Law Commission has suggested safeguards to prevent misuse of sedition: Chairperson Justice Ritu Raj Awasthi

The Law Commission of India headed by former Karnataka High Court Chief Justice Ritu Raj Awasthi recently submitted a report recommending that the law criminalising sedition should be retained in the statute book..The report created great consternation in the legal circles. Justice Awasthi also headed the bench in the Karnataka High Court which upheld the ban imposed by the State on female students wearing hijab to government schools. The Law Commission is currently also examining other topics including the Uniform Civil Code, one nation one election, review of the entire criminal justice system, implementation of the Protection of Children from Sexual Offences Act and compensation under the Indian Telegraph Act..In this interview with Bar & Bench's Debayan Roy, the former Chief Justice of the Karnataka High Court speaks about the recent report of the Commission on sedition law, the work underway for a possible draft of the Uniform Civil Code, the hijab case and much more. .Edited excerpts below..Debayan Roy (DR): In just eight months, the Law Commission of India under your Chairmanship has come out with three significant reports. Do you miss being part of the bench?.Justice Ritu Raj Awasthi (Justice Awasthi): Not exactly. In, fact this work at the Law Commission is quite different from the judicial work which we perform, but still it is very interesting when you get something new to do. I am finding it very interesting to work as Law Commission Chairperson. I will not say that I am not missing the bench, it was my original work. I was a lawyer for 22 years and a judge for more than 13 years. So can't say I am not missing the work. Here also, there is a different set of challenges. .DR: Take us through your early years. Was being a judge always the goal?.Justice Awasthi: No. When i joined the profession, nobody knew me, and I also hardly knew anybody. I could never think about becoming a judge, because I had joined the profession not to become a judge, but only to do something good in life..DR: The Commission has now sought comments from public and other stakeholders on the Uniform Civil Code (UCC). Do you think it can ever become a reality in India?.Justice Awasthi: I cannot comment on that but it is a requirement of the law that the Constitution mandates- that the State will endeavour to secure a UCC for its citizens. Right from the beginning, the Supreme Court and the High Courts have been insisting on its formation, so you cannot say that it is not necessary..DR: What will it entail? Amendments to personal laws?.Justice Awasthi: Its purpose is to provide a uniform code under which people from all religions can be dealt with on their religious practices and marriage, adoption, inheritance, succession. All of these they must have a common code..DR: Hindus for example have so many complex customs. You have dealt with an array of such petitions as a judge..Justice Awasthi: We do not say that it has to fit in or it has such requirements...We are just examining this issue. We do not know if it will come or not, we can't say that whatever report we submit will be for formation of UCC or even accepted by the government.Our purpose is a reference which has come to us, which has been pending before us and some work has already been done by the Commission earlier. We are to examine the issue, that is all..DR: Will you not draft the Code? Or take a call at a later stage?.Justice Awasthi: Yes. First we will examine if there can be a uniform code. And then if yes, what can be done..DR: It has been more than three years since the reforms on family law consultation paper was floated, but nothing has been implemented. Do you think it is time for the reports to have some kind of a binding value, especially given the amount of work that goes into them?.Justice Awasthi: The role of the Commission is advisory, (reports) have no binding force. It has some persuasive value, no doubt. It is for the government to examine it, and act on it as per the requirement..DR: The recent Law Commission report on Sedition has been widely read and analysed. Do you think increasing the punishment is the need of the hour?.Justice Awasthi: We are not suggesting increase in punishment. That has been wrongly interpreted by the media. We have made recommendations basically on three points: first is we have tried to adopt the ratio laid down in the Supreme Court judgment in the Kedarnath case, just to make it more clear.There is some confusion as to when the sedition offence would be attracted. The Constitution Bench has used certain words which are important and necessary to use in case of the offence. Only those we have used to make things more clear with respect to the offence.The second thing is we have suggested to give some procedural safeguards to avoid its misuse. We have said that when the alleged offence of sedition is committed, an immediate FIR should not be lodged.First, there must be a preliminary enquiry by a person of a rank not less than that of Inspector before a complaint is lodged. Arrest should only be after lodging of the FIR after this stage. The FIR should only be after prior sanction of the Central or State government. The sanction will be based on the prima facie report of the Inspector on the particular offence, which should have cogent evidence on the same. The entire process by the official should be completed within one week.So that is a big safeguard which we have introduced to prevent the misuse. The language we feel is necessary to reduce the misuse. Lot of people had been talking of its misuse.Third thing is, while examining the provision for punishment, we found that there is a large gap...up to three years or life imprisonment, this was very unreasonable. There is no IPC offence with such a big gap in the punishment, no reasons are provided. If in a court, the prosecution has been able to prove the offence of sedition, that it has been committed and the court feels it should be more than three years but not life imprisonment, then there is no discretion with the court.We have only said that it should be up to seven years instead of the three-year period as was provided earlier, along with fine. Now people are not understanding the meaning of "up to". Life imprisonment was already and is still there. But it is not always given. What we found and what we have done was suggested by three earlier Commission reports - 39th, 41st and 42nd..DR: The Shreya Singhal judgment does not find a mention in the report. There is a criticism that the report is contrary to that judgment..Justice Awasthi: No, no way. Whatever we have said is in conformity with the Shreya Singhal judgment..DR: Coming to the hijab case you had heard last year when you were Chief Justice of the