The government’s gambit to save sedition

Any rolling back or repeal of Section 124A of the IPC would not be motivated by liberal values, but would be to make sedition an even more powerful tool.

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THE opening gambit of the Union Government in response to a writ petition at the Supreme Court challenging the constitutionality of Section 124A (sedition) of the Indian Penal Code ('IPC') (S.G. Vombatkere versus Union of India) has taken the legal world by surprise.

A May 9, 2022 affidavit filed by the Government unexpectedly acknowledges "a divergence of views expressed in public domain by various jurists, academicians, intellectuals and citizens in general" on section 124A, and accepts that there are "concerns…about its application and abuse for the purposes not intended by law." (sic). The government announced in this affidavit that on this basis, and because of the commitment of the Prime Minister to human rights, constitutional freedoms and diversity, and to shedding the baggage of colonial laws, it "has decided to re-examine and re-consider the provision of section 124A of the Indian Penal Code".

Showing its fangs, the government doubles down in the affidavit on the "need for statutory provisions to deal with serious offences of divisive nature affecting the very sovereignty and integrity of the Country, acts leading to destabilizing the government established by law by means not authorised by law or prohibited by law." (sic). It also strongly asserts that "requiring a penal provision for such purposes is generally accepted by everyone in legitimate State interest." (sic).

Needless to say, the liberal rhetoric in the affidavit has to be discounted. The need to repeal colonial laws may be taken as a euphemism to repeal modernist and rights-based laws and replace them with ancient Hindu laws. The profession of commitment to "protection of civil liberties, respect for human rights and giving meaning to the constitutionally cherished freedoms" carries little credibility.

From its affidavit, it would appear that the union government seems to be working towards three main aims in this case.

Also read: Tracking sedition: From 1857 to the present

Attempt to stave off judicial review 

The first aim of the government appears to be to save sedition from being struck down as unconstitutional by the Supreme Court. This requires staving off judicial review in S.G. Vombatkere, given the irrefutable case against the constitutionality of sedition.

Sedition is a very valuable tool in the hands of authoritarian governments. In its essence, sedition criminalizes mere promotion of ideas and emotions deemed by the ruler to be unfavourable to itself. No consequence of such promotion (such as illegal speech or physical acts by the recipient of proselytized thoughts) is required to complete the crime. Sedition is a 'public opinion control law' — it seeks to arrest the free flow of thoughts, ideas and emotions amongst people that create public opinion. It provides rulers a powerful weapon to stay in power by controlling the content of public opinion. Section 124A specifically targets the creation of one or more of three sets of feelings (emotions) most dangerous for any government — hatred, contempt and disaffection towards the government of the day.

The government's strong fear of judicial review in this case is laid bare by a most inappropriate admonition in its May 9, 2022 affidavit asking the Supreme Court of India "not to invest time in examining the [constitutional] validity of Section 124A once again" and "to await the exercise of reconsideration to be undertaken by the Government of India."

To block judicial review in S.G. Vombatkere, the affidavit creates an alternative path — reconsideration, review, reform and revision of section 124A. The affidavit reiterates twice that this reconsideration will be carried out outside the judicial system — "before the Competent Forum"; in "an appropriate forum where such reconsideration is constitutionally" (sic — the last words are missing in the Supreme Court's interim order). In effect, the union government seeks to transfer the review of section 124A from a judicial forum to the executive and legislative branches, which are today de facto controlled by the same ruling party.

Contrary to the government's view in the affidavit, there is an urgent and compelling need for the judicial review of the validity of section 124A. Section 124A is plainly unconstitutional — speech that merely promotes ideas and emotions cannot be restricted within any of the permitted grounds for restriction of speech in Article 19(2) of the Constitution. An unconstitutional law cannot be reformed and retained. It must be struck down.

Also read: Why the Supreme Court must declare Sedition Law unconstitutional

The crucial importance of public opinion in a democracy is widely accepted. Democracy cannot exist without free and independent public opinion. In turn, free and unconstrained public discourse is a pre-requisite for free and independent public opinion. The crime of sedition seeks to strangulate conversations that are the well spring of public opinion; the life-blood of democracy.

Kedar Nath Singh was wrongly decided by a five-judge Constitution bench of the Supreme Court in 1962. It requires reconsideration by a seven-judge Constitution bench. Kedar Nath Singh wrongly linked liability for sedition to speech or expression "involving incitement to violence or intention or tendency to create public disorder or cause disturbance of public peace" whereas no such link exists in the plain language of the provision or in the long history of its implementation. While it purported to "read down" sedition, what Kedar Nath Singh really did was create a new crime of incitement to violence, public disorder and disturbance of public peace — which it had no power to do.

The issue whether the First (1951) and Sixteenth (1963) Amendments of the Constitution that amended Article 19(2) to broaden the scope for restrictions on freedom of speech and expression under Article 19(1)(a) violate the basic structure of the Constitution also needs to be considered by the Supreme Court, because Article 19(2) is the basis on which section 124A stands. Nor has Kedar Nath Singh adequately addressed the crucial contention that section 124A is "void for vagueness" — its ingredients (such as hatred, contempt and disaffection) are irreparably vague: creating, or attempting to create, a set of undefinable feelings in an undefined set of people.

