There is a need to revisit India’s controversial sedition law, the newly-appointed chairman of the Law Commission said, flagging a sensitive issue weeks after the arrest of several JNU students sparked a nationwide debate on nationalism and free speech.
“We should give it a fresh look. The Indian Penal Code was drafted almost 150 years ago and the British rulers had a different purpose behind the law. It’s time for us to examine whether the law holds good today or not,” justice BS Chauhan told Hindustan Times.
JNU students’ union leader Kanhaiya Kumar and two others were arrested in February over an event when anti-India slogans were allegedly shouted. They were among six students charged under the sedition law.
Justice Chauhan – a retired Supreme Court judge who took over as the chairman of the 21st Law Commission earlier this month – however, said misuse of a particular law can’t be the sole ground to declare it unconstitutional or to repeal it. The commission advises the government on legal issues but its recommendations are not binding.
“Whatever recommendations we make would be after having a public debate involving law universities…law teachers and after examining its definition, judicial pronouncements and taking into views of all concerned.”
Several opposition parties have demanded that the sedition law should be thrown out as it was a relic of the Raj.
Justice Chauhan’s statement comes a few days after the Narendra Modi-led NDA government told Parliament that the sedition law was a broad-brush measure and needed a review.
“Anybody who speaks against the government can be booked under sedition law. Amendments have been suggested because the definition is very wide. That is why concerns have been raised,” minister of state for home Kiren Rijiju told the Rajya Sabha last week.
Home minister Rajnath Singh said the government would call a meeting of all parties to discuss the matter after the Law Commission submitted its recommendations.
Justice Chauhan and the commission’s member, justice Ravi R Tripathi, said they would like the government to prioritise the issues it wanted the panel to take up.
Law on sedition
Sedition was not a part of the original IPC that came into force in 1862. It was added to the in 1870 and its scope and ambit was broadened in 1898 to deal with the freedom movement that was gaining ground.
According to Section 124A, a person commits the crime of sedition if s/he brings or attempts to bring into hatred or contempt, or excites or attempts to excite disaffection towards, the government established by law in India. It can be by words, either spoken or written, or by signs, or by visible representation, or otherwise. The maximum punishment for sedition is imprisonment for life. Explanation 1 to Section 124A clarifies that the expression “disaffection” includes disloyalty and all feelings of enmity.
Explanation 2 and 3 to Section 124A make it clear that comments expressing disapprobation of the measures of the government or an administrative or other action of the government with a view to obtain their alteration by lawful means, without exciting or attempting to excite hatred, contempt or disaffection, do not amount to sedition.
The Supreme Court upheld its validity in Kedar Nath Singh versus State of Bihar in 1962.
A five-judge constitution bench headed by then chief justice of India BP Sinha said though the section imposed restrictions on the fundamental right to freedom of speech and expression, the restrictions were in the interest of public order and were within the ambit of permissible legislative interference with the fundamental right.
The law struck the correct balance between individual fundamental rights and the interest of public order, the SC said.
The apex court, however, clarified sedition law would be attracted only if the offence was such that it could cause “public disorder” by acts of violence.
But despite the clarification given by the SC, sedition law has often been misused by various states.
Asked if he favoured de-criminalising gay sex, justice Chauhan said: “There should be a public debate. England also debated the contentious issue for more than a decade before finally de-criminalising it. A commission was appointed in 1957 to look into it and ten years later homosexuality was de-criminalised.”
He said discussions should happen and then Parliament should make a law in the light of public opinion.
Justice Chauhan -- who was a member of the SC bench that upheld Mumbai blasts case convict Yakub Memon’s death penalty – said: “Let it be on the statute book. Where they (courts) feel death penalty is not required, let them give fixed term sentences such as 30 years or 40 years in jail.”
Stating that the Mumbai blasts case was not a simple case of bombing but a war against the nation, he said that “even in that case we commuted the death sentence of so many convicts and upheld the death sentence of just one of them”.
Uniform civil code
He refused to comment on the issues of uniform civil code and discrimination against women in Muslim Personal Law, saying these issues are pending before the Supreme Court. He however, said gender discrimination was there in other religions’ personal laws as well and Parliament should consider these issues.
Justice for poor
The Law Commission chairman said he would strongly recommend that judiciary reserve some of its time for poor litigants, particularly those languishing in jails. “There should be dedicated benches to hear bail matters of those languishing in jail for years,” he added.