Probably, in a first in independent India’s history, a criminal law has been put on hold by the apex court when the central government decided to review its provision. The applicability of Section 124 A of the Indian Penal Code which defines and penalises sedition has been effectively stayed by the top court. A three-judge bench led by Chief Justice of India N.V. Ramana held in its order that “Union of India agrees with the prima facie opinion expressed by this court that the rigors of Section 124 A 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”.
The law on sedition, which traces its origin to the colonial era, was not part of the IPC when it was enacted in 1860. Section 124 A, drafted by Macaulay, was included in the IPC in 1870. Since its inception, the sedition law has been used to curb free speech by governments. During the colonial regime it was used by the Britishers to suppress the voice of Indians criticising the government. From Tilak to Gandhi, many icons of the Indian freedom movement had been charged with sedition. That’s why in 2021, when CJI Ramana was hearing a plea challenging the constitutional validity of the sedition law, he asked: “Is this law still needed after 75 years of Independence?”
If we attempt to examine the need of this law, we have to see the real intent behind this law and its applicability. When the constitutional validity of this law was challenged in Kedar Nath Singh case in 1962, a five-judge constitution bench upheld its constitutional validity but restricted its scope for misuse. The test was laid down – incitement to violence or having the tendency to create public disorder. It was held that any comment, however strongly worded, expressing disapprobation of actions of the government, without exciting those feelings which generate the inclination to cause public disorder by acts of violence, would not be penal. In other words, disloyalty to government established by law is not the same thing as commenting in strong terms upon the measures or acts of the government. Thus a balance between individual rights and public order was sought to be maintained.
However, there is no doubt that this law has blatantly been abused and misused by different governments. According to National Crime Records Bureau data, 399 sedition cases have been filed across the country since 2014. In recent years, this trend has only grown with 93 cases in 2019 and 73 in 2020. Out of all these cases, 559 arrests were made and only 10 people were found to be guilty. This clearly shows that most of the cases were filed to suppress the voice of criticism, dissent or settle political scores.
Now, when the Centre is set to re-examine the sedition law, there are two views with regard to this – one which supports the law and one which opposes it. Those who support it emphasise its need for fight against anti-national, secessionist and terrorist and insurgent elements. Further, this law protects the elected government from attempts to overthrow it through violence or illegal means.
The other view considers it a draconian law attacking the fundamental rights of the individual, given its vast misuse. They believe that criticism is the hallmark of a democracy and it only strengthens the national discourse. When there are provisions in the IPC that deal with public disorder and other laws like Unlawful Activities (Prevention) Act, there is no need for sedition law.
It is also pertinent to mention here that the British who brought sedition law to suppress Indians have themselves abolished it in their country while we are still carrying the baggage of this colonial legacy. Other countries like Australia and Singapore have also removed it from their statute books.
One hopes that the Centre will take into account both these views and formulate a policy or a set of guidelines which will be in consonance with democratic values enshrined in the Constitution and also strike a balance between individual liberty and security of the state.
The author is advocate-on-record, Supreme Court of India. The views expressed in this article are those of the author and do not represent the stand of this publication.
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