Karnataka High Court. How do you see religious attire in religious institutions as a whole? Does the argument of right to choice of attire hold any value here?.Justice Awasthi: We have dealt with this issue in detail in that judgment (upholding the hijab ban). The main argument was that wearing of hijab is part of essential religious practice of Islam, and therefore, constitutionally protected. We examined in detail and concluded otherwise and you cannot say that it is in violation of Constitutional rights.We said that if the uniform of a school does not allow for hijab, you cannot insist on it. We looked at the history and context of introduction of uniforms in detail. We found that if you have a different attire than the uniform, you identify that group as being different from the others and it beats the point of uniform.So you cannot insist on wearing something that gives your a separate identity as it will fail the purpose of uniform, the purpose of which is uniformity, so that you cannot identify them on the basis of their clothing. That was the reasoning..DR: Justice Sudhanshu Dhulia of the Supreme Court had opined that the High Court judgment had not examined how wearing hijab was against public order or morality, and called for empathy towards different religions and cultures..Justice Awasthi: That matter is sub judice before the apex court. I would not want to comment on that..DR: Did you feel any pressure while delivering the hijab verdict?.Justice Awasthi: No. I never have at any time. We have dealt with other such important cases as Chief Justice..DR: There is a lot of debate around judges being influenced by the executive, especially in sensitive cases. Is there any truth to it?.Justice Awasthi: I never found so. In my career, I never had any occasion of official trying to influence me. It depends on the individual. Nobody tried to influence me or come to me..DR: How do judges strike a balance between being aware of what is happening in society and being detached?.Justice Awasthi: You have to have such a mindset to be a judge. When you hold such a responsible position, you have to be very conscious, very clear of the 'dos and don'ts'. It is true that judges are also human beings. They also know what all is happening in the society, they also understand the problems of the society. And accordingly, you find where the law is a developing field, you see how law changes with changes in society. So judges also accordingly deal with the issues before them, and they always have in mind what are the requirements of the society..DR: What is your take on anti-conversion laws? Does it give blanket powers to the police to interfere with the right of citizens to practice their religion?.Justice Awasthi: I cannot answer this without looking at the specific laws by different states, the aims and objectives. Off-hand, we cannot make any comments..DR: Did you think such laws would ever be needed when you joined practice?.Justice Awasthi: It is for the government to decide. As per the requirements of law and order if they feel (it is required), State governments have the power..DR: How can increased dowry demands be addressed in the legislative domain since the Supreme Court has referred this question to the Law Commission? Could no-dowry certificates be a reality?.Justice Awasthi: I cannot say, we will have to examine that issue. But to my mind, I think that it is not a very practical solution, having that kind of certificate. Registration is even not mandatory..DR: There is a lot of debate around hate speech. Does the current legal regime address it or is there a need for new legislation?.Justice Awasthi: The Law Commission has already worked on this and submitted its report. Something needs to be done to reduce this menace, it is a menace, it is not a good thing for society..DR: During your tenure as Chief Justice of the Karnataka High Court, you actively batted for better roads in Bengaluru. What prompted you to take up this cause? Did you see the results of your orders?.Justice Awasthi: We sometimes have to be a little proactive in such problems related to the public at large. The same was the condition of roads. Because there are heavy rains in Bengaluru, about eight months in a year, you need constant repair and maintenance, and there is heavy traffic. A public interest litigation (PIL) was filed where it was alleged that the authorities were not taking steps for maintenance, where I issued some directions and the government took them very well and big improvements were made at the time..DR: You started a commercial division at the High Court to hear matters of international commercial arbitration. How did it happen?.Justice Awasthi: There is lot of commercial litigation at the Karnataka High Court. Already commercial courts have been set up in all districts. In one case of international arbitration, there was some jurisdictional issue as to which court should entertain appeals against such awards. So in that respect, we passed the judgment that led to this, that they are challengeable in the Karnataka High Court, whether either of the parties or award is not in India. We also said that in such cases, a single judge will have the jurisdiction..DR: Do you see India becoming a hub of international commercial arbitration?.Justice Awasthi: There is a lot of commercial litigation here. Now with the new Arbitration Act, in most agreements, there is already an arbitration clause that is invoked. Lot of cases are filed which is a very good way to redress differences between parties. In a manner, it is a progressive step. In India, since commerce and industrialisation is increasing, arbitration is very useful. Some more improvements are required..DR: Do you think Chief Justices of High Courts should have longer tenures, given that it takes time to understand how a State functions etc. Do you think the work gets undone after retirement?.Justice Awasthi: No no. The procedure and working of the judiciary is still very effective and useful. Some small improvements are welcome, but no major changes are required in our setup. I do not find so..DR: No retirement age extension?.Justice Awasthi: It is for the government to decide. We should not interfere in that domain..DR: There is a perception that former judges accepting post-retirement jobs raises questions regarding the independence of the judiciary. Do you see any truth to this?.Justice Awasthi: It is well-established in our system now that judges after retirement are offered assignments, tribunals, commissions and places where there is judicial work. I do not find any problem in that. Government has also made the necessary rules and relevant Acts to deal with such appointments and their terms and conditions. As per the requirements of law and order, if they feel, governments have the power (to appoint retired judges).