Context

• In its 279th report, the Law Commission of India has recommended the retention of Section 124A of the IPC, which contains the law of Sedition.
• It has also recommended enhanced punishment for this offence in the name of national security. 

Section 124A of IPC; The Sedition Law

• The IPC Section 124 A says, “Whoever, by words/signs/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.
• Disaffection includes disloyalty and all feelings of enmity.
• It is a non-bailable law that is punishable with imprisonment from three years up to life, along with a fine.
• Individuals charged under the law will be barred from a government job passport will be seized by the government.

A Background of Sedition Law in India

• 1837 – Thomas Macaulay (Famous for his Macaulay Minute on Indian Education 1835) drafted the Indian Penal Code (IPC).
• Section 124A was incorporated in the IPC in 1870.

 Sedition Cases in Pre-Independence Era

• Queen Empress v Jogendra Chunder Bose (1891): Jogendra Bose wrote an article criticizing the Age of Consent Act, 1891.His criticism was taken as disobedience towards the government.
• Sedition Trial of Bal Gangadhar Tilak (1897): He was found guilty of sedition for writing a couple of articles in Kesari, a Marathi weekly, invoking Shivaji, which was interpreted as exciting disaffection towards the British government.

 How did the British interpret the Sedition Law?

• First interpretation defines sedition as disaffection, which was interpreted as ‘political hatred of government’.
• The other interpretation means that the offence is committed only when there is incitement to violence or disorder.
• At that time the Privy Council, the highest appellate court, approved the law during the Tilak’s case.

 Post Independence Sedition Cases

• Brij Bhushan vs The State of Delhi (1950) & Romesh Thappar vs the State of Madras (1950)
  • The apex court held that a law that restricts speech on the ground that it would disturb public order was unconstitutional.
  • The decision of the court prompted the ‘First Constitution Amendment’, where Article 19 (2) was rewritten to replace “undermining the security of the State” with “in the interest of public order”.
• Balwant Singh vs State of Punjab (1962)
  • He was alleged to have shouted pro-Khalistan slogans on the day of former PM Indira Gandhi’s assassination.
  • The apex court held that unless there is public disorder, merely sloganeering can’t attract punishment under Section 124A.
• Kedarnath Singh v State of Bihar (1962)
  • The SC upheld the constitutional validity of IPC Section 124A.It is constitutionally valid as an offense against the government, is against the state. This is because government is a visible symbol of state.
  • However, the court attempted to restrict its scope for misuse. The court held that unless accompanied by an incitement or call for violence, criticism of the government cannot be labelled sedition.

Recommendations of the Law Commission

• Inclusion of Kedar Nath ruling in the sedition law provision: The words “with a tendency to incite violence or cause public disorder” should be added to the provision.
• Defining the tendency to incite violence: The definition must emphasise that proof of actual violence or imminent threat to violence is not necessary.
• Enhancing punishment
  • Currently, Section 124A of the sedition law provides for a jail term of up to three years or life imprisonment.
  • The Law Commission’s report proposes enhancing the jail term to up to seven years or life imprisonment.
• Preventing misuse of the law
  • As per the recommendation, an FIR for sedition shall not be registered unless a police officer, not below the rank of Inspector, conducts a preliminary inquiry.
  • It further proposes that based on the report submitted by the said police officer, the Central/the State Government, depending on the jurisdiction, grants permission for registering the FIR.

Rationale Behind the Retention of Sedition Law

• To safeguard the unity and integrity of India
  • The report cited threats to India’s internal security, including Maoist extremism, militancy, etc., for retaining the law on sedition.
  • It justified criminalising sedition, saying it is a reasonable restriction under Article 19(2) of the Constitution.
• Realities differ in every jurisdiction
  • Jurisdictions like the US, the UK, etc. had their own history, geography, population, diversity, laws, etc. These are not compatible with Indian circumstances.
  • Also, some of these countries have merged their sedition law with counter-terror legislation.
• Anti-terror legislations do not by cover all elements of the Section 124A: Andany expression that incites violence against the government, would invariably be tried under the special laws and counter terror legislation.
• Merely ascribing the term ‘colonial’ to a law/institution does not by itself, make it outdated/irrelevant.

Drawbacks of Law Commissions’ Recommendations

• It gives significant power to law enforcement officials, allowing them to subjectively determine whether a speech or article has the potential to incite disorder.
• The recommendation for the enhancement of punishment defies common sense when there is a universal demand for the scrapping of this law.
• The commission could not see the absurdity of a law which punishes citizens of a democratic country for making comments which may cause disaffection towards a government which they have the power to remove.

Is Sedition law Constitutionally Valid?

• Equating the government with the state is illogical in a democratic republic and that disaffection towards a government should not be criminalised.
• Words like disaffection towards the government, visible representation are vague and provide enough scope for its misuse.
• Sedition violates the fundamental right to freedom of speech and expression guaranteed under Article 19(1)(a) of the Indian Constitution.
• Therefore, the attempt to bring sedition within the framework of reasonable restriction under Article 19(2) is constitutionally impermissible.
• In 2022, the SC ordered to stay all existing proceedings and registration of fresh cases under the sedition law upon the Union Government assurance to review the law at the earliest.
  • The Court’s stay order was in consideration of the fact that this law was widely misused by the law enforcement authorities.

Conclusion: Misuse of the Sedition law can be curbed by reconsidering the law in a manner that will balance national security on one hand and freedom of citizens on the other