Law Commission suggestions will enable misuse; scrap sedition law, urge experts

The Law Commission of India has recommended that Section 124A of IPC, which defines sedition, should be retained to safeguard the unity and integrity of the country as many threats to India’s internal security exists and wants the sentence to be extended to seven years. However, most senior lawyers believe it will encourage misuse.

The Commission, which is headed by former Karnataka High Court chief justice Ritu Raj Awasthi, recommended,” Whoever by words, either spoken or written, or by signs, or by visible representation, or otherwise, brings or attempts to bring into hatred or contempt, or excites or attempts to excite disaffection towards, the Government established by law in lndia, with a tendency to incite violence or cause public disorder shall be punished with imprisonment for life, to which fine may be added, or with imprisonment of either description for a term which may extend to seven years, to which fine may be added, or with fine.”

The report explained that the term “disaffection” would include disloyalty and all feelings of enmity and the expression “tendency” would mean “mere inclination to incite violence or cause public disorder rather than proof of actual violence or imminent threat to violence”.

Currently, the operation part of the sedition law states that it is a non-bailable offence punishable with jail term ranging from three years to life.

The Law Commission report underscores that by just stating that sedition was a colonial legacy was not valid grounds for its removal. “Merely ascribing the term 'colonial' to a law or institution does not by itself ascribe to it an idea of anachronism. What Section 124A of IPC seeks to penalise is only the pernicious tendency to incite violence or cause public disorder in the guise of exercising right to freedom of speech and expression,” reads the latest report.

Attempting to soften the court towards the sedition law, the Commission’s report argues that in the absence of a provision like Section 124A of IPC, any expression that incites violence against the Government would invariably be tried under the special laws and counter terror legislations, which contain much more stringent provisions to deal with the accused.

Slamming the government, senior advocate Sanjay Hegde said that the section must be scrapped and not re-enacted with tighter screws.

“The law of sedition in the early days of the republic comes from a time that kings had subjects to rule upon. It ill behoves a republic of citizens with fundamental rights to long endure it. In the early days of the Constitution the Supreme Court read it down to attempt to make it constitutional. The law commission now wants to read it up from even what the Supreme Court upheld. The suggested section is overbroad and capable of great misuse,” added Hegde, who specialises in constitution law.

Agreeing with Hegde was senior Supreme Court lawyer Anand Grover, who asserted that the sedition law should be scrapped and he saw no reason for it to exist. It is surprising, felt Grover, that the Law Commission has has come out with a recommendation to make it even more stringent.

Explaining it, Supreme Court lawyer and academic Shahrukh Alam said that broadening the notion of seditious speech to include 'tendencies' towards violence needs careful reflection. How do we currently understand 'disruption and disorder' in public encounters?

In encounters between citizen and state authority, the shoving-commanding policeman is never considered disruptive. Law and order issues are seen to arise only when the policeman is challenged–when the citizen heckles back, or bangs at the barricades. This current understanding of disruptive or disorderly behaviour as flowing in one direction alone–from citizens' challenges to authority, and not in flagrant disregard of due process–only cements state authority, as opposed to equality between state and citizen, or authority flowing from rule of law. It also encourages homegenisation of thought and behavior. It's actually not very democratic at all," said Alam

The 42nd Law Commission report states that, “Section 124A of IPC has its utility in combating anti-national and secessionist elements as it seeks to protect the elected government from attempts to overthrow it through violent and illegal means. The continued existence of the government established by law is an essential condition for the security and stability of the State. In this context, it becomes imperative to retain Section 124A and ensure that all such subversive activities are nipped in their incipiency.”

Even while the offence of sedition was ostensibly in abeyance, its logic was still being applied to dissenting speech. In March this year, several people were arrested for having pasted anti-Modi posters in public spaces. “Admittedly, they were not booked under section 124-A, but for offences relating to public mischief and for defacement of public property. But clearly, the logic that criminalises sedition has leaped forward and already transplanted itself into provisions of law that criminalise any form of dissent,” pointed out Alam.

Several law experts, including Alam were hoping that the constitutional courts, together with striking down the colonial offense of sedition would also begin to engage with the more insidious logic of sedition.

While terming the punishment for Section 124A to be very ‘odd’, the Law Commission report says that the current law states that the punishment could be either imprisonment for life or imprisonment up to three years only, but nothing in between, with the minimum punishment being only fine. “It is, therefore, suggested that the provision be revised to bring it in consonance with the scheme of punishment. This would allow the Courts greater room to award punishment for a case of sedition in accordance with the scale and gravity of the act committed,” stated the Law Commission.

Lawyer Soutik Banerjee highlighted that the Law Commission of India was cognizant that the provision of sedition suffered from vagueness and over-breadth in its definition, which is what made it so prone to misuse and abuse. However, adding an explanation which says that "mere inclination to incite violence shall be enough", hardly resolves the issue.

“In fact, the explanation makes it even more overbroad. What constitutes inclination? What is an inclination worth when one despite having such inclination does not act upon it?” added Banerjee.

The provision has to pass muster of non arbitrariness, proportionality and reasonableness in so far as it acts as a restriction on free speech, maintained Banerjee. “In my opinion, the proposed changes by the law commission, along with a more severe sentence, are a sorry comment on the Commission, which has missed the opportunity to look 10 years ahead by being bogged down with the politics of the 10 years behind it,” added Banerjee.

On May 11, 2022, the Supreme Court had effectively put on hold the colonial-era penal provision, until the Union government reviewed it. The union government had informed the Supreme Court on May 1, 2023, that it was reviewing the 153-year-old colonial law on sedition and that it could be presented in Parliament during the monsoon session. The latest report states that the home ministry referred the issue to the Commission in 2016.

Appearing before a bench headed by Chief Justice of India(CJI) DY Chandrachud, attorney general R Venkataramani had submitted that the court should hear it only after the government’s report was ready. Then the Supreme Court had adjourned the hearing of the case to the second week of August.