The Constitutional Conduct Group (CCG) of retired senior civil servants has urged the Supreme Court to strike down not only the penal section that criminalises sedition but also similar provisions in other laws that are misused by governments to curb dissent.

The 108 signatories included former Delhi lieutenant governor Najeeb Jung, retired cabinet secretary K.M. Chandrasekhar, former foreign secretary Sujatha Singh, several retired Union secretaries, chief secretaries, directors-general of police, as well as ex-top bureaucrats from the Indian Forest Service, Indian Revenue Service, Research and Analysis Service, Indian Postal Service and the Central Public Works Department.

They said in an open letter: “Review and revision by the executive cannot be a substitute for judicial determination of the constitutional limits of the power of the executive to restrict freedom of speech and expression…. The only way that the citizen’s right to freedom of speech and expression can be protected is if the Supreme Court examines Article 19 under the ‘basic structure of the Constitution’ principle with reference to all existing laws and provisions that put curbs on this freedom.”

Last month, the Supreme Court put Section 124A of the Indian Penal Code that criminalises sedition on hold until the Centre re-examines the provision.

The signatories added: “The armoury of arbitrary weapons used to suppress dissent and opposition and control the free formation of public opinion has expanded over the years to include a number of offences similar to those under Section 124A. Prominent amongst these offences are Section 153A of the IPC (promoting enmity between different groups on ground of religion, race, place of birth, etc.), Section 153B (imputations, assertions prejudicial to national integration), Section 505 (statements conducive to public mischief) and Section 505(2) (statements creating or promoting enmity, hatred or ill-will between classes). These provisions are today widely and routinely misused by the police and their political masters with the same objective as in the case of Section 124A.

“Over the years, slowly and surreptitiously, the substance of the offence of sedition has been ‘snuck’ into the Unlawful Activities (Prevention) Act, 1967, defined more elaborately, and with more draconian consequences, than in Section 124A….

“If Section 124A of the IPC is held by the court to be unconstitutional, because speech and expression that merely create disaffection are protected (and not prohibited) under Article 19(1), Section 2(1)(o)(iii) of the UAPA will also need to be amended to delete elements imported from Section 124A, viz. the criminalisation of speech and expression which is not an integral part of any violent, illegal, criminal act.”

The CCG argued that merely deleting Section 124A would give the Centre a monopoly in prosecuting sedition.

“Currently, state governments are free to prosecute persons for offences under the IPC, including for sedition under Section 124A. No permission of the Union government is required. States ruled by political parties other than that at the national level sometimes use Section 124A to prosecute supporters of the national ruling party for sedition (as recently happened in Maharashtra).

“The ruling party at the Union level is powerless to prevent such prosecution. The UAPA, on the other hand, vests no powers with the state governments. It provides that no court shall take cognisance of any offence of unlawful activity without the previous sanction of the Centre.”

The CCG suggested: “Given that no democracy can exist without freedom of speech and expression, including the right to promote opinions unfavourable to the government, the Supreme Court should use this opportunity to declare an overarching ‘basic structure principle’ of the Constitution protecting freedom of speech and expression including the reasonable restrictions mentioned in Article 19(2), so that government interference with individual freedom of speech and expression can be prevented.”