Author : Basu Chandola

Expert Speak India Matters
Published on May 27, 2022 Updated 26 Days ago
The undeniable misuse of the sedition law compelled the Supreme court to revisit this archaic law.
The sedition law: the past, present, and future

The recent order of the Supreme Court of India in S.G. Vombatkere vs Union of India has been monumental for the future of dissent in the country. The order has been passed in a bunch of petitions filed challenging the Constitutionality of the provision on sedition under the Indian Penal Code 1860 (“IPC”). During the hearings in the matter, the Union of India, in its affidavit, averred that it had decided to reexamine and reconsider the provisions on sedition under the IPC. It was further submitted by the Union of India that the Supreme Court may examine the constitutional validity of the law on sedition once the exercise of reconsideration has been undertaken by the government. Accordingly, the Court deemed it inappropriate to use the provisions on sedition till the reexamination by the Union of India is complete. Additionally, the Court recommended that the governments should restrain from registering any FIR, or undertaking any coercive measure in sedition cases till the matter is under consideration. The Court also ordered that all pending proceedings concerning sedition would be kept in abeyance.

The Court recommended that the governments should restrain from registering any FIR, or undertaking any coercive measure in sedition cases till the matter is under consideration.

In light of the recent order of the Supreme Court of India, this piece discusses the provisions of sedition under the IPC and the possible way forward for the law on sedition, and the future of dissent in the country.

The Past

The law on sedition is laid down in Section 124A of the IPC which states that a person will be charged with sedition if they “bring or attempt to bring into hatred or contempt, or excite or attempt to excite disaffection towards the Government established by law in India” through words, signs, or by visible representation. The provision has deep colonial roots and was included by Sir Thomas Macaulay in his draft proposition in 1837. However, the provision was missing in the IPC when enacted in 1860. The provision was later incorporated by an amendment in 1870 and was structured around the English Treason Felony Act 1848 to deal with dissenters, mutinous activities, and rebellions. Before the independence, the law was used to suppress voices of criticism and discontent amongst the Indian society, and several freedom fighters such as  Bal Gangadhar Tilak were tried under this provision.

The Indian Courts, on multiple occasions, have dealt with the interpretation of Section 124A and have laid down the conditions where a speech could be considered seditious. For instance, in Kedarnath vs the State of Bihar, the Apex Court limited sedition to “activities involving incitement to violence or intention or tendency to create public disorder or cause disturbance of public peace”. Further in Balwant Singh vs Union of India, it has been categorically stated that “every expression of criticism is not sedition, and the real intent of the speech is to be taken into consideration before beaming it as a seditious act”. Similarly, in Pankaj Butalia vs Central Board of Film Certification, the  High Court of Delhi has held that sedition has to judge keeping the intention in mind and that the speech has to be judged “holistically and fairly without giving undue weight to isolated passages”. The judiciary has, thus, over time provided guidance on what sedition is, and how not every instance of dissent or criticism amounts to sedition.

Before the independence, the law was used to suppress voices of criticism and discontent amongst the Indian society, and several freedom fighters such as  Bal Gangadhar Tilak were tried under this provision.

The Present

Multiple reports suggest that since 2010. approximately 800 sedition cases have been filed in India against more than 13,000 people. The National Crime Records Bureau’s Report “Crime in India 2020” states that there have been 70, 93, and 73 cases of sedition in 2018, 2019, and 2020 respectively. Despite the increase in sedition cases, the conviction has been consistently low. To put it in numbers, there was one conviction out of the 47 cases registered in 2014; zero convictions out of the 30 registered cases in 2015; one conviction out of 35 registered cases in 2016; one conviction out of 51 registered cases in 2017; one conviction out of 70 registered cases in 2018; and one conviction out of 93 registered cases in 2019. The low conviction rates demonstrate that Section 124A is being abused and cases are being filed despite the absence of the elements required under the section. Several artists, journalists, and dissenters have been unsuccessfully booked under the provision. For Instance, Binayak Sen, a doctor, and activist working for the Adivasis was charged with sedition on the pretext of him owning Naxal literature. Similarly, Aseem Trivedi was booked for sedition stating that he commented upon corruption and unethical bureaucracy in the country.

