatred, the government established by law in India.’’
Observing the instance of the case where “some students who shouted slogans’’ and a case was lodged, he said, “Police can launch an investigation. But the court cannot take cognizance, unless there is a sanction. A sanction has to be granted on application of mind. It is only when that sanction is granted that the court can take cognizance.’’ And he cited the 1962 landmark SC Judgment in Kedar Nath where the SC while upholding the penal section on sedition clarified that it is not an offence unless it incites violence or public disorder. He mentioned the more recent Bombay high court ruling concerning the political cartoonist Aseem Trivedi The HC had in 2015 laid down guidelines requiring a legal opinion being sought before registering an offence.