Sedition in India through law panel reports, past and present

The law, which is on hold due to a continuing interim order of the SC, has been criticised for being misused by the State to stifle protest and dissent.

The 279th report of the Law Commission of India recommending the retention of the sedition law, with a few not-so-significant changes in the legal regime, has brought the 153-year-old colonial law to the centre stage yet again.

Section 124A of the Indian Penal Code (sedition law) — a cognisable and non-bailable offence punishable with life sentence or a jail term up to three years.(AP file photo)

Read here: Top court must strike down the sedition law

Section 124A of the Indian Penal Code (sedition law) — a cognisable and non-bailable offence punishable with life sentence or a jail term up to three years, and one that rights activists and jurists have alleged is often misused by the State to stifle protest and dissent — is currently on hold due to a continuing interim order of the Supreme Court passed on May 11, 2022.

At that time, the top court said that the colonial-era law “is not in tune with the current social milieu”, stressing that “it will be appropriate not to continue the usage of the provision of law by the governments” when the Centre itself has conveyed a desire to “reconsider and re-examine” the contours and validity of Section 124A.

On May 1, 2023, the Centre informed the Supreme Court that the legislative process of reviewing the sedition law was in the “final stages”, adding “the government is keen on pushing reforms” and that something may be in works as early as the coming monsoon session of Parliament (July-August). The submission prompted the court to defer the judicial determination of the validity of the controversial law until the second week of August.

Meanwhile, the Law Commission came out with a report, dated May 24, as it answered a reference on the sedition law made to the panel in March 2016 by the Union home ministry. This is, however, not the first time that the Commission has scrutinised the usage of Section 124A of IPC.

The non-statutory body, which carries out research in the field of law and makes recommendations to the Centre in the form of reports, had undertaken a similar exercise five decades ago and made certain recommendations which were not translated into legislative changes. The latest report by the Commission makes it fitting to appraise the differences in the panel’s approach and final recommendations.

1971 Law Commission report

Headed by KVK Sundaram, a civil servant who was the first law secretary of independent India, the Law Commission dealt with the sedition law as it set down to review IPC in toto. Three years before that, the Commission, while answering a reference as to whether the punishment of imprisonment for life ought to be rigorous or simple, termed it “extremely anomalous” that an offence such as sedition is punishable with either a life term or a jail term up to three years, but not more. In this 39th report of 1968, the Commission said that these questions will be considered when IPC is taken up for revision.

In its 42nd report, in 1971,the Commission favoured retention of the sedition law with a wider definition but, crucially, recommended that the maximum punishment under Section 124A be fixed at seven years in jail and fine.

Calling Section 124A as “defective” in its present form, the report rued that the pernicious tendency or intention underlying the seditious utterance has not been expressly related to the interests of integrity or security of India or of public order. “We feel that this defect should be removed by expressing the mens rea as intending or knowing it to be likely to endanger the integrity or security of India or of any State or to cause public disorder,” said the report.

Read here: Sedition law mustn’t trump basic rights

The Commission suggested that the scope of Section 124A should be widened to include disaffection against the Constitution of India, legislatures and the administration of justice (judiciary), along with the executive government, as a penal offence.

But the most significant recommendation of the 1971 Law Commission pertained to reducing the maximum punishment under Section 124A from life imprisonment to seven years in jail. “The punishment provided for the offence is very odd. It could be imprisonment of life, or else, up to three years only, but nothing in between. The legislature should, we think, give a firmer indication to the courts of the gravity of the offence by fixing the maximum punishment at seven years’ rigorous imprisonment and fine,” it said.

Finally, the Commission proposed a new definition for the offence of sedition: “Whoever by words, either spoken or written, or by signs, or by visible representation, or otherwise, excites, or attempts to excite, disaffection towards the Constitution, or the Government or Parliament of India, or the Government or Legislature of any State, or the administration of justice, as by law established, intending or knowing it to be likely thereby to endanger the integrity or security of India or of any State, or to cause public disorder shall be punished with rigorous imprisonment for a term which may extend to seven years, and shall also be liable to fine.”

However, the Union government did not accept the revision proposed by the Commission.

2017 Law Commission report on hate speech and 2018 consultation paper

The 267th report of the Commission on hate speech in 2017 also touched upon the essential elements constituting the offence of sedition in India. The report distinguished between sedition and hate speech, providing that the offence of hate speech affects the State indirectly by disturbing public tranquillity, while sedition is directly an offence against the State. “To qualify as sedition, the impugned expression must threaten the sovereignty and integrity of India and security of the State,” added the report.

In a particular situation, the 267th report held, hate speech may become sedition, pointing out that various acts relating to hate speech overlap in IPC as they seek to prescribe punishments for offences relating to religion, public tranquillity and harmony, criminal intimidation, national integration, insult and annoyance.

In 2018, the Law Commission came out with a consultation paper on the law of sedition in the wake of the reference made to it by MHA in March 2016. It underscored that Section 124A should be invoked only in cases where the intention behind any act is to disrupt public order or to overthrow the government with violence and illegal means.

