Common Cause, represented by senior advocate Prashant Bhushan, says the section is being repeatedly used by authorities to "instill fear"and "scuttle dissent" over sensitive issues and to create a framework within which the prosecution of these offences could be undertaken.
The petition highlights the landmark constitutional bench dictum of the Supreme Court in Kedar Nath vs State of Bihar and lists several instances where the judgment has been disregarded, leading to severe violations of the fundamental rights of individuals. That 1962 verdict had read the provision in a strict and narrow sense, as is customary in criminal jurisprudence, and stated the offence of sedition was complete only when all the essential requirements were satisfied.
The representations complained of, it had said, must have had a clear tendency or intention to create public disorder, disturbance of the law or to incite violence. Mere words (or representations), used to express disapprobation of measures used by a government, with a view towards creating improvement or alteration in a system, had been expressly excluded in the provision and would not constitute sedition, the judges had said, even if it created disaffection amidst certain people.
Similarly, comments made without inciting feelings of public disorder or acts of violence would not constitute seditious activity and could not be prosecuted. They do not come under the ambit of "disloyalty towards the government established by law" under the relevant section.
Only words (or representations) which had an implicit or pernicious tendency of subverting a legitimate government by violent means, akin to a revolution, could be termed seditious, the SC had said.
The ruling also mentioned that a penal provision such as sedition must be interpreted in the light of its antecedent history and by identifying the mischief sought to be remedied. There had to be a balance between an individual's fundamental rights and the government's interest in upholding public order.
According to a National
Crime Records Bureau report in 2014, there were 47 cases of sedition filed across nine states in that year. Most of these did not involve violence or the incitement of violence. And, of the 58 people arrested in connection with the charges, only one conviction was eventually secured. In various sedition cases, allegations have often failed to withstand the eventual test of judicial scrutiny but the process itself became the punishment for those accused.
The proceedings that usually follow a sedition charge include significant mental and physical harassment, including the seizure of passports, denial of government employment, regular appearances before courts and legal expenses.
The Common Cause petition calls for regularisation of the country's sedition laws in accordance with the International Covenant on Civil and Political Rights, to which India became a signatory in 1979.
The petition seeks implementation of compulsory norms which must be followed by the authorities, including the issuance of a reasoned order from the Director General of Police or the Commissioner of Police concerned, certifying an act as seditious before a case is registered or arrests made. And, the requirement of similar certifications by magistrates in cases of private complaints.
The petition also prays for the dropping of pending charges or termination of ongoing proceedings in cases where these essential requirements of an offence cannot be made out on a basic reading of the facts.