On sedition law, govt says repealing can have adverse impact on India's security
The Law Commission of India said that “repealing the legal provision can have serious adverse ramifications for the security and integrity of the country”
The Law Commission of India has recommended the retention of the 153-year-old colonial law on sedition in India, emphasising that “repealing the legal provision can have serious adverse ramifications for the security and integrity of the country.” Instead, the Commission favoured amending Section 124A of the Indian Penal Code or IPC (sedition law) “so as to bring about more clarity in the interpretation, understanding, and usage of the provision.”
According to the Commission, headed by former Karnataka high court chief justice Ritu Raj Awasthi, Section 124A should be amended to align it with the Supreme Court’s 1962 verdict in the Kedar Nath Case, which underlined that the presence of a pernicious tendency to incite violence is a precondition to invoke the sedition clause and that the penal provision cannot be used to stifle free speech.
It added that the sedition law, which carries a maximum punishment of life imprisonment or “three years”, should be amended to enhance the alternative punishment to “seven years”, giving the courts greater room to award punishment for a case of sedition in accordance with the scale and gravity of the act.
The operation of Section 124A, a non-bailable offence that activists and jurists have alleged is often misused to muzzle dissent, is on hold due to a continuing interim order of the Supreme Court on May 11, 2022.
The 279th report of the Commission, answering a reference made to it by the Centre in March 2016, recommended that Section 124A should be amended to 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 India, 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.
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 the issuance of model guidelines in this regard,” said 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.
The Commission said 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 124A and ensure that all such subversive activities are nipped in their incipiency,” said the Commission.
It added the sedition law is a reasonable restriction on the right to free speech and that the mere fact that a particular legal provision is colonial in its origin does not ipso facto validate the case for its repeal.
The report added that in the absence of Section 124A, any expression that incites violence against the government would invariably be tried under the special laws and counter-terror legislation, which contain much more stringent provisions to deal with the accused.
The Commission said that repealing Section 124A of the IPC on the mere basis that certain countries have done so is essentially turning a blind eye to the glaring ground realities existing in India. “These comparative jurisdictions like the US, UK, etc have their own history, geography, population, diversity, laws, etc. which are not comparable to Indian circumstances. Despite this, what some of these countries have actually done is that they have merged their sedition law with counter-terror legislations,” said the report.
On May 1, the Union government informed the top court that the legislative process of reviewing the sedition law was in the “final stages”. It added that “the government is keen on pushing reforms” and that something may be in the works as early as the coming monsoon session of Parliament.
Appearing before a bench headed by Chief Justice of India (CJI) Dhananjaya Y Chandrachud, attorney general R Venkataramani submitted that the government has set up a committee to review Section 124A and that the deliberation with the stakeholders was on. Venkataramani did not mention anything about the Law Commission’s report. The court will hear the case next in August.
On May 11, 2022, the Supreme Court effectively put on hold the colonial-era penal provision, and asked the Centre and states to desist from arresting people or prosecuting them under the contentious provision until the Union government reviews it.
Asserting that the sedition law in India “is not in tune with the current social milieu”, the court in May last year emphasised that “it will be appropriate not to continue the usage of the provision of law by the governments” when the Centre has conveyed a desire to “reconsider and re-examine” the contours and validity of Section 124A.
Two days before the top court suspended the operation of the sedition law, the Union government filed an affidavit saying that it was willing to review the sedition law but urged the court to pause the ongoing judicial scrutiny of the penal provision.
The Supreme Court passed an interim order even as it allowed the Centre to conclude ts exercise. “It is clear that the Union of India agrees with the prima facie opinion expressed by this court that the rigors of Section 124A of IPC is not in tune with the current social milieu, and was intended for a time when this country was under the colonial regime. In light of the same, the Union of India may reconsider the aforesaid provision of law,” said the top court in its May 2022 order.
Putting in place a protective apparatus until the central government took a call on the sedition law, the top court in May 2022 said the Centre and states will restrain from lodging new first information reports (FIRs) under Section 124A while all court proceedings under the law should also be suspended.
It clarified that if any fresh case is registered under Section 124A despite the court’s imprimatur, affected parties should approach the concerned courts, which should pass suitable orders, “taking into account the present order passed [by the Supreme Court] as well as the clear stand taken by the Union of India.”
In cases where the sedition charge has been invoked against the accused along with a set of other penal provisions, the court in its May 2022 order left it to the wisdom of trial courts and high courts to decide if such cases can proceed in relation to other charges, without causing any prejudice to the rights of the accused.
The order came on petitions filed by Trinamool Congress member of Parliament Mahua Moitra, Editors Guild of India, journalists, the NGO Peoples Union for Civil Liberties, etc.