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The Law Commission of India recently recommended retaining and strengthening Section 124A of the Indian Penal Code (IPC),1860, which defines and punishes sedition. However, this recommendation has been seen by some as a regressive step as it comes nearly a year after the Supreme Court stayed the operation of the law in May 2022, expressing reservations and indicating a willingness to hear arguments regarding the potential striking down of this colonial-era law, which has often been criticized for its misuse by governments to cramp citizens’ freedom of speech and expression.
The Commission broadly recommended three things: First, widening the scope of sedition; Second, adding a higher quantum of punishment, and third, incorporating ‘procedural safeguards’ to prevent misuse.
What is Sedition under Section 124A in the IPC?
As per Section 124A of the Indian Penal Code, 1860, sedition is when a person brings or attempts to bring hatred or contempt, or which excites disaffection or attempts to do so towards the government of India by way of words (written or spoken), signs, visual representation, or any act.
As per section 124A, sedition is a non-bailable offence, punishable with imprisonment from three years up to life, along with a fine. The person charged under this law is also barred from a government job and their passport is seized by the government.
The concept of sedition in India was introduced by Thomas Macaulay, a British historian-politician, in 1837. Included in the Section 124A of the IPC in 1870, it was imposed by the British Colonial government to primarily suppress the writings and speeches of prominent Indian freedom fighters including Lokmanya Tilak, Mahatma Gandhi, and Jogendra Chandra Bose among others. The section of sedition was followed word for word and many were convicted for invoking ill-will against the government even if there was no violence followed.
The scenario changed when the Federal Court, in the case of Niharendu Dutt Majumdar vs. King Emperor (1942), interpreted sedition as an offence only when it incites public disorder or violence. But, in the case of King Emperor vs. Sadashiv Narayan Bhalerao (1947), the Privy Council in Britain rejected the Federal Court’s interpretation and held that the application of sedition does not require incitement to public disorder or violence. This interpretation was followed in practice till the reign of the Britishers in India.
Sedition in Post-Independence India: Key Judgements
Tara Singh Gopi Chand vs. The State (1951)
This was the first case challenging the constitutionality of sedition in independent India. Giving reference to the Ramesh Thapar case’s mention of sedition, the High Court accepted the Federal Court’s interpretation of sedition where incitement to violence or public disorder was necessary. The judgment held that sedition restricts freedom of speech and expression.
The Supreme Court of India took up the case of constitutionality for the first time in this case. The Court, contrary to the judgments by the high courts, held sedition to be constitutional.
But, the Court made an essential addition to the law of sedition. Following the Federal Court’s interpretation in 1942, it held that the sedition can only be valid if it intends to incite violence.
Even the exceptions to the offence of sedition would be applicable only if they didn’t lead to public disorder by violence.
The Court also published guidelines to be followed in the application of Section 124A.
Common Cause v. Union of India (2016)
The writ petition filed by the Common Cause NGO was disposed of by the bench headed by the Chief Justice of India. The court stated that the principles of Kedarnath were to be followed by the authorities. The court found no need to revisit the issue.
The Supreme Court of India has agreed to hear the matter of the constitutionality of sedition. The central government is currently in the process of re-examining the matter. The matter is currently on hold till the re-examination is completed. The court also stated that sedition is put on abeyance till the re-examination.
Why Section 124A needs to be scrapped
In present times, it is often used to break political voices by slapping the section of sedition on the activists as well as civil societies. It can be used by the government as a tool for politics and to curb healthy dissent.
The guidelines set by the Kedarnath case are very subjective and confusing and hence, not usually followed.
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. Further, there are laws against the activities threatening India’s unity, integrity and security such as the Unlawful Activities (Prevention) Act, 1967 and National Security Act, 1980.
It is also interesting to note that the United Kingdom, which is the basis of Indian law, has done away with sedition while India has not.
Why Section 124A needs to be retained
Threats to India’s internal security, including Maoist extremism, militancy and ethnic conflict in the north-east, terrorism in Jammu and Kashmir and secessionist activities in other parts of the country, like Punjab, necessitate retaining the law on sedition.
It is evident that even in some of the most advanced democracies around the world, mere cosmetic changes have been affected in the law of sedition, without taking away the core substance of the offence.
Also, countries like the US, the UK, etc. had their own history, geography, population, diversity, laws, etc. which are not compatible with Indian circumstances. Despite this, what some of these countries have actually done is that they have merged their sedition law with counter-terror legislation, it said.
While anti-terror legislations can be invoked for acts that threaten national security, sedition is frequently invoked to punish political speech or actions. The existence of anti-terror legislations does not by “implication cover all elements of the offence and envisaged under Section 124A of IPC.
It is often said that the offence of sedition is a colonial legacy, merely ascribing the term ‘colonial’ to a law or institution does not by itself, ascribe it to an idea of anachronism.
The citizens are the conscience keepers of the government in any democratic nation. In a democracy, dissent and criticism are important tools for citizens to hold the government accountable.
The right to freedom of speech and expression is guaranteed by the Constitution itself, and a liberal democracy needs a political setup that is tolerant enough to take fair criticism in its stride. While concerns regarding the misuse of free speech to challenge the sovereignty of the nation are justified, a middle ground needs to find out where citizens are not harassed in exercising their constitutional rights.