Sedition Law: Does it Deserve a Quite Burial?
Supreme Court Considers Constitutional Validity of Section 124A IPC: the Law of Sedition May Need to Be Put on Permanent Sedation.
The Supreme Court: Spotlight on Section 124A IPC
Earlier this week, a three-judge bench of the Supreme Court of India, led by Chief Justice Mr D.Y. Chandrachud, declined the Government of India's request to defer the hearing on the constitutional validity of Section 124A IPC, which pertains to “sedition”. The Solicitor General, speaking on behalf of the Union of India, had pleaded for adjournment, alluding to current parliamentary deliberations that could significantly alter this contentious provision within the IPC. Far from sidelining the issue, the Apex Court has triggered the next important procedural step.
The case will be formally referred by the registry to the Chief Justice, who will exercise his administrative role as the head of the roster to constitute a 5-Judge bench. This bench will assess the continued relevance and validity, in the present-day context, of the landmark Kedarnath judgement, delivered by a 5-Judge bench of the Supreme Court in 1962, that had upheld the constitutional validity of Section 124A IPC. Depending on the Bench's verdict, Section 124A could either remain intact in the statute book or necessitate the constitution of a 7-Judge Bench for a more thorough examination and a definitive ruling on this contentious provision.
Historical Context of Section 124A IPC
Enacted by the British colonial authorities in 1860, the Indian Penal Code initially did not include a section on sedition. However, in 1870, Section 124A was inserted, becoming a powerful tool to suppress the burgeoning Indian National Movement. Eminent freedom fighter Bal Gangadhar Tilak was notably convicted under this draconian provision in 1908 and sentenced to six years' imprisonment, and remained in the jail for nearly 18 months. The irony is palpable that this repressive law continues to exist in India's statute book, more than seven decades after the adoption of its democratic Constitution. Adding another dimension to the debate is the UK's House of Commons' recent decision to repeal a similar sedition law, acknowledging its outdated and repressive nature.
Kedarnath Verdict, 1962— a milestone or a millstone?
After India attained independence, its Constitution, effective from 26 January 1950, guaranteed the fundamental right to freedom of speech under Article 19, subject to "reasonable restrictions." Therefore, Section 124A of the IPC remained embedded in the statute book as part of the Indian legal landscape. The question of its constitutional validity reached a momentous climax in 1962 when a 5-Judge bench of the Supreme Court issued a conclusive verdict in the famous Kedarnath case. This landmark judgement became the law of the land, ending all ambiguity by superseding divergent rulings from various High Courts on the issue of sedition, as stipulated in this central law.
In summary, the Supreme Court unequivocally upheld the constitutional validity of Section 124A, classifying it as a "reasonable restriction" under Article 19 of the Constitution. Importantly, the Court clarified that the incitement to violence was not a necessary precondition or ingredient for invoking this contentious section
The Essence of Section 124A: A Deep Dive
What immediately captures attention in the current wording of Section 124A is its vagueness and the use of terms that are open to diverse interpretations, such as "hatred," "contempt," and "disaffection."1 This not only broadens the scope for misuse but also casts a wide net where almost any critique could potentially be labelled as sedition. Particularly noteworthy is the term "attempts," which suggests that an individual could be charged irrespective of whether their actions actually end up inciting hatred, contempt, or disaffection towards the Government. This raises serious questions about the threshold of culpability and undermines the principle of criminal law that usually requires a definitive act or outcome to impose punishment.
Another dimension worth examining is the scope of the term "Government established by law in India." This would imply not just the Central Government but also the various State Governments. This amplifies the potential reach and applicability of this section and could have a chilling effect on public discourse and federal relations.
While the law does make allowances for "disapprobation" of governmental actions, as long as it doesn’t lead to "hatred," "contempt," or "disaffection," the provision itself remains precarious. It is a tightrope walk between legitimate critique and sedition, a line that is blurry at best. Furthermore, the severe punishment prescribed, which includes a potential life sentence, underscores the gravity with which this offence is treated. Yet, this stern outlook runs counter to democratic principles that value dissent and freedom of expression.
Lastly, Explanation 1 of the section states that 'disaffection' includes 'disloyalty and all feelings of enmity.' This provokes a complex moral and legal quandary: while citizens are expected to be loyal to their Country and its Constitution, should this loyalty extend uncritically to the Government of the day? The conflation of unconditional loyalty to the nation-state with unquestioning acquiescence to its Government poses a potential risk to the democratic bedrock of our society. This sentiment is succinctly captured in a quote widely attributed to the inimitable Mark Twain: "Loyalty to the country, always. Loyalty to the government when it deserves it."
Thus, while Section 124A aims to safeguard the State against activities that could disturb public order or threaten its integrity, it does so at a heavy cost—sacrificing individual liberties and democratic dissent. This section, despite being upheld by the Supreme Court in the Kedarnath case of 1962, remains a contentious issue in modern democratic India, calling for a more nuanced and updated interpretation, in the contemporary global and domestic context.
Balancing Fundamental Rights and National Security
The tension between individual rights and collective security is hardly new, but Section 124A of the IPC exacerbates this conflict in India's democratic framework. No right-thinking individual would advocate for carte blanche freedom that allows the incitement of violence against the Government or compromises National Security. But equally, it would be inimical to a healthy democracy to permit laws, such as Section 124A, to suppress freedom of speech and personal liberty, thereby stifling the democratic ethos of the Nation.
