Amidst the Supreme Court’s Order granting a stay on the application of sedition provision, the Law Commission has recommended retaining the law because it is considered as a ‘traditional penal mechanism’ to address the issue of terrorism and myriad other threats to internal security. According to the Law Commission’s report, the alleged misuse of the sedition law does not warrant a call for its repeal. The commission has proposed additional procedural safeguards to curb the misuse of the law while enhancing the punishment up to seven years.
THE 22nd Law Commission of India has recommended retaining Section 124A (sedition) of the Indian Penal Code (IPC), 1860, calling it a ‘traditional penal mechanism’ for countering terrorism in India.
This recommendation comes a year and a month after the Union government, in its affidavit, had informed the Supreme Court that it had decided to re-examine and reconsider the law on sedition, calling it a “colonial baggage” that needs to be shed as it is past its utility.
The Law Commission now says that just because the law on sedition is a colonial legacy it cannot be done away with because, arguably, the entire “Indian legal system is a colonial legacy.”
Its report further notes: “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.”
Background
The Law Commission’s report no. 279, titled Usage of the Law of Sedition is pursuant to a reference made by the Ministry of Home Affairs in March 2016 to suggest amendments, if any. The Law Commission was to study the provision including its constitutionality, which was upheld in the Supreme Court’s judgment in Kedar Nath Singh versus State of Bihar (1962).
This recommendation comes a year and a month after the Union government, in its affidavit, had informed the Supreme Court that it had decided to re-examine and reconsider the law on sedition, calling it a “colonial baggage” that needs to be shed as it is past its utility.
In Kedar Nath Singh, a five-judge Constitution Bench had upheld the constitutional validity of Section 124A.
The court had held: “[S]ection [124A] makes it clear that criticism of public measures or comment on government action, however strongly worded, would be within reasonable limits and would be consistent with the fundamental right of freedom of speech and expression.
“It is only when the words, written or spoken, et cetera which have the pernicious tendency or intention of creating public disorder or disturbance of law and order that the law steps in to prevent such activities in the interest of public order. So construed, the section, in our opinion, strikes the correct balance [between] individual fundamental rights and the interest of public order.”
According to the Law Commission, certain amendments to the existing provision may be introduced by incorporating the operative part in Kedar Nath Singh. It has suggested two amendments to the existing provision.
It has added a new expression which is “with a tendency to incite violence or cause public disorder.” The expression ‘tendency’ has been defined as a “mere inclination to incite violence or cause public disorder rather than proof of actual violence or imminent threat to violence”.
The punishment for the crime of sedition can now extend up to seven years.
If the Law Commission’s recommendations are accepted, Section 124A would read as follows:
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 India, 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.
Explanation 1: The expression “disaffection” includes disloyalty and all feelings of enmity.
Explanation 2: Comments expressing disapprobation of the measure of the government with a view to obtain their alteration by lawful means, without exciting or attempting to excite hatred, contempt or disaffection, do not constitute an offence under this Section.
Explanation 3: Comments expressing disapprobation of the administrative or other action of the government without exciting or attempting to excite hatred, contempt or disaffection, do not constitute an offence under this section.
Explanation 4: The expression “tendency” means mere inclination to incite violence or cause public disorder rather than proof of actual violence or imminent threat to violence.
According to the Law Commission, the punishment has been enhanced to bring it in consonance with the scheme of punishments provided for other offences under Chapter VI (offences against the State).
Last year, on May 11, the Supreme Court, in an interim Order, granted a stay on the application of sedition law pursuant to a batch of petitions. One of the petitions was filed by Major General (Retd) S.G. Vombatkere, challenging the constitutionality of Section 124A in S.G. Vombatkere versus Union of India. Similar petitions challenging the validity of sedition law were filed by journalists Kishorechandra Wangkhemcha from Manipur and Kanhaiya Lal Shukla from Chhattisgarh.
S.G. Vombatkere, a retired army officer, in his petition, argued: “A statute criminalising expression based on unconstitutionally vague definitions of ‘disaffection towards the government’ etc. is an unreasonable restriction on the fundamental right to free expression guaranteed under Article 19(1)(a) and causes a constitutionally impermissible ‘chilling effect on speech’.” They argued that reading down Kedar Nath Singh would not be enough.
Also read: How have courts interpreted the Supreme Court’s order staying the sedition law?
On May 9, 2022, the Union government filed an affidavit, telling the Supreme Court that it is ready to re-examine and reconsider the law on sedition. This came a day before the division Bench comprising the then Chief Justice of India N.V. Ramana and Justices Surya Kant and Hima Kohli were slated to hear the issue of whether the matter for the reconsideration of Kedar Nath Singh should be referred to a larger Bench.
When the Bench heard the matter on May 11, it directed that all pending cases concerning Section 124A should be kept abeyance. It said: “In view of the above [referring to the affidavit of the Union government], it is clear that the Union of India agrees with the prima facie opinion expressed by this court that the rigours of Section 124A of IPC is not in tune with the current social milieu, and was intended for a time when this country was under the colonial regime. In light of the same, the Union of India may reconsider the aforesaid provision of law.”