“Every irresponsible exercise of right to free speech and expression cannot be termed seditious. For merely expressing a thought that is not in consonance with the policy of the Government of the day, a person should not be charged under the section... Berating the country or a particular aspect of it, cannot and should not be treated as sedition. If the country is not open to positive criticism, there lies little difference between the pre- and post-Independence eras,” stated the Commission.

While it is essential to protect national integrity, the Commission maintained, the sedition law should not be misused as a tool to curb free speech. “Dissent and criticism are essential ingredients of a robust public debate on policy issues as part of vibrant democracy. Therefore, every restriction on free speech and expression must be carefully scrutinised to avoid unwarranted restrictions,” added the Commission, inviting public views on the retention of Section 124A.

2023 Law Commission report and the way forward

Following the conclusion of the consultation, the panel submitted its 279th report on the sedition law to the Centre on May 24 even as it recommended that the colonial law be retained. Balancing freedom of expression with collective national interest is one of the key ingredients of this law, opined the Commission, insisting that “repealing the legal provision can have serious adverse ramifications for the security and integrity of the country”.

Read here: Retain sedition in IPC, make it tougher: Panel

The panel mentioned statistics on deaths of security forces and civilians due to insurgency, militancy and terrorism in various states, including Chhattisgarh (Maoist violence), the North-East states and Jammu & Kashmir, to emphasise that India’s internal security must be shielded to enable it to exercise its sovereignty and protect its territorial integrity.

Opposing the repeal of the law, the Commission asserted that Section 124A has its utility in combating anti-national and secessionist elements as it seeks to protect the elected government from attempts to overthrow it through violent and illegal means. “The continued existence of the government established by law is an essential condition for the security and stability of the State. In this context, it becomes imperative to retain Section l24A and ensure that all such subversive activities are nipped in their incipiency,” it said.

The panel extensively borrowed from the Supreme Court’s 1962 verdict in the Kedar Nath Case, which held that Section 124A was constitutional as the restriction it sought to impose on the freedom of speech and expression was a reasonable restriction under Article 19(2).

About the provision being a colonial vestige, the panel rejected the contention noting that the mere fact that a particular legal provision is colonial in its origin does not ipso facto validate the case for its repeal. “What Section 124A of IPC seeks to penalise is only the pernicious tendency to incite violence or cause public disorder in the guise of exercising right to freedom of speech and expression,” it said.

Thus, the Commission recommended amending Section 124A “so as to bring about more clarity in the interpretation, understanding and usage of the provision”.

The new definition it proposed read as: “Whoever by words, either spoken or written, or by signs, or by visible representation, or otherwise, brings or attempts to bring into hatred or contempt, or excites or attempts to excite disaffection towards, the Government established by law in lndia, with a tendency to incite violence or cause public disorder shall be punished with imprisonment for life, to which fine may be added, or with imprisonment of either description for a term which may extend to seven years, to which fine may be added, or with fine.”

The proposed provision incorporates “with a tendency to incite violence or cause public disorder” in Section 124A, as elucidated in the Kedar Nath verdict, and enhances the alternative punishment from three to seven years in jail. Unlike the 1971 report, it retained life term as the maximum punishment. The expression “tendency”, the Commission said, means a mere inclination to incite violence or cause public disorder rather than proof of actual violence or imminent threat to violence.

It also prescribed procedural safeguards to minimise the abuse of the penal provision. “This can be achieved by introducing certain procedural safeguards that can be laid down by the central government through issuance of model guidelines in this regard,” stated the report, dated May 24.

Alternatively, the Commission said, Section 154 of the Criminal Procedure Code could be amended to hold that a first information report (FIR) under Section 124A would be registered only after a police officer, not below the rank of Inspector, conducts a preliminary inquiry, and on the basis of the report made by the officer the central government or the state government grants permission for registering the FIR.

Hours after the report was made public, Arjun Ram Meghwal, minister of state in charge of the Union law ministry, said that the government will take an “informed and reasoned” decision on the report after consultations with all stakeholders. The minister also stressed that the recommendations made in the report are persuasive and not binding.

In August, when the Supreme Court will take up the clutch of petitions challenging the validity of Section 124A, there will most likely be two judicial recourses presented before it. First, the government will have to satisfy the court as well as the petitioners with the legislative steps taken by it, which may include amending the provision or choosing to completely do away with Section 124A. Second, the three-judge bench will be called upon to decide on constituting a larger bench to reconsider the 1962 verdict of the five-judge bench in the Kedar Nath Singh Case.

Read here: On sedition law, govt says repealing can have adverse impact on India's security

Dissent and criticism are essential ingredients of a robust public debate on policy issues as indispensable part of a vibrant democracy, and the proceedings before the Supreme Court on the validity of the sedition law, as it stands today, will reflect the top court’s definition of the central tenets of liberty, free speech and reasonable restrictions.