As criminalisation of speech and expression is common to both sedition and UAPA, reform of both is imperative, says Constitutional Conduct Group

CCG, in a statement, has said that the Supreme Court's May 11 interim order, keeping ongoing cases under Section 124A of the Indian Penal Code dealing with sedition in abeyance, deserves only a muted cheer.  The CCG suggested that the Union Government's readiness to review the provision is aimed at depriving the opposition-ruled states from invoking the provision against the ruling party activists, while retaining its liberty to misuse the UAPA against its opponents. 

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The Constitutional Conduct Group,  a non-partisan group of former civil servants, has said that over the years, slowly and surreptitiously, the substance of the offence of sedition has been "snuck" into the Unlawful Activities (Prevention) Act, 1967 (UAPA), defined more elaborately, and with more draconian consequences, than in Section 124A, Indian Penal Code.

In a statement released on June 12, the CCG has said that the armoury of arbitrary weapons used to suppress dissent and opposition and control the free formation of public opinion has expanded over the years to include a number of offences similar to those under Section 124A.

Prominent amongst these offences are Section 153A of the IPC (promoting enmity between different groups on ground of religion, race, place of birth, etc.), Section 153B (imputations, assertions prejudicial to national integration), Section 505 (statements conducive to public mischief) and Section 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 in the case of Section 124A, the CCG's statement pointed out.

Contending that section 124A of the IPC is certainly a strange provision to have in a democracy, the CCG pointed out that it criminalizes the feelings of dislike, contempt and disaffection towards "the government established by law in India", even where such feelings are not linked to any violent, illegal or criminal act.

"Disaffection and contempt for the government of the day are feelings through which democratic republics are born.  Such feelings are considered criminal only in autocracies. Where the government of the day can be, and is, changed through the electoral process, it can surely not be a criminal offence for any citizen to merely harbour and express feelings of disaffection, etc. towards the government", the statement read.

The CCG quoted Mahatma Gandhi as having said: "Affection cannot be manufactured or regulated by law. If one has no affection for a person or system, one should be free to give the fullest expression to his disaffection, so long as he does not contemplate, promote, or incite to violence." Yet this disaffection is what Section 124A treats as criminal, the CCG added.

According to the CCG, the only way that the citizen's right to freedom of speech and expression can be protected is if the Supreme Court examines Article 19 under the "basic structure of the Constitution" principle with reference to all existing laws and provisions that put curbs on this freedom.

"Significantly, no political party is blameless in this regard and governments of all political complexions have been trampling upon human rights and the freedom of expression", the CCG's statement lamented.

Section 13(1) of the UAPA states 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.

"Unlawful activity" as defined under Section 2(1)(o)(iii) of the UAPA is very similar to the definition of sedition contained in Sec 124A IPC, the CCG emphasised in its statement.

If Section 124A of the IPC is held by the court to be unconstitutional, because speech and expression that merely create disaffection are protected (and not prohibited) under Article 19(1), Section 2(1)(o)(iii) of the UAPA will also need to be amended to delete elements imported from Section 124A, viz. the criminalization of speech and expression which is not an integral part of any violent, illegal, criminal act. Deletion of one, while retaining the other, would be irrational, the CCG explained in its statement.

According to sources, CCG's statement, independently and after due consideration, accepts Professor Mohan Gopal's views on the subject, as reflected in his recent article in The Leaflet, 'The government's gambit to save sedition', published on May 24.

Also read: By asking the Supreme Court to wait the outcome of its review of colonial laws, the Union is stalling judicial review of sedition as an offence

Both Professor Gopal and the CCG are of the view that deleting Section 124A from the IPC, while retaining criminalization of "unlawful activities" under the UAPA, will give substantial political advantage to the union government and the party in power at the national level. Currently, state governments are free to prosecute persons for offences under the IPC, including for sedition under Section 124A.  No permission of the union government is required.

States ruled by political parties other than that at the national level sometimes use Section 124A to prosecute supporters of the national ruling party for sedition.

Recently, the Maharashtra government sought to prosecute Navneet Rana and Ravi Rana, MP and MLA respectively for sedition merely on the ground that they threatened to recite Hanuman Chalisa in front of the residence of the state Chief Minister.  A special court, on May 6, however, found that sedition was inapplicable in this case as neither of them called anyone to bear arms nor any violence was incited in general as a result of their speech.

The CCG stressed that the ruling party at the union level is powerless to prevent such prosecution. The UAPA, on the other hand, vests no powers with the state governments. It 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 the IPC will mean that the power to prosecute those who promote unfavourable opinions against the government will rest solely with the union government.

Also read: Sedition under challenge: Supreme Court directs pending cases under Section 124A IPC to be kept in abeyance

"This provides a major incentive for the union government to delete Section 124A under the pretext of protecting human rights while in reality strengthening its ability to suppress liberty in an even more draconian manner", CCG's statement suggested.

Given that no democracy can exist without freedom of speech and expression, including the right to promote opinions unfavourable to the government, the Supreme Court should use this opportunity to declare an overarching 'basic structure principle' of the Constitution protecting freedom of speech and expression including the reasonable restrictions mentioned in Article 19(2), so that government interference with individual freedom of speech and expression can be prevented, the CCG submitted.

In doing so, the Court should hew to the principle that any permissible restriction on speech and expression must be only against speech or expression that is likely to result in imminent violence or restricts the freedom of speech and expression of others, the CCG further suggested.

The statement, signed by 108 former civil servants, carries a lot of respect and influence within the civil society, as it has no affiliation with any political party, and its members believe in impartiality, neutrality and commitment to the Constitution of India.

Click here to view the complete statement, along with the list of signatories.