Sedition gets new name in bill; ambit wider, penalty harsher
A key change in the draft Section 150 is to remove an old provision which allowed a person convicted of sedition to get away with a fine.
New Delhi The act of sedition continues to be a crime under a proposed Indian law introduced in the Lok Sabha on Friday, albeit under a different name, with the punishment for it actually being increased.
Union home minister Amit Shah on Friday said in the Lok Sabha that one of the proposed legislations aimed at overhauling the criminal justice system will completely repeal the offence of sedition, as prescribed under Section 124A of the Indian Penal Code (IPC), adding that the bill will be sent to a parliamentary panel for scrutiny.
An analysis of the Bharativa Nyaya Sanita Bill, 2023, however, suggests that the offence of sedition has been retained under the proposed law with a new nomenclature and a more expansive definition of what will constitute “acts endangering sovereignty, unity and integrity of India”, even as it removes the words “disaffection towards the Government established by law in India” from the old Section 124A of IPC.
While the new provision, inducted as Section 150 of the bill, is more specific than the old one and directly targets secessionism, separatism, and a call for armed rebellion -- without using the words “contempt” or “hatred” against the Government of India (as is under Section 124A), it leaves ample room for interpretation by neither incorporating the test of incitement to violence in the proposed provision nor connecting the act to public order.
The proposed Section 150 continues to criminalise any act that “excites or attempts to excite” secessionist activities or “encourages feelings of separatist activities” instead of making incitement to violence or disruption to public order a condition precedent to invoke the charges.
Additionally, Section 150 in the 2023 bill penalises a person who “indulges in or commits any such act”, vesting with law enforcement agencies a greater discretion to decide what can be brought within the fold of an act “endangering sovereignty, unity and integrity of India” for the purposes of slapping the charges.
Significantly, Article 19(2) provides that state can frame any law to impose reasonable restrictions on free speech “in the interests of the sovereignty and integrity of India”, implying the proposed law seeks to derive its authority and justification from this constitutional provision.
Section 150 reads as: “Whoever, purposely or knowingly, by words, either spoken or written, or by signs, or by visible representation, or by electronic communication or by use of financial means, or otherwise, excites or attempts to excite, secession or armed rebellion or subversive activities, or encourages feelings of separatist activities or endangers sovereignty or unity and integrity of India; or indulges in or commits any such act shall be punished with imprisonment for life or with imprisonment which may extend to seven years and shall also be liable to fine.”
Section 124A of IPC currently reads 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, shall be punished with imprisonment for life, to which fine may be added, or with imprisonment which may extend to three years, to which fine may be added, or with fine.”
A comparative evaluation between the old and the new would show that Section 150 has included “electronic communication” and “use of financial means” as tools of perpetuating an act “endangering sovereignty unity and integrity of India”.
Experts, however, say that the by making any act endangering sovereignty or unity and integrity of India an offence, Section 150 seeks to take within its sweep almost everything, including a speech, a book or an article, a drama or an act – everything that Section 124A of IPC currently penalises as sedition.
Senior advocate Sidharth Luthra said that though there has been a tweaking of the provision of the erstwhile 124A, the question arises whether there is a need of a sedition-like law when you already have other provisions that address the issue.
“Also, the government has now also introduced terrorism offences, organised crimes and criminal activities in this. In a country like India where there is no sovereign and being a democracy where people are sovereign, the logic and rationale behind retention of the sedition provision in any form, is questionable,” he said.
Senior advocate Colin Gonsalves said that the Centre is bluffing through the statement that sedition has been repealed.
“The government is fooling the people. Exactly the same section (sedition) in slightly different words has been introduced. Sedition, under the Indian law and as per Supreme Court judgments, required very harsh words and some action showing uprising against the country. What the government has now done is that words by themselves will attract anti-national activities. So, it is even worse than the old provision,” he said.
Another key change in the proposed draft Section 150 of the bill is to remove an old provision which allowed a person convicted of sedition to get away only with a fine. Section 150 of the bill prescribes imprisonment for life or with imprisonment which may extend to seven years, in addition to fine, as punishment.
The proposed amendment indicates that the move by the government is in line with a recommendation made by the Law Commission of India in June, with the alternative punishment for the offence being sought to be enhanced to seven years in jail from the present three under the IPC; the 2023 bill also continues to have life imprisonment as the maximum punishment.
The bill has been tabled by the Centre at a time when the Supreme Court is seized of a bunch of petitions, challenging the validity of Section 124A in the IPC. The operation of Section 124A — a non-bailable offence punishable with jail term ranging up to life, and one that activists and jurists have alleged is often misused to muzzle dissent, is currently on hold due to a continuing interim order of the top court passed on May 11, 2022.
In its June report, the Law Commission recommended that the 153-year-old colonial law on sedition be retained, insisting that “repealing the legal provision can have serious adverse ramifications for the security and integrity of the country”. It favoured amending Section 124A “so as to bring about more clarity in the interpretation, understanding and usage of the provision”.
The commission said the sedition law, which carries a maximum punishment of life imprisonment or a punishment of three years, should be amended to enhance the alternative punishment to seven years, calling for giving the courts greater room to award punishment for a case of sedition in accordance with the scale and gravity of the act.
On May 11, 2022, the Supreme Court in a historic judgment 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 had 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 itself has conveyed a desire to “reconsider and re-examine” the contours and validity of Section 124A.
Two days before the top court had suspended the operation of the sedition law, the Union government had filed an affidavit stating that it was willing to review the sedition law but urged the court to pause the ongoing judicial scrutiny of the penal provision.
On May 1, attorney general (AG) R Venkataramani informed a bench, headed by Chief Justice of India Dhananjaya Y Chandrachud, that the legislative process of reviewing the law on sedition is in the “final stages”, adding “the government is keen on pushing reforms”. The top law officer at the time submitted that the government has set up a committee to review Section 124A in the IPC and that the deliberation with the stakeholders was on.
Recording AG’s statement, the bench then posted the matter for a hearing in the second week of August, when, it said, the court may also consider a larger bench for determination of the validity of the sedition law since a five-judge bench had in 1962 upheld the legality of Section 124A.
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