Also read: Revisiting the Free Speech Debates in the First Amendment to the Indian Constitution

Projecting a liberal image of the current dispensation

The second aim of the government emerging from its affidavit seems to be to project a liberal image of the Prime Minister and the government by rolling back or repealing section 124A, independent of the judiciary — doing "what [former Prime Minister Jawaharlal] Nehru could not do". This could be turned into a much needed counter to the strong global notoriety of the current regime as authoritarian and anti-democratic.

The fact is, however, that any rolling back or repeal of section 124A would not be motivated by liberal values. It would be to fulfil the third aim of the government — to make sedition an even more powerful tool.

Also read: Is there a blurring of distinction between the prime minister and the union government?

This they would do by enforcing sedition through the Unlawful Activities (Prevention) Act, 1967 ('UAPA') under a new name. This has been facilitated by the United Progressive Alliance-led union government sneaking the essence of the offence of sedition into the UAPA — which arms it with even more draconian and lethal powers than it had when housed in the IPC as section 124A. UAPA's Section 2(o)(iii) defines "unlawful activity", in relation to an individual or association, inter alia as follows (common elements with section 124A are in bold):

"[A]ny action taken by such individual or association (whether by committing an act or by words, either spoken or written, or by signs or by visible representation or otherwise) … (iii) which causes or is intended to cause disaffection against India."

"India" in this context is a very broad term that could quite easily be interpreted to include the government of the day as well as the Indian State. One can only hope that it will not be interpreted by unbounded judicial creativity to include ideas of India (such as "Bharat Mata") because, for example, the Constitution says "India that is Bharat".

Section 13 of UAPA provides that "Whoever: (a) takes part in or commits, or (b) advocates, abets, advises or incites the commission of, any unlawful activity" shall be punishable with imprisonment for a term which may extend to seven years. UAPA's Section 2(o)(iii) in effect changes the name of the same offence from sedition to "unlawful activity".

Also read: UAPA and sedition law being used to stifle dissent; must be repealed, say former judges

There is an important political advantage to the national ruling party in repealing section 124A of the IPC and keeping sedition as an unlawful activity under section 2(o)(iii) of the UAPA. Currently, state governments are free to prosecute persons for sedition under section 124A. No permission of the union government is required for this. As a result, states not ruled by the national ruling party use section 124A to prosecute supporters of the national ruling party. The ruling party at the Centre is helpless to prevent such prosecution.

Section 45 of UAPA provides that no court shall take cognizance of any offence of unlawful activity without the previous sanction of the Central Government. Deleting section 124A of IPC will therefore, in effect, give the national ruling party a monopoly over prosecution for sedition across the country. Therefore, once section 124A is deleted from IPC and sedition is prosecutable only under section 13 of UAPA in its new garb, opposition-ruled state governments will not be able to prosecute supporters of the national ruling party for sedition without the previous sanction of the union government, while the national ruling party will be free to prosecute anyone it wishes in any state under UAPA. This provides a major incentive for the union government to delete Section 124A under the false pretext of protecting human rights while in reality strengthening its ability to use the weapon of sedition to suppress liberty in an even more draconian manner.

Sections 2(o)(iii) of UAPA must be struck down as an unconstitutional restraint on freedom of speech and expression. If not, the mere repeal or rolling back of section 124A of IPC would be a hollow victory with no impact on its threat to democracy.

Why Supreme Court's interim order must be seen with caution

The Supreme Court issued an interim order on May 11, 2022 temporarily staving off judicial review and opening the door to the alternative of review and reform outside the judicial system. Notwithstanding the ambiguity of the language used by the Supreme Court in this regard, the interim order should be welcomed to the extent that it actually results in prompt and concrete relief, even if temporary, against arrest, investigation or under-trial detention under the archaic and anti-democratic, colonial-era sedition provision.

The order that "all pending trials, appeals and proceedings with respect to the charge framed under Section 124A of IPC be kept in abeyance" (sic) raises concern. It should not be applied in such a manner as to prejudice any accused person who wishes that their trial should not be placed in abeyance and that it should be continued and brought to an early conclusion so that they may be freed from the debilitating shadow of the accusation of sedition.

It is also a matter of concern that the Supreme Court has endorsed the decision of the union government to "issue a directive to the State Governments/Union Territories to prevent any misuse of Section 124A of IPC", ignoring the federal structure of the Constitution.

Also read: Sedition case in Supreme Court: Government may have gained time, but its options are limited

It is also essential to safeguard democracy against other provisions of IPC which are being used to control free speech and expression including, for example, Sections 153A (promoting enmity between different groups on ground of religion, race, place of birth, residence, language and doing acts prejudicial to maintenance of harmony), 153B (imputations, assertions prejudicial to national integration), 505 (statements conducive to public mischief), and 505(2) (statements creating or promoting enmity, hatred or ill-will between classes). These provisions are today widely and routinely misused by the police and their political masters with the same objective as section 124A.

The current petitions in S.G. Vombatkere may need to be broadened or new petitions filed to address issues of constitutionality under Article 19(1)(a) and (2) of the Constitution, of UAPA and other IPC restrictions on speech and expression. What is urgently required is the constitution of a seven-judge bench to conduct a judicial review of section 124A as well as these other laws that criminalize mere speech and expression.