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INTRODUCTION

The law of sedition has long been a subject of controversy, as governments across the spectrum, regardless of their political affiliations, have readily utilized this colonial-era legislation to suppress dissenting voices. In recent years, the application of this law has instilled a sense of fear and has had a chilling effect on freedom of expression, as journalists, activists, cartoonists, students, and even ordinary individuals have faced repercussions for daring to criticize the government.

Originating in 13th century Britain, sedition was initially devised as a means to quell the freedom of the printing press and its ability to critique the monarchy. Its purpose was to safeguard public faith in the government and prevent any potential “breach of peace” in society. Recognizing its effectiveness in controlling speech and expression, the sedition law was transplanted to India, where the landmark case of Queen Empress v Jogendra Chunder Bose[i] marked its initial application within the Indian legal framework.

Section 124A of the Indian Penal Code forms the legal provision that criminalizes acts against the state, defining sedition as “attempts to excite disaffection against the Government established by law.” However, this particular provision has faced extensive criticism for its perceived role as a tool to curtail dissent and stifle freedom of expression. In response to these concerns, numerous individuals, including veteran journalists, civil liberties organizations, and others, have filed petitions seeking the repeal of the sedition law. They allege that governments have exploited this legislation to target political opponents and critics, contending that Section 124A is antiquated and reflects colonial tendencies aimed at curtailing freedom of speech and expression.

In both the United States and the United Kingdom, the primary argument for abolishing sedition laws has centered around the protection of freedom of speech. Concerns over the potential misuse of sedition to further governmental political agendas have also contributed to the calls for its abolition. In India, the constitutionality of Section l24A of IPC was challenged before the Hon’ble Supreme Court in S.G. Vombatkere v. Union of India, (2022) 7 SCC 433. During the proceedings, the Union of India assured the Hon’ble Supreme Court that it was actively re-evaluating the provisions of Section 124A, thus suggesting that the Court need not dedicate its valuable time to the same matter. In light of this assurance, the Supreme Court had issued an order on May 11th, 2022, directing both the Central Government and all State Governments to abstain from registering any First Information Report (FIR) or implementing coercive measures with regard to Section 124A. Moreover, the Court suspended all ongoing investigations related to this provision and mandated that all pending trials, appeals, and proceedings be put on hold. Consequently, no individual could be subjected to a new sedition case until the Supreme Court had rendered its final decision regarding the constitutionality of Section 124A of the IPC.[ii]

EXAMINING THE RELEVANCE AND PROPOSALS FOR SECTION 124A OF THE INDIAN PENAL CODE

Nearly a year following the imposition of a stay on the enforcement of the sedition law by the Supreme Court, the 22nd Law Commission of India has recently presented its final report titled “Usage of the Law of Sedition.” This report holds profound significance within the realms of law and politics as it undertakes a meticulous examination of the constitutionality of Section 124A of the Indian Penal Code.

The Law Commission’s 279th report, publicly released under the title “Usage of the Law of Sedition,” presents an exhaustive study of the historical evolution and application of Section 124A, which pertains to the offense of sedition. The report delves into the ongoing relevance of this legal provision, critically scrutinizes instances of its alleged misuse, and puts forth recommendations for necessary amendments. Its comprehensive scope encompasses diverse dimensions, including historical analysis, contemporary significance, and a comparative exploration of sedition laws.

The primary focus of the report revolves around an examination of the Constituent Assembly Debates on sedition and the judicial interpretations of Section 124A in post-independence India. Notably, the report references the influential case of Kedar Nath Singh v State of Bihar[iii](1962), which validated the constitutionality of sedition. Through these insightful discussions, the report offers valuable perspectives on the legal framework governing sedition laws.

Further, rather than advocating for an outright repeal or a complete redefinition of the sedition law, the report proposes retaining the provision in the statute book with substantial enhancements in terms of its scope and severity of punishment.

THE 279^th LAW COMMISSION REPORT [iv]

The report is a direct response to a reference received by the Commission from the Ministry of Home Affairs in March 2016. This reference sought the Commission’s expertise in conducting a comprehensive study on the application of the Sedition law and proposing potential amendments to it.

Prepared under the guidance of former Chief Justice of Karnataka High Court, Ritu Raj Awasthi, the report by the 22^nd Law Commission of India presents a set of recommendations that depart from the jurisprudence established by the Supreme Court subsequent to the Kedar Nath case. These recommendations challenge the established legal principles and interpretations and introduce vague procedural guidelines that have the potential to significantly impact the application of the law.

The report puts forth arguments supporting the retention of Section 124A in the IPC on mainly five grounds.

The first ground emphasizes the importance of safeguarding the unity and integrity of India. The report highlights concerns such as extremism, ethnic conflicts, terrorism, and secessionist activities in certain parts of the country as the rationale for maintaining the sedition law. It also notes that the rise of social media has facilitated the propagation of radical thoughts against India, often influenced by adversarial foreign powers.

The second point argues that sedition is a reasonable restriction under Article 19(2) of the Indian Constitution, which delineates the limits on freedom of speech and expression. The report contends that sedition falls within the permissible restrictions, particularly with regard to matters of public order and incitement to an offense.

The third reason states that the existence of counter-terrorism legislations does not render Section 124A redundant. The report explains that laws such as the Armed Forces (Special Powers) Act, 1958, the Unlawful Activities (Prevention) Act, 1967, the National Security Act, 1980, and other similar laws do not replace the need for a distinct provision on sedition. The argument put forward is that if the sedition law were absent, individuals involved in seditious activities could potentially face prosecution under these special laws, which frequently impose stricter provisions.

