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The judge, who recently resigned, was speaking at Government Law College, Mumbai on the theme "Free Speech and Sedition."
Former judge of the Bombay High Court, SC Dharmadhikari recently defended the continued existence of sedition laws, in view of the mandate that its application must be be tested on the anvil of the Constitution.
The judge was speaking at the Principal Dr TK Tope Memorial Lecture at the Government Law College, Mumbai on the theme, 'Free Speech and Sedition'. The former judge, whose resignation was recently notified, observed,
“What is happening today, and ordinarily being understood, is that if I stand in a corner and if I say something, my speech will be taken as seditious. I may be pulled up. I may be put behind bars. That is not so … Any such provision by its existence does not take away your freedom or right.”
Justice Dharmadhikari opined that rather than going by incomplete accounts in the news or on social media, students of law must be acquainted with how sedition laws are understood in law.
He spoke extensively on how sedition has been defined under Section 124A of the Indian Penal Code (IPC), the ingredients that must be satisfied for the offence to arise, and the rigorous process that has to be followed before a court can commence trial over the same [with reference to Section 196(1), CrPC].
He proceeded to observe that sedition laws are unduly viewed as draconian. This is in view of the fact that it can only be interpreted on Constitutional principles.
He challenged the presumption that sedition is an unreasonable exception to the right of free speech and expression, while emphasising that anyone accusing another of sedition “will have to establish it with proof.” He went on to observe,
“Students need not fear. Students of law, all the more, need not fear… The fact that we can assemble here and discuss all this, the fact that I can freely speak to you, is enough proof there is a right to free speech, which is not affected by such provisions in the law."
Notably, he also spoke in support of the Supreme Court’s “classical” verdict in the case of Kedarnath Singh v. State of Bihar, wherein the validity of the sedition law under Section 124A IPC was upheld. While explaining that all laws must be tested on the anvil of the Constitution, the former judge remarked,
“A Constitution is supposed to be the mother of all laws. If the Constitution permits you to enact a law, the law stands; else it goes… Once it is challenged, the presumption is that it is Constitutional."
"All that Kedarnath Singh says is that the Allahabad High Court should not have declared Section 124A as unconstitutional. It is very much Constitutional - you [need to] read it in the context, you [need to] read it fully, you [need to] interpret it in the backdrop of everything including our Constitutional freedoms - it can stand.”
Justice (former) SC Dharmadhikari
If the laws were interpreted on the basis of what the Constitution provides, Justice Dharmadhikari told the audience,
"... you will see that all these provisions by themselves are not draconian. They can stand, they have to and they will.”
Justice (former) SC Dharmadhikari
The judge also emphasised that,
“When the court has an occasion to interpret the law, the interpretation of the court of that law, as enacted, is law.”
The Court also spoke of how the more worrying concern is regarding the ignorance of the Constitution and the law, which the judge termed was “large-scale”. He added,
During the course of his speech, the former judge also told the audience,
“Each word of what I have said is there in the Preamble, I have not said anything of my own… [it] is borrowed from the Constitution. Just see the Preamble, how wonderfully it is worded so we know our responsibility as citizens.”
As he concluded his address, the former judge said,