Several parliamentarians have also voiced their concerns about this abuse on multiple occasions. For instance, Shri Digvijaya Singh, Shri Ghulam Nabi Azad, Shri Binoy Viswam, Shri E.T Mohommed Basheer, and Shri Sanjay Raut have raised concerns about the abuse of Section 124A. Additionally, several private member bills have also sought to bring changes to sedition law.

It is also interesting to note that in 2018, the Ministry of Home Affairs (“MHA”) had written to the Ministry of Law and Justice requesting the Law Commission to study the provision. The Law Commission subsequently came up with a consultation paper on sedition in August 2018. The Law Commission recommended 10 issues to be considered while discussing the future of sedition law.

Despite these concerns and vocal opposition to misuse, the law on sedition continued to exist and cases were filed under Section 124A till very recently. However, with the Union of India’s affidavit in S.G. Vombatkere v Union of India and the order therein, Section 124A on sedition has been put in abeyance.

The Future

Several countries across the world including Ireland, Australia, Canada, Ghana, Nigeria, and Uganda have either diluted or have completely done away with laws on sedition in the recent past.  Even in the United Kingdom, which was the basis of Indian law, sedition has been abolished by the Coroners and Justice Act, 2009 claiming that the law was.

To counter these, it is essential to raise awareness about the reformed section among the citizens, the enforcement agencies, the executive, as well as the lower judiciary.

In India, several private member bills have been introduced on sedition and a majority of them suggest reform and not repeal.  While the private member bills proposed by Shri D. Raja, Shri P. Karunakaran, and Shri Elamaram Kareem recommended the removal of Section 124A of the IPC citing it to be a draconian and a colonial provision, other bills including those by Shri Shashi Tharoor, Shri Bhartruhari Mahtab, Shri Saugata Roy,  and Shri Baijayant Panda, propose reformation of the provision.

While there may be enthusiastic about the possible abolition of sedition in the country, there is a possibility of reforming the provisions of Section 124A of the IPC as has been proposed by a majority of the private member bills. Even the Law Commission in its consultation paper considers sedition essential to protect national integrity.  A few of the reforms could include:

  • Adding explanation providing that acts expressing disapprobation of the measures of the government or the administrative action of the government would not amount to sedition.
  • Adding a clarification that sedition would apply only if it directly results in incitement of violence and commission of an offence of certain punishment.
  • Adding a clarification regarding the scope of “disaffection” under this provision.
  • Adding a clarification regarding legitimate protests.
  • Adding procedural safeguards in Section 124A of the Code of Criminal Procedure or through policy guidelines.

It may be argued that despite having clear guidance in Kedarnath vs the State of Bihar, Section 124A of the IPC continues to be abused by the police and state agencies, and therefore, any reforms may not translate to the real world. It may also be argued that merely reforming the words of Section 124A, in absence of any institutional reforms, wouldn’t make any substantial changes to the status quo. To counter these, it is essential to raise awareness about the reformed section among the citizens, the enforcement agencies, the executive, as well as the lower judiciary. Along with the reform, it is essential to have advocacy measures to educate the different sections of society about the scope of this provision.

Repealing or modifying the law on sedition can positively impact the future of dissent and free speech in the country. The changes in the law will have a major standing on whether a citizen would feel safe in raising opinions contrary to the government. One can only hope that the changes introduced protect the citizens' freedom of speech and the right to dissent while keeping national and security interests in mind.

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Author

Basu Chandola

Basu Chandola

Basu Chandola is an Associate Fellow. His areas of research include competition law, interface of intellectual property rights and competition law, and tech policy. Basu has ...

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