New Delhi: The 22nd Law Commission of India headed by former Chief Justice of Karnataka high court Ritu Raj Awasthi has argued against repealing the controversial sedition law, instead saying it should be retained with certain changes.
Sedition is listed as Section 124A of the Indian Penal Code.
“Section 124A needs to be retained in the Indian Penal Code, though certain amendments, as suggested, may be introduced in it by incorporating the ratio decidendi of Kedar Nath Singh v. State of Bihar so as to bring about greater clarity regarding the usage of the provision,” the Law Commission’s report said, according to Bar and Bench.
The Commission has recommended that the scheme of punishment under the law should be increased. At the moment, the punished prescribed is imprisonment up to three years or a fine. The report now says this should be increased to life imprisonment or imprisonment up to seven years or a fine, LiveLaw reported.
“The 42nd Report of the Law Commission termed the punishment for Section l24Ato be very ‘odd’. It could be either imprisonment for life or imprisonment up to three years only, but nothing in between, with the minimum punishment being only fine. A comparison of the sentences as provided for the offences in Chapter VI ofthe IPC suggests that there is a glaring disparity in the punishment prescribed for Section 124A. It is, therefore, suggested that the provision be revised to bring it in consonance with the scheme of punishment provided for other offences under Chapter VI. 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,” the report said.
The Commission has also suggested changes to the phrasing of the Section, from what it is now:
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, shall be punished with imprisonment for life, to which fine may be added, or with imprisonment which may extend to three years, to which fine may be added, or with fine.
“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 word “tendency” would mean mere inclination to incite violence or cause public disorder rather than proof of actual violence or imminent threat to violence, the report stated, according to Bar and Bench.
Explaining why the Commission is not arguing for a repeal, the report said, “Repealing Section 124A of IPC on the mere basis that certain countries have done so is essentially turning a blind eye to the glaring ground realities existing in India.”
“Section I 24A 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 l24A and ensure that all such subversive activities are nipped in their incipiency,” the Commission said, according to LiveLaw.
To prevent misuse of the law, which is an allegation often raised against the authorities, the Law Commission suggested that the Union government bring in model guidelines. An FIR on sedition, it said, should be filed only after a preliminary inquiry and with the government’s permission.
In May last year, the Supreme Court had put the sedition law in abeyance. “We hope and expect Centre and State Governments will refrain from registering any FIR, continuing investigation, or taking coercive steps under Section 124 A IPC when it is under reconsideration. It will be appropriate not to use this provision of law till further reexamination is over,” the bench stated then.
The sedition law has been used regularly in India. In 2019 alone, 93 new cases were filed across the country.
In a 2018 consultation paper, the Law Commission had argued that disagreement with the government cannot be termed sedition. “Berating the country or a particular aspect of it, cannot and should not be treated as sedition. If the country is not open to positive criticism, there lies little difference between the pre- and post-independence eras. Right to criticise one’s own history and the right to offend are rights protected under free speech,” the consultation paper said.
The Law Commission added then that while it was essential to protect national integrity, it should not be misused as a tool to curb free speech. Dissent and criticism are essential ingredients of a robust public debate on policy issues as part of a vibrant democracy, it observed, and therefore, every restriction on free speech and expression must be carefully scrutinised to avoid unwarranted restrictions.