A little over a year ago, the Supreme Court boldly put a hold on the operation of Section 124A of the Indian Penal Code, which deals with sedition. Observing that the government itself in its counter-affidavit agreed that the statute on sedition is outdated and “not in tune with the current social milieu”, the apex court allowed the government to reconsider the law in that context. Noting that the law predates the Constitution and seeing its widespread misuse, the SC swiftly froze any further use of the provision until it was reexamined. Sedition derives from the imperial era, in which the Crown was supreme and criticism had to be thwarted before it spread amongst the masses, to prevent civil war or usurpation. It was a convenient device used to quell any dissent which could spiral into widespread unrest.While the British, who created the law, chose to abolish it in 2009 on the ground that it militates against free speech, one wonders why in 2023, India’s Law Commission should seek to retain it in spite of last year’s Supreme Court order, in which the government agreed in principle that the law was outdated.The Commission has oddly relied upon the Supreme Court’s earlier decision in Kedar Nath’s case in 1962, which upheld the sedition law while seeking to somewhat balance it with free speech, and said that mere criticism of the government need not be construed as sedition.Also read: The Law Commission’s Report on Sedition Misunderstands What the Courts SaidTo make matters worse, the Law Commission has gone ahead to recommend even stiffer sentences under the law.In 1962, the Supreme Court upheld the validity of Section 124A IPC in Kedar Nath and thus kept the concept of sedition alive. In 1962, India had been independent for only 15 years and was still finding its feet, figuring out how to deal with some princely states and various corners of the republic which hinted at seeking independence. While the dispensation in 1962 may have found it necessary to retain the law, that judgement itself is today of 61-year vintage. In Kedar Nath, the court relied upon the English interpretation of how to judge whether there was an act of incitement ― whether there was a “tendency to incite”, and did not follow the US courts’ interpretation based on “imminent danger”.Today, 61 years after Kedar Nath, the Law Commission has given a recommendation that hardly addresses misuse of the law, because the power to commence sedition proceedings is again with the government, and no protection is offered to the political opposition and those holding differing views from being persecuted by the government. It is also important to note that the Kedar Nath judgement predated much of constitutional reform, significantly the wide interpretations given to Articles 14, 19 and 21 of the Constitution, first through Maneka Gandhi and more recently the Puttaswamy decision on privacy. The social milieu has undergone a sea change, a point that the commission has strangely chosen to overlook.Recently, the Lahore high court in Pakistan also struck down the statute of sedition in the Pakistani Penal Code, noting, as any liberal judicial forum would, that the provision “is intended to wreak revenge on a political dissenter”. The Lahore court rightly held that “disaffection” is too mild a sentiment to attract penal consequences and that any opposition or person holding views different from the reigning party shall fall within the contours of disaffection. If a country as alienated from human rights and liberalism as Pakistan is can strike down this draconian provision, surely India, a more progressive state, can do it too.What the Commission has also ignored is that the law had to be examined in today’s circumstances and current mood and way of the world. The mandate could not have been made clearer, as the Supreme Court specifically sought an examination of the statute in light of prevailing societal circumstances. The commission has sought to uphold the sedition law at a time when the Supreme Court seeking to limit its misuse. The whole exercise by the commission seems to be a misadventure since the very same government that referred to the report, through the Attorney General, has admitted before the apex court that the law is regressive, colonial and liable to be misused.Also read: Sedition Law ‘a Thorn in the Flesh for All Journalistic Ventures’: Former CJI U.U. LalitThe Commission’s preconceived bias in moulding the report to retain sedition as a concept is clear from its narrow understanding of the misuse of the provision. The instances of misuse are conveniently brushed aside as “allegations” and in contrast, the wide scope of the terms “disaffection” and “disloyalty” are given an imprimatur which perceives apprehension about threats to India’s sovereignty as apparent and real.As a concluding recommendation to ‘balance’ interests, the report seeks to incorporate the provisions of Section 196(3) of the Criminal Procedure Code (CrPC) to somehow carve out an exception to the registration of sedition cases under Section 154(1) of the CrPC. The report does not account for the myriad repercussions that may result from reading down the law and putting additional checks such as Section 196 CrPC, which would only lead to docket piling and multiplicity of litigation. The Commission further overlooks the existence of various other sections within Chapter VI of the IPC that provide penal consequences for conspiring to wage war against the nation. The apprehensions that the Commission carried were also put to the test in the first half of 2023, when instances of insurgency in Punjab were successfully curtailed without the need to invoke Section 124A.The report hardly seems to have any plausible recommendation, apart from a lazy attempt to justify retaining a provision that even the government admits is archaic and colonial. The report is a non sequitur and should be treated as such. The government should stand by its counter-affidavit filed before the Supreme Court and repeal the law in line with the admissions and concessions that were made. This would show a determination to make a clean break with our colonial past.Zeeshan Diwan is advocate on record, Supreme Court of India.This piece was first published on The India Cable – a premium newsletter from The Wire & Galileo Ideas – and has been republished here. To subscribe to The India Cable, click here.
