The Maharashtra government’s plan to issue a fresh circular on sedition to substitute the one that is under challenge before the HC may not stand legal scrutiny, say legal experts.
A circular, even if it is meant to be a guide to prevent inept invocation of a criminal charge, “is absolutely redundant and unnecessary,” said several experts on Wednesday. “A circular cannot be equated with a section that exists in an enactment,” said Niteen Pradhan, a senior counsel adding, “What would prevent the state, next, to then come out with a circular on how to use section 302, IPC.”
The HC is hearing petitions filed by a Pune lawyer and cartoonist Aseem Trivedi against the circular. Trivedi had borne the brunt of a hastily filed FIR against him in 2011 in a case of sedition for his cartoons against corruption. A petition filed by an activist resulted in the police and state withdrawing the charge against him and the HC passing an order in March that mere criticism of the government did not amount to sedition. The HC had also in its order recorded a statement of the advocate-general that the state would issue guidelines to all police stations on when to apply Section 124-A of the Indian Penal Code, an offence of sedition that is in existence since 1898, and attracts life imprisonment.
Last month when the state issued the circular it led to an outcry that it would, rather than preventing, attract more abuse of the section and virtually stifle free speech, because of ‘vague’ and ‘additional’ words not found in the actual penal section. Veteran criminal law advocate Shrikant Bhat said, “There was absolutely no need for the government to issue any circular to explain Section-124A of the IPC. In any case a circular issued by the government is not the law and it cannot displace judgements of the high court and Supreme Court.”
Echoing Bhat’s views Pradhan said, “Such a circular would be bad in law. An offence as stipulated in a substantive law would be interpreted by the superior courts and a circular cannot take a higher place.” The government is not supposed to interpret the law it has made, if there is any violation in implementation, the courts will take corrective steps for justice, he said.
But some lawyers say a circular can be essential to prevent misinterpretation by police, especially when it’s the sunlight of democracy at stake. Senior counsel Amit Desai, however cautioned that “the circular should only seek to clarify the existing legal position as held by the apex court on section 124-A to protect fundamental right of free speech and cannot go beyond the law. The danger is in having a circular that could be misinterpreted and not applied in a holistic way in conjunction with judgment of the HC.”
“The state’s circular practically amounts to an amendment of the law which the home department is not empowered to do. The penal sections refers to the word “government” which is not the same as “political parties or politicians,” said advocate Shekhar Jagtap. He added that when a provision of any law appears “insufficient to define a particular act as an offence” then the government can seek to amend it by passing a Bill in the House, not by issuing a “perverse ostensibly clarificatory circular” which is likely to cause more confusion and unwarranted criminal liability, when there is none.
Bhat said the criminal procedure code mandates a police officer “to investigate the facts and circumstances of the case, and if necessary, to take measures of the discovery and arrest of the offender”. Thus an arrest is not necessary merely on registration of an FIR.