It's critical to recognise that national integrity, the security of the state, and the preservation of public order are non-negotiable elements of a sovereign state. No citizen or non-citizen, whether residing in India or abroad, should exploit India's liberal constitution and laws to undermine these cornerstones of the Republic. For such elements, the law must come down with its full force, albeit through due process.
The Unlawful Activities (Prevention) Act (UAPA) and the National Security Act (NSA) of 1980 serve as robust legal instruments to deal with anti-national activities. The UAPA has stringent provisions, including a reverse burden of proof and the near impossibility of securing bail during trial. Similarly, the NSA allows for preventive detention for those who display a propensity to commit offences against state security or disturb public order.
Therefore, the argument for reforming or repealing Section 124A is not an argument for making the country more vulnerable. With existing laws like UAPA and NSA, the State has more than adequate tools to deal with nefarious elements. It's crucial to remember that Article 21, which assures the right to life and personal liberty, applies as much to non-citizens as it does to citizens.
In an era where information and opinions flow freely across digital platforms, the potential for abuse of laws like Section 124A, even at the local police station level, is heightened. FIRs can be registered in remote parts of the country, based on digital content, making it all the more critical to reevaluate the law's scope and implementation.
The ultimate takeaway here is that while there is a need for strong legal provisions to safeguard national integrity, it should not come at the cost of eroding the fundamental pillars of democracy, especially freedom of speech. The continued presence of an archaic, incongruously colonial-era provision in the statute book invites not only misuse but also undermines the democratic spirit that India prides itself on. Therefore, a comprehensive reappraisal of laws dealing with sedition is not just desirable, but imperative.
A Call for Proactive Legislative Action
We firmly believe that the responsibility for resolving this long-standing anomaly should rest with Parliament, the supreme legislative body designed to echo the collective will of the people. The opportunity to right this historical wrong presents itself with the introduction of the Bharatiya Nyaya Sanhita, 2023 Bill, which is already under scrutiny by the parliament’s select committee. Instead of waiting for a judicial ruling to declare Section 124A unconstitutional—a move that, while likely welcome, would carry its own sets of challenges and delays—Parliament can and should take swift, proactive action.
The legislative body has the power, and we would argue, the moral obligation, to excise this draconian law from our statute books. The very constitutional validity of this section appears repugnant in the face of a vibrant democracy like India's. To continue to allow its presence, even under the guise of national security and public order, would be to undermine the democratic principles that we, as a nation, hold dear.
That said, we acknowledge the legitimate concerns surrounding national security and public order. Thus, if new provisions are to be introduced in the proposed legislation, it would be prudent for these to be rigorously defined and tightly circumscribed, ensuring that they cannot be misused, while still providing the necessary tools for safeguarding our Republic.
In conclusion, the Parliament stands at a critical juncture, empowered to correct a longstanding legislative imbalance. We earnestly hope that parliamentary wisdom prevails in addressing this issue, for the sake of upholding the democratic values and principles that form the bedrock of our great nation.
Conclusion: Awaiting the Final Verdict and a Beacon of Hope
As the case progresses to a larger constitutional bench, the nation watches carefully, expecting a judgement that skillfully reconciles national security imperatives with inviolable democratic freedoms. While the Union of India has commendably pledged not to invoke this contentious law during its judicial scrutiny, this temporary restraint may not serve as a long-term solution. If Parliament does not enact the legislative reforms we strongly recommended in the preceding paragraph, we are set for a sequence of lengthy, drawn-out legal proceedings. These could well escalate from a five-judge to a seven-judge bench, leaving us in a cloud of uncertainty regarding the final verdict. Importantly, this expanded bench will now take into account more recent and comprehensive interpretations of other fundamental rights, such as those enshrined in Article 21, not just the narrow parameters of Article 19 (Freedom of Speech) as was the case in 1962.
Yet, even amidst such legislative and judicial complexities, a beacon of hope shines bright. Under the dynamic leadership of Prime Minister Narendra Modi—a statesman whose commitment to democratic values is now globally acknowledged—the vision of consigning this archaic law to history is not only imaginable but eminently achievable. The current government, with its impressive mandate and unequivocal international stature, has the capability to seize this historic moment and deliver a legislative masterstroke for the ages.
As the wheels of justice and governance slowly turn, it is our earnest hope that the initiative to abolish this draconian law will come from the Parliament, thereby affirming India's position as a true bastion of democracy and freedom. With Prime Minister Modi at the helm, this hope seems less like a distant dream and more like a tangible, achievable reality.
"124A. Sedition.—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 India, 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.
Explanation 1.—The expression 'disaffection' includes disloyalty and all feelings of enmity. Explanation 2.—Comments expressing disapprobation of the measures of the Government with a view to obtaining their alteration by lawful means, without exciting or attempting to excite hatred, contempt, or disaffection, do not constitute an offence under this section. Explanation 3.—Comments expressing disapprobation of the administrative or other action of the Government without exciting or attempting to excite hatred, contempt or disaffection, do not constitute an offence under this section."