The fourth reason addresses the argument that sedition is a colonial legacy and, therefore, should be repealed. The report rebuts this by highlighting that other colonial legacies, such as the Police Forces and All India Civil Services, continue to exist without facing opposition solely on the basis of their origin.

Lastly, the fifth reason acknowledges that realities differ in each jurisdiction, challenging the notion that India should follow the United Kingdom’s example of repealing sedition provisions in 2009. The report highlights that in nations where sedition laws have been invalidated, they have been replaced by alternative legislations.

The report further includes several other recommendations:

1. Clarifying the application of Section 124A by incorporating the principles established in the Kedar Nath Singh v. State of Bihar, AIR 1962 SC 955 case.
2. Proposing a new procedural safeguard to prevent potential misuse of Section 124A. This involves suggesting the inclusion of a provision similar to Section 196(3) of the Code of Criminal Procedure, 1973 (CrPC), as a proviso to Section 154 of the CrPC. An amendment may be introduced in Section 154 of CrPC by incorporating a proviso in the following manner:

“Provided further that no First Information Report for an offence 11 q/ under section 124A of the Indian Penal Code, 1860 shall be registered unless a police officer, not below the rank of Inspector, conducts a preliminary inquiry and on the basis of the report made by the said police officer the Central Government or the State Government, as the case may be, grants permission for registering a First Information Report.”

3. Advocating for an increase in the punishment for sedition to bring it in line with other offenses under Chapter VI of the IPC. The recommendation proposes life imprisonment or a maximum term of 7 years, along with the option of imposing a fine. Currently, the offense carries a maximum punishment of 3 years imprisonment or a fine.
4. The Commission has also proposed an amendment to Section 124A of the IPC, seeking to revise its current wording to:

“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.”

AN ANALYSIS – INADEQUATE JUSTIFICATION FOR THE RETENTION OF SEDITION LAW

The Law Commission’s recommendation to retain the offense of sedition in penal law, albeit with certain safeguards, contradicts the prevailing judicial and political sentiments that question the necessity of this colonial remnant. The proposed amendment to Section 124A, which closely mirrors the language of the Kedar Nath Singh case, disregards subsequent developments in public order and free speech jurisprudence. It also overlooks a Supreme Court order that effectively suspended the provision until legislative reconsideration by the central government.

The Law Commission’s suggestion to maintain the offense of sedition, accompanied by additional safeguards, not only contradicts the current judicial perspective but also appears to be a perplexing reversal from the 21st Law Commission’s earlier consultation paper that sought public input on the relevance of sedition laws in contemporary India.

In a letter accompanying the recommendations, Justice Awasthi recalls that the constitutionality of Section 124A was challenged before the Supreme Court, wherein the Union of India assured the court that it was reviewing the provision, leading the court to instruct the government and state authorities to refrain from filing FIRs or taking coercive actions related to sedition cases. However, instead of advocating for a relaxation of the stringent sedition law, the new Law Commission proposes an expansion of its scope and increased punishment for offenders. The report contains internal contradictions and fallacious logic. For example, it concludes that other countries have made only superficial changes to their sedition laws while retaining the essence of the offense. Still, it suggests that India needs a broader provision due to the inadequacy of the UAPA in addressing seditious activities. This reasoning lacks persuasiveness.

Furthermore, the report overlooks the existence of provisions in the IPC that already deal with offenses against the state, including Sections 121, 121A, 122, and 123, which address acts of war against the government. This omission undermines the report’s credibility.

Overall, the justification provided in the Law Commission’s report for retaining the sedition law is unconvincing and fails to consider alternative provisions within the IPC that address similar offenses against the state.

CONCLUSION

In conclusion, taking into account that the law predates the Constitution, its extensive misapplication, and its colonial lineage, the retention of the sedition law in India raises serious concerns about its relevance and compatibility with modern constitutional principles. Moreover, the discerning decision of the Supreme Court to temporarily halt its enforcement until a comprehensive re-evaluation underscores the acknowledgment of its capacity to suppress the cherished values of free speech and dissent.

While the British, who introduced the law, abolished it in 2009, citing its infringement on freedom of speech, it is perplexing that India’s Law Commission is advocating for its retention, disregarding the Supreme Court’s previous order and the government’s acknowledgment of its outdated nature.

The Commission’s reliance on the Kedar Nath judgment from 1962 is questionable, as it predates significant constitutional reforms and the evolving interpretations of fundamental rights. The societal context has undergone substantial changes, which the Commission oddly overlooks. Notably, the report fails to consider recent judgments and international treaties on freedom of speech and the right to dissent. It disregards significant cases such as Shreya Singhal[v] (2015), which addressed the protection of free speech rights and restrictions on fundamental rights, as well as the expansive interpretations given to Articles 14, 19, and 21 of the Constitution, in the landmark ruling of Maneka Gandhi v. Union of India[vi] and the more recent Puttaswamy[vii] decision on privacy. Furthermore, the report fails to incorporate the Constitution Bench judgment in Kaushal Kishor v. State of U.P. & Ors[viii] (2023), which specifically dealt with the free speech rights of public functionaries.

The Commission’s report lacks responsibility and fails to meet the standards set by the Supreme Court regarding reasonable restrictions on fundamental rights. There are legitimate reasons to abolish the sedition law, considering its increasing abuse and the existence of alternative laws to maintain law and order in the country. Also, the ongoing consultations for modifying the sedition law indicate a recognition of the need for reform, and it should be referred to a constitution bench for a thorough examination.

Ergo, the retention of the sedition law presents formidable obstacles to the exercise of freedom of speech and dissent. The law’s colonial legacy and its frequent misuse underscore the necessity for its abolition in favour of constitutional provisions that safeguard public order without compromising fundamental rights.