Allahabad: The Allahabad High Court has come down heavily on a magistrate in Mahoba district in Uttar Pradesh for initiating proceedings on sedition charges against Finance Minister Arun Jaitley for his comments on the Supreme Court verdict striking down the NJAC Act saying, he had committed a "manifest illegality".
"....this Court is of the firm opinion that none of the ingredients essential for invoking the provisions of Sections 124A or 505 of the Penal Code stood attracted to the article in question.
"The magistrate has committed a manifest illegality in forming an opinion that an offence under the above provisions stood prima facie committed," Justice J Yashwant Varma said in a 17-page order setting aside the order passed by Ankit Goel, Judical Magistrate of Kulpahar, Mahoba district.
Taking suo motu cognisance of an article written by Jaitley on the apex court striking down the National Judicial Appointments Commission Act and posted on his Facebook page titled "NJAC Judgement-An Alternative View", the magistrate proceeded to summon Jaitley under sections 124A (sedition) and 505 (statements conducive to public mischief) of the Indian Penal Code.
The magistrate recorded that no citizen has a right to disrespect the three pillars of democracy--Executive, Legislature and the Judiciary--and then proceeded to record an order of a Court can be questioned only by following a procedure prescribed by law.
He had also held that the comments of the finance minister "undoubtedly spread hatred and contempt against a duly-elected government and accordingly, in his opinion, the applicant prima facie appears to have committed offences under Section 124A and 505 IPC.
Jaitley was summoned to appear before the court on Nov 19 against which he moved the high court seeking quashing of the proceedings of the magistrate.
Counsel for Jaitley raised before the high court both procedural as well as fundamental objections to the proceedings initiated by the Magistrate.
He contended that Section 124A as well Section 505 are both offences which fall within the ambit of Section 196 of the Criminal Procedure Code, which bars any court from taking cognisance of an offence without the previous sanction of the central government or the state government.
The magistrate had acted clearly in excess of jurisdiction in proceeding to take cognisance and summoning Jaitley without complying with the provisions of the Criminal Procedure Code, the counsel contended.
The counsel also said that criticism of a judgement was not contempt and by any view it can never be described as sedition.
Justice Varma ruled that "in the opinion of the court, therefore, cognisance taken under either of clauses (a), (b) or (c) of Section 190(1) would have to conform with the requirements of Section 196....It, therefore, clearly follows that the Magistrate could not have taken cognisance except with the previous sanction of the Government."
"This court holds that the Magistrate clearly erred in proceeding to exercise jurisdiction under Section 190(1)(c) and, therefore, the order taking cognisance of the alleged offence and issuance of summons cannot be sustained," Justice Varma observed.
Examining whether the contents of Jaitley's article can by any stretch of imagination be said to have resulted in the commission of offences including of sedition, the judge cited views of the Constitution bench of the Supreme Court to say "it is clear that the section aims at rendering penal only such activity which is intended to or which would have a tendency to create disorder or disturbance of public peace".
"In order for words written or spoken to fall within the ambit of section 124A, they would necessarily have to be of a category which would qualify as having a "pernicious tendency" of creating public disorder or law and order. Only then would the law step in to prevent such activity," Justice Varma said.
He observed that "the contents of the article written by the applicant can by no stretch of imagination be said to be intended to create public disorder or be designed or aimed at exciting the public against a Government established by law or an organ of the State.
"The article merely seeks to voice the opinion and the view of the author of the need to strike a balance between the function of two important pillars of the country. It is surely not a call to arms.
"For the aforesaid reasons, this Court is of the firm opinion that none of the ingredients essential for invoking the provisions of Sections 124A or 505 of the Panel Code stood attracted to the article in question.
"The Magistrate has committed a manifest illegality in forming an opinion that an offence under the above provisions stood prima facie committed," Justice Varma said.
Justice Varma held that the freedom of speech and expression guaranteed by the Constitution to all citizens required tolerance of even unpopular views.
"The free flow of ideas and opinions is an essential concomitant for the intellectual growth of the citizenry. Plurality of views and opinions is an essential facet of a democracy and of great societal importance," he said.
The judge noted that the order of the Magistrate does not record that the contents penned by the minister would tend to incite the people to insurrection OR rebellion.
"Disrespect, even if it were assumed that the article did so, does not render the action liable to prosecution for offences under section 124A or section 505. The right to air an opinion, to dissent, intellectual discourse are the heart and soul of the freedom of speech and expression which stands conferred upon all citizens by our Constitution," he said.
Justice Varma said the Magistrate appears to have closed his eyes to the well-settled view that healthy criticism or even intellectual disagreement with a particular view of a judge contained in a judgement of the court is not a crime.
He noted that initiation of criminal prosecution has serious consequences. It relates to the life and liberty of a citizen and carries with it grave consequences.
"Viewed in that light it is obvious that the exercise of power by the Magistrate must be preceded by due application of mind and circumspection.... However, in the facts of the present case this Court finds that the assumption of jurisdiction and issuance of process failed to adhere to the principles laid down in the judgements aforementioned.
"The Magistrate failed bear in mind the impact of the prohibition under section 196 of the Criminal Procedure Code. Compliance with is provisions was a prerequisite for taking cognisance. The contents of the article in question was liable to be scrutinised on the touchstone of whether it contained statements which met the basic ingredients required to qualify as an act of 'sedition' or an act intended to induce persons to commit an offence against the State.
"Was the article a call to arms, rebellion, insurrection? The answer must obviously be in the negative. The Magistrate in the opinion of the court clearly failed to bear in mind the caution and circumspection which should have preceded his assuming jurisdiction and issuing summons," Justice Varma said quashing the Magistrate's order.
