Mumbai: The Bombay High today extended its interim order restraining Maharashtra government from acting on its controversial circular issued to prevent misuse of IPC section 124-A which deals with sedition.
A bench of Justices V M Kanade and Shalini Phansalkar- Joshi extended the interim order till the government files a reply to two petitions challenging the constitutional validity of the August 27 circular.
Government pleader Usha Kejriwal sought time on the ground that she had to seek instructions whether the state government would withdraw the controversial circular or issue a new one incorporating changes therein.
The judges posted the matter for hearing on November 27 and asked the government to take a stand on the issue.
One petition was filed by famous cartoonist Aseem Trivedi and three others, while the other one was filed by advocate Narendra Sharma.
Bhau Tausekar, a journalist in Tarun Bharat, intervened today to support the government circular, saying the state was empowered in extreme and rare circumstances to invoke the anti-sedition law whenever there is rebellion among people or when members of public are incited against obeying laws.
The impugned circular, which has sparked a row, has laid down certain conditions required to be considered for initiating action against a person under section 124-A of IPC.
According to the petitioners, the impugned circular of August 27 was unconstitutional and violated fundamental rights of a citizen.
Cartoonist Trivedi was arrested on September 8, 2012, on the basis of an FIR under section 124-A (sedition) and other provisions of IPC for cartoons published on 'India Against Corruption' website. However, on a PIL, Bombay HC had granted him bail.
Later, the state government, on the advise of Advocate General, had dropped the charge though the case under other provisions of IPC continued against him.
The circular laid down conditions to be observed while invoking sedition offence. This circular has now been challenged by Trivedi and others.
According to Trivedi's lawyer Mihir Desai, some clauses of the impugned circular issued by the state were vague and contrary to the law laid down by the Supreme Court as well as High Courts.
Trivedi's petition opposed the circular as it allegedly said that any citizen criticising a public personality or a politician is responsible of an act of sedition.
"This ambiguity can be misused by the state against an individual citizen for fair criticism of politician or public personality and or against a fair criticism of their policies," the petition said.
It further said that the circular, which is meant to prevent misuse of section 124A IPC (sedition) by Law Enforcement department, does not mention even the basic ingredients required for invocation of this provision of law against any person.
Trivedi and others contended that clause 1 and 2 of the circular do not mention the basic ingredients of sedition i.e words (spoken or written), signs or representations must be made with object to overthrow or subvert the government (central or state) established by law by "violent means", by creating feeling of contempt or hatred or disaffection against it or by bringing or attempting to bring into hatred or contempt towards it or by exciting or attempting to excite disaffection towards it.
The petition said that the "government established by law" has to be distinguished from the persons for the time being engaged in carrying on the administration (bureaucrats).
Also, a politician is not an administrative figure of the government established by law.
The other petition filed by Narendra Sharma also prayed for similar reliefs while submitting that the circular was unreasonable and against the spirit of the Constitution.
Both the petitions prayed for quashing the circular as it infringed upon the fundamental rights of the citizens and was unconstitutional.
The petitions said that in order to invoke the offence of sedition, the "feelings" of contempt or hatred or disaffection against the government established by law or by bringing or attempting to bring into hatred or contempt towards it or by exciting or attempting to excite disaffection towards it must also be accompanied by apprehension of public disorder "by acts of violence."
The petitioners contended that clause 1 and 2 of the circular does not mention that "apprehension or anticipated danger" must be based on reasonable ground that the danger apprehended is real and imminent.