The 22nd Law Commission has recommended that Section 124 A of the Indian Penal Code (IPC) dealing with the offence of sedition be retained and that the minimum jail term for the offence be enhanced from three years to seven years. This could clearly be a device to serve the interest of the Centre, which might want its retention for political reasons rather than administrative exigencies.
The Chairman of the Commission, Justice Ritu Raj Awasthi, in his covering letter to the Union Minister for Law, takes note of the pending proceedings in S.G. Vombatkere vs Union of India before the Supreme Court, challenging the very validity of the provision. The Supreme Court, in an unprecedented move, via its order dated May 11, 2022, forbade the use of the impugned provision and the use of coercive measures based on it.
An affidavit filed by the Centre before the Court said that the Prime Minister was of the opinion that “we need to, as a nation, work even harder to shed colonial baggage that has passed its utility, which includes outdated colonial laws and practices”.
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The affidavit further said that the government “has decided to re-examine and re-consider the provision of Section 124A of the IPC”.
The Court also said that the government agreed with the “prima facie opinion” of the Court that the provision was outdated. While the Court practically suspended the provision, the Law Commission has now come up with a revivalist posture and openly supported the colonial provision.
The Law Commission’s report is neither well researched nor balanced. On the contrary, it is partisan and can have a devastating impact on the very idea of human rights in India.
When the Supreme Court is seriously considering the question of whether the judgment in Kedar Nath Singh vs State of Bihar (1962), which upheld the provision, requires to be revisited, the Commission had a duty to be more responsible and up to date.
The report does not deal with many recent judgments and international treaties on freedom of speech and the right to dissent. Neither the judgment in Shreya Singhal (2015), which struck down Section 66A of the Information Technology Act, nor the Constitution Bench judgment in Kaushal Kishor (2023), dealing with free speech rights of public functionaries, finds a place in the report.
According to the Law Commission, the threats to India’s internal security are real whereas the misuse of Section 124A is only alleged. This view is not only unrealistic but distorted. The fact is that the Supreme Court has been appraised of the long saga of the law’s misuse with illustrative instances. In fact, the journalist Sashi Kumar has listed persons who were booked under the anti-sedition provision, such as Disha Ravi, an activist, the journalist Vinod Dua, the filmmaker Aisha Sultana, Amulya Leona, a student, and so on. The law was ruthlessly used to book activists during the anti-CAA protest and in the agitation against the now-repealed farm laws.
The Commission’s recommendation, if accepted, will make the law even harsher. The report, in the guise of “removal of oddity in punishment”, calls for enhancing the minimum term of imprisonment for the offence.
Curiously, the Commission has no problem with the text of the law, which is vague and abstract, with inherent potential to trap the innocent. As a result, if these recommendations are accepted, Section 124A will remain draconian by penalising “disaffection” with the government, which would include “disloyalty”. This would mean that any opposition to the government could be labelled seditious, as during the inception of the law in 1870.
Safeguards and misuse of law
The ‘safeguards’ now prescribed cannot curtail the law’s misuse. The suggested clause for previous permission by the government for registration of an FIR based on a preliminary enquiry report by an Inspector of Police is vulnerable to political pressure.
Citing “incitement to violence or public disorder” as a condition for invoking the provision as suggested by the Commission also will not prevent the misuse of the provision. This legal position was clarified by the Supreme Court back in 1962 in the Kedar Nath Singh case. Yet, the continued misuse of the provision has remained an Indian reality.
Even with such clauses, it is for the political executive and the police officers who act under them to decide whether an act involved any such incitement. The term public disorder is overbroad and elastic.
More significantly, the report does not consider the fact that there are provisions right in the IPC dealing with offences against the State. They include Sections 121,121A, 122 and 123, all of which deal with the offence of waging war against the government or related activities.
The report distinguishes between the text of the Unlawful Activities (Prevention) Act (UAPA) and Section 124A of the IPC to say that the latter is necessary despite the existence of the former. The cardinal point is that the above stated provisions in the IPC literally and practically take in any serious attempt to sabotage the elected government, which in turn would meet the genuine requirements of the state. The Report does not deal with this aspect at all.
The report also states that the “special laws and anti-terror legislations dealing with national security…seek to prevent or punish the commission of offences targeted towards the state” while Section 124A of the IPC seeks to prevent the “violent, illegal and unconstitutional overthrow of a democratically elected government established by law”.
The components of the law on sedition as stated by the Commission are clearly different from the text of section 124A. Such ingredients are traceable in the other IPC provisions, as aforesaid. This part of the report is casual, to say the least.
The report also says that from 2000 onwards the UK passed numerous enactments to deal with terrorism, and this could be why the UK has done away with the provision. But when it comes to India, it says that the provisions of the UAPA are inadequate to address seditious activities. This reasoning is hardly convincing.
An illiberal regime alone will find the tone and tenor of the report satisfying. When the Commission says that in the absence of Section 124A, special legislation against terrorism is likely to be invoked against accused parties, it does not fulfil Constitutional aspirations. To imply that the sedition law is a concession for not invoking more draconian laws like the UAPA does not sound good. Ideally, the law panel should have been more concerned about the rampant misuse of all oppressive laws.
There are also instances of strange comparisons in the document. For endorsing the law’s legitimacy, the Commission compares the colonial law with the police force and the idea of civil services in India, which were established by the British. The logic seems to be that anything colonial need not be unacceptable.
First, the colonial provision is challenged based on its long history of misuse invoking its abstract vocabulary and its illegitimacy as a pre-constitutional device. Second, the police and the civil services were drastically reformed later, in accordance with a modern democratic ethos, whereas the provision on sedition remained archaic in content and undemocratic in practice.
It is well known that after the First Amendment of the US Constitution, the scale of free speech in the US is relatively high. In the seminal judgment of the US Supreme Court in Texas vs Johnson (1989), it was held that even an act of burning the national flag would be protected as an instance of freedom of expression. Justice Anthony Kennedy famously said that “the flag protects those who hold it in contempt”.
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Yet, the Law Commission’s report, instead of referring to such a later judgment of the top court of the US, reiterates the principle laid down in the case of Earnest Starr (1918), who was convicted under Montana’s sedition law for the contemptuous language and slurs he allegedly used against the flag.
Earnest Starr was sentenced to 10-20 years of hard labour. It is clear that with the subsequent pronouncement in Texas vs Johnson by the superior court, what is laid down in Earnest Starr is no longer a good law. It is strange that the Law Commission has chosen to quote an outdated judgment from the US while trying to endorse a colonial provision.
One expects the Law Commission to take positions in the larger interests of the country and to persuade the government to follow constitutional principles in the process of making and unmaking laws. The present report does not do that. It does the opposite.
Kaleeswaram Raj is a lawyer in the Supreme Court of India.