Guest Column

The Sedition Law: Landmark order

Print edition : June 03, 2022

At a protest against the arrest of Disha Ravi, a 22-year-old climate activist charged under the sediton law, in Kolkata on February 23, 2021. Photo: REUTERS

Father Stan Swamy, a civil rights activist accused of sedition who died on July 5, 2021. Photo: PTI

The recent Supreme Court directive that puts on hold Section 124 A of the IPC offers a ray of hope despite its weak wording. It acknowledges that the law is a colonial vestige and indicates the highest court’s disagreement with it. Activists must now press on to ensure that this oft misused law fades into oblivion.

The recent order of the Supreme Court in a case filed by Major General S.G. Vombatkere (retd) as well as the People’s Union of Civil Liberties (PUCL) and a range of other petitioners challenging the constitutional validity of Section 124A of the Indian Penal Code (IPC) has come as a ray of hope that the issue of sedition will cease to be on the statute books.

In the operative part of the order, the apex court expressed the “hope” and “expectation” that the “Centre and State governments will refrain from registering any FIR [first information report], continuing investigation, or taking coercive steps under Section 124A of the IPC when it is under reconsideration. It will be appropriate not to use this provision of law till further re-examination is over.” Further, the court has held that those already booked under Section 124A and are in jail can approach the courts concerned for bail. It has also been ruled that if any fresh case is registered, appropriate parties are at liberty to approach the courts for appropriate relief and the courts are requested to examine it.

How does one interpret this order of the Supreme Court? The language in which the interim relief has been granted is vague, structured as it is around hope and expectation. There is no mandatory directive to ensure that there is no misuse. All we are left with is to ‘hope’ that the Central and State governments will refrain from filing FIRs under Section 124 A after the Supreme Court’s order.

One also ‘hopes’ that those arrested are released on bail forthwith without having to suffer unnecessary incarceration in the light of this important Supreme Court order.

Also read: Colonial relic

Weak as the language of the order is, it is still an important step forward. The question to ask is: how did we get to this vital acknowledgement that the sedition law is a colonial vestige that is subject to misuse and that citizens need relief from such misuse? Most vitally, the spirit of the order is quite clear. The Supreme Court is not in favour of the use of the law. We can trace the history behind this order back to the campaign against the sedition law. The first effective salvo fired against the sedition law was an eloquent statement by Mahatma Gandhi, when he called it the “prince among the political sections of the IPC designed to supress the liberty of the citizen”.

History of opposition

Post-Independence, one of the most effective campaigns against the law was launched when Binayak Sen, national vice-president of the PUCL was arrested and convicted for sedition.

In recent years there were protests and demonstrations when the law was used to target climate activists such as Disha Ravi. Media reportage of the abuse of the law over the years to target journalists, activists and ordinary citizens has contributed to building a public opinion against the law.

Also read: ‘Sedition’ in freedom struggle

When the petition filed by Vombatkere came up for hearing, it seemed that the Supreme Court too was cognizant of the colonial nature of the law as well as its abuse. During the hearing, Chief Justice N.V. Ramana asked the Attorney General whether the law was still needed 75 years after Independence. He also observed that the “colonial law” was used by the “British to suppress freedoms and used against Mahatma Gandhi and Bal Gangadhar Tilak”.

Central response

The initial response by the Central government to the court’s order was not encouraging. Tushar Mehta, the Solicitor General of India who represents the Union of India, took the position in the Supreme Court that there was no need to re-examine the constitutionality of Section 124 A. K.K. Venugopal, the Attorney General, took a slightly different position; he submitted that there was no need to scrap Section 124 A but that the court could frame guidelines to prevent its misuse.

However, the Union of India made a surprising volte face. It filed an affidavit which, while asserting the need for a “penal provision” to “deal with offences of a divisive nature”, also acknowledged that there were concerns about its “abuse” for “purposes not intended by law”. The affidavit then cited the Prime Minister Narendra Modi’s “belief that when the country is marking ‘Azadi Ka Amrit Mahotsav’, there is a need to shed colonial baggage”.

Also read: How a Supreme Court judgment brought back the sedition law in India

The affidavit also stated the “clear and unequivocal views of the Prime Minister”, which were in “favour of the protection of civil liberties”.

This progressive rhetoric of the affidavit gets diluted when it comes to the question of concrete relief. The government has submitted that it will “re-examine and reconsider” Section 124 A of the IPC before “the competent forum”. However, it has neither named the forum nor specified the timeline for re-examination.

The affidavit’s lack of specificity seems to indicate a lack of seriousness in moving towards the repeal of the law. Its vague assertions were followed by a submission that there was no need for the court to “invest time in examining the validity of Section 124 A”.

If one reads between the lines, what the Union of India is stating is that the sentiment of the Prime Minister, which is in favour of human rights and against “colonial baggage”, is guarantee enough. There is no need for the court to trouble itself….the government will decide the matter. Underlying the affidavit is a naked assertion of Executive supremacy.

Also read: The plague of sedition

The Supreme Court, however, did not seem to be satisfied with the affidavit and pressed for the provision being kept in abeyance, pending further action by the government. This finally resulted in the order of May 11. The order discomfited the Union Government as is apparent from the statements of the Law Minister asking the court to not cross the ‘laxman rekha’.

The court has not left the reform of the law to the tender mercies of the Union government but asserted its responsibility to those wrongly charged under this provision. It remains to be seen how the Union government responds to this assertion by the judiciary that it will perform its constitutional responsibility.

Human rights activists now have the responsibility to ensure that the the Supreme Court’s “hope” and “expectation” become a concrete reality and the sedition law fades into oblivion, more than 70 years after the Constitution granted the freedom of speech and expression to the citizens.

Arvind Narrain is a lawyer and writer based in Bengaluru. He is the author of India’s Undeclared Emergency: Constitutionalism and the Politics of Resistance. He is visiting faculty at the School of Policy and Governance, Azim Premji University.