The Law Commission says that just because the law on sedition is a colonial legacy it cannot be done away with because, arguably, the entire “Indian legal system is a colonial legacy.”
The Order directed the Union government and state governments to refrain from registering any first information report (FIR) or taking any coercive measures while suspending all continuing investigations related to sedition.
About the report
The Law Commission, in its report, has studied the origin of the law of sedition and the Constituent Assembly debates on sedition. It has extensively referred to the Law Commission’s 39th, 42nd and 267th reports. However, it did not refer to the 2018 consultation paper of the Law Commission, wherein the continued existence of the sedition law was questioned.
It has also referred to the jurisprudence of the US, UK and Canada.
The consultation paper proposed several questions for the Union government to consider in wanting to retain the law on sedition. One of these questions was: “Should sedition be not redefined in a country like India— the largest democracy in the world, considering that the right to free speech and expression is an essential ingredient of democracy ensured as a fundamental right by our Constitution?”
The Law Commission has suggested two amendments to the existing provision. It has added a new expression which is “with a tendency to incite violence or cause public disorder.”
After that, the judicial interpretation of Section 124A, including its constitutional validity decided in Kedar Nath Singh has been elaborated.
The Supreme Court Bench, headed by Chief Justice of India Bhuvaneshwar Prasad Sinha in Kedar Nath Singh had observed that the state’s existence would be jeopardised if the government ‘established by law’ is subverted. That is why sedition under Section 124A would be any act within the meaning of the provision which has the effect of subverting the government by bringing the government into contempt or hatred or creating disaffection against it.
Also read: Sedition Law: an imperial legacy, and a weapon of intimidation and subjugation by the regime
The court in Kedar Nath Singh had further said that the sedition law needs to be balanced with the fundamental right to free speech and expression guaranteed under Article 19(1)(a). The balance can be maintained when citizens have a right to say or write whatever they desire as long as it does not incite people to violence against the government established by law or with the intention of creating public disorder.
The Law Commission has agreed with the reasoning laid down by the court in Kedar Nath Singh and has reiterated that the restrictions Section 124A sought to impose are ‘reasonable restrictions’ under Article 19(2) of the Constitution.
The report has cited examples of “Maoist extremism led by the Communist Party of India-Maoist,” “militancy and ethnic conflict in the Northeast led by separatist militant groups and terrorist organisations like the National Socialist Liberation Force (Manipur) etc.,” and “terrorism in Jammu & Kashmir” as ongoing internal and external security threats as a reason to retain sedition law.
The Law Commission has also mentioned “secessionist activities” such as the Khalistan movement and the involvement of banned organisations like the Students Islamic Movement of India (SIMI), Jamaat-ul-Mujahideen Bangladesh, Popular Front of India, Rehab India Foundation, Campus Front of India, All India Imams Council, National Confederation of Human Rights Organisation, National Women’s Front, Junior Front, Empower India Foundation and Rehab Foundation, Kerala, Indian Mujahideen etc., in fomenting anti-national leanings within certain sections of the Indian populace and indulging in terrorist activities.
The report has cited examples of “Maoist extremism led by the Communist Party of India-Maoist,” “militancy and ethnic conflict in the Northeast led by separatist militant groups and terrorist organisations like the National Socialist Liberation Force (Manipur) etc.,” and “terrorism in Jammu & Kashmir” as ongoing internal and external security threats as a reason to retain sedition law.
Also read: A Gandhian case to repeal sedition law
The Law Commission has stated that even though India has special laws countering terrorism such as the Unlawful Activities (Prevention) Act, 1967, and the National Security Act, 1980, the existence of these laws does not render the law on sedition useless as it “seeks to prevent the violent, illegal and unconstitutional overthrow of a democratically elected government established by law”.
The jurisprudence of other countries, which is cited by the Law Commission, has been rejected by stating that the ground realities in India are different.
Regarding the misuse of the sedition provision, the Law Commission has recommended model guidelines that the Union Government can introduce. In doing so, it has stated that the leading cause for the misuse of sedition is the “erroneous” or “whimsical” interpretation of the law by police authorities.
Alternatively, the Law Commission has also suggested a provision analogous to Section 196(3) (prosecution for offences against the State and for criminal conspiracy to commit such offence) of the Code of Criminal Procedure, 1973 (CrPC), may be incorporated as a proviso to Section 154 (information in cognizable cases) of CrPC. This would provide the requisite procedural safeguard before filing an FIR under Section 124A. According to Section 196(3), a preliminary investigation is required before taking cognisance of the offence of criminal conspiracy.
The proviso suggested under Section 154 would read as follows: “Provided further that no first information report for an offence under Section 124A of the Indian Penal Code, 1860, shall be registered unless a police officer, not below the rank of inspector, conducts a preliminary inquiry and on the basis of the report made by the same police officer the Central government or the state government, as the case may be, grants permission for registering a first information report.”
This safeguard has been recommended pursuant to the observations made by the Supreme Court in the order passed in the S.G. Vombatkere case.
The court is set to resume the hearing on this matter in August.
