Legal ViewOpinion

Flowers may die and old soldiers may fade away, but statutes do neither; they live on indefinitely: Police (Incitement to Disaffection) Act 1922

Laws are meant to cater to the demands of the ever-changing phenomenon and therefore must be revised periodically to weed out laws, which can no longer serve their intended purpose. On similar lines, the Law Commission of India vide its 248th Report recommended repealing of Police (Incitement to Disaffection) Act, Act 22 of 1922. In a witch hunt to target Republic TV Media Network, Office of Mumbai Police Commissioner invoked one of the rarest sections, Section 3(1) – Police (Incitement to Disaffection) Act 1922 belonging to the British Raj & last used during the Emergency era, to target the network’s journalists.

Media autonomy is the heart of social and political intercourse. The purpose of media is to provide citizens with the information they need to make the best possible decisions about their lives, their communities, their societies, and their governments. Constitutional Courts all over the world has the primary duty to uphold the said autonomy and invalidate administrative actions which is contrary to the constitutional norms.

International Covenant on Civil and Political Rights

India has not only signed but also ratified the ICCPR Treaty which expressly provides in Article 14 The press may be excluded from all or part of a trial for reasons of morals, public order  or national security in a democratic society, or when the interest of the private lives of the parties so requires, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.

It further provides under Article 17 That no one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation and that Everyone has the right to the protection of the law against such interference or attacks.

Indian Constitution and Media Rights

Constitution of India under Article 19 (1)(A) provides that all the citizens shall have the right to freedom of speech and expression, which is subject to reasonable restrictions in the interest of the Sovereignty and Integrity of India, the security of state, friendly relations with foreign states, public order, decency or morality, contempt of court, defamation or incitement to an offence. The Constitution 1st Amendment Act redrafted Article 19(1)(a) of the Constitution. The Restrictions can be imposed with respect to existing law or future law but any limitation on the exercise of the right under Article 19(1)(a) not falling within Article 19(2) cannot be valid. Article 19(1) (a) does not mention the Freedom of Press; it has however, been settled by judicial decision in Romesh Thappar v Madras AIR 1950 SC 124 that freedom of speech and expression includes Freedom of media.

Incitement as an offence

The ground incitement to an offence was added in Article19(2) by the 1st Amendment Act in 1951 to save laws punishing incitements to, or abetments of, offences not necessarily involving violence.

 

 Indulal K.Yagnik v. State of Maharashtra the division bench of Maharashtra High Court upheld the validity of Section 3 of the Police (Incitement to Disaffection) Act, 1922 was challenged under Article 19(1)(a). It is however of much importance to highlight the areas underlined by the petitioners and inattentively pass over by the Hon’ble Court. Petitioners contended that the section has nothing to do with the security of State or the public order and that even if it has the section is so wide in its scope that it is unreasonable, that is Its scope is wider than it need be. It was, therefore, urged that the impugned section cannot be said to be a reasonable restriction on the freedom of speech and expression guaranteed under Art. 19 (1) of the Constitution as it cannot be said to have been enacted other in the interests of the security of the State or public order. Speech to police constables, as the speech in this case was which on the assumption that it cases disaffection against the Government of Bombay, cannot affect either the security of State or the public order. Petitioners argued that there is nothing in any statute which prohibits a person to air his views before police constables and that a person might address constables showing to them certain defects in the policy of Government, by showing to them that that policy was not ameliorative.

It was further argued d that unless a law restricting this freedom is directed solely against activities which tend to undermine the security of the State, such a law cannot fall within the reservation under clause (2) of Art. 19 and therefore would be unconstitutional and void. Secondly it would not be possible to uphold a law which purports to authorize the imposition to restrictions on a fundamental right in a language wide enough to cover restrictions both within and without the limits of constitutionally permissible legislative action affecting such a right, even so far as it may be applied within the constitutional limits, as it is not severable.

Therefore, so long as the possibility of its being applied for purposes not sanctioned by the Constitution cannot be ruled out, it must be held to be wholly unconstitutional and void. In other words, clause (2) of Art. 19 having allowed the imposition of restrictions on the freedom of speech and expression only in cases where danger to the State is involved, an enactment, which is capable of being applied to cases where no such danger can arise, cannot be held to be constitutional and valid to any extent.

 

Law Commission of India Report No. 248 “Obsolete Laws: Warranting Immediate Repeal”

Police (Incitement to Disaffection) Act, Act 22 of 1922

Recommendation: Repeal

“This colonial Act introduced as a curb to nationalist activities made it an offence to spread disaffection among the police. The Act is loosely worded and prone to misuse. Also, the Act does not 34 describe what amounts to ‘disaffection’. This law acts as a significant curb on the freedom of speech, though it is not an obsolete law given some documented uses. However, the need for this law should be re-examined in light of its potential infringement of Articles 19(1) (a) and (b) of the Constitution.”

Conclusion

It is aptly demonstrated and rightly observed in the 248th Law Commission of India report that the 1922 Act is loosely worded and prone to misuse therefore should be re-examined in light of Article 19 (1) (a) and (b) of the Constitution. The interference in the realm of freedom of media is declared to be reasonable when it is found to be on the specified grounds mentioned in Article 19(2). However, if the interference puts an unreasonable check on the freedom of media it has been declared as unconstitutional. It remains to be seen if the High Court of Bombay in the ongoing tussle of Republic TV Media Network considers mere criticism of Mumbai Police Commissioner however, strongly worded as inciting disaffection under the 1922 Act.

 

 

 

Siddhant Mishra
Advocate at Lucknow High Court
[email protected]

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