In a consultation paper released last year, the Law Commission said:
“In a democracy, singing from the same songbook is not a benchmark of patriotism. People should be at liberty to show their affection towards their country in their own way. For doing the same, one might indulge in constructive criticism or debates, pointing out the loopholes in the policy of the government. Expressions used in such thoughts might be harsh and unpleasant to some, but that does not render the actions to be branded seditious. 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.
“Expression of frustration over the state of affairs, for instance, calling India ‘no country for women’, or a country that is ‘racist’ for its obsession with skin colour as a marker of beauty, are critiques that do not threaten the idea of a nation. 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. Right to criticise one’s own history and the right to offend are rights protected under free speech.
“While it is essential to protect national integrity, it 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 a vibrant democracy. Therefore, every restriction on free speech and expression must be carefully scrutinised to avoid unwarranted restrictions.
“In order to study revision of section 124A further, the following issues would require consideration:
- The United Kingdom abolished sedition laws ten years back citing that the country did not want to be quoted as an example of using such draconian laws. Given the fact that the Section itself was introduced by the British to use as a tool to oppress the Indians, how far is it justified to retain Section 124A in the IPC?
- Should sedition be not redefined in a country like India, the largest democracy of the world, considering that right to free speech and expression is an essential ingredient of democracy ensured as a Fundamental Right by our Constitution?
- Will it be worthwhile to think of an option of renaming the Section with a suitable substitute for the term sedition and prescribe punishment accordingly?
- What is the extent to which the citizens of our country may enjoy the right to offend?
- At what point would the right to offend qualify as hate speech?
- How to strike a balance between Section 124A and right to freedom of speech and expression?
- In view of the fact that there are several statutes which take care of various acts which were earlier considered seditious, how far would keeping section 124A in the IPC serve any purpose?
- Given the fact that all the existing statutes cover the various offences against the individual and/or the offences against society, will reducing the rigour of Section 124A or repealing it be detrimental or beneficial to the nation?
- In a country where contempt of court invites penal action, should contempt against the government established by law not invite punishment?
- What could be the possible safeguards to ensure that Section 124A is not misused?”