The Law Commission of India has favoured retaining the penal provision for sedition with model guidelines to curb its misuse. It said colonial legacy is not a valid ground for its repeal as the provision was required to combat anti-national, secessionist and subversive elements.
The panel also said repealing it on the mere basis that certain countries have done so is essentially turning a blind eye to the glaring ground realities existing in India. It also asserted misuse of a provision does not warrant a call for its misuse.
In its 279th report, it said, “The Commission is of the considered view that 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 (1962) so as to bring about greater clarity regarding the usage of the provision.”
The 22nd Commission headed by former Karnataka High Court Chief Justice Ritu Raj Awasthi recommended that the scheme of punishment provided under the said section should be amended to ensure that it is brought in parity with the other offences under Chapter VI (general exception to criminal liability) of IPC.
“Moreover, cognizant of the views regarding the misuse of Section 124A, the Commission recommends that model guidelines curbing the same be issued by the Central Government. In this context, it is also alternatively suggested that a provision analogous to Section 196(3) (preliminary investigation) of the Code of Criminal Procedure, 1973 (CrPC) may be incorporated as a proviso to Section 154 of CrPC, which would provide the requisite procedural safeguard before filing of a FIR with respect to an offence under Section 124A of IPC,” it said.
The Commission, which examined the issue upon a reference made by the Union Home Ministry on March 29, 2016, sent its report to the Union Law Minister Arjun Ram Meghwal on May 24.
Batting for retention of the provision in the statute book, the Commission pointed out even in some of the most advanced democracies around the world, mere cosmetic changes have been affected in the law of sedition, without taking away the core substance of the offence.
“These comparative jurisdictions like the US, UK, etc have their own history, geography, population, diversity, laws, etc which are not comparable to Indian circumstances. Despite this, what some of these countries have actually done is that they have merged their sedition law with counter terror legislations,” it said.
With regard to oft repeated clamour that sedition was a colonial legacy, the Commission said, “However, going by that virtue, the entire framework of the Indian legal system is a colonial legacy. The police force and the idea of an All- India Civil Service are also temporal remnants of the British era.
“Merely ascribing the term ‘colonial’ to a law or institution does not by itself ascribe to it an idea of anachronism. The colonial origins of a law are by themselves normatively neutral. The mere fact that a particular legal provision is colonial in its origin does not ipso facto validate the case for its repeal,” the panel said. On the charge that the provision is being used to crush dissent, the Commission said people are at liberty to indulge in healthy and constructive criticism of their government in a democratic set-up.
“What Section 124A of IPC seeks to penalise is only the pernicious tendency to incite violence or cause public disorder in the guise of exercising right to freedom of speech and expression,” it said.
The Commission also pointed out in the absence of a provision like Section 124A of IPC, any expression that incites violence against the government would invariably be tried under the special laws and counter terror legislation, which contain much more stringent provisions to deal with the accused.
“Even though, in our considered opinion, it is imperative to lay down certain procedural guidelines for curbing any misuse of Section 124A of IPC by the law enforcement authorities, any allegation of misuse of this provision does not by implication warrant a call for its repeal,” it said.
The Commission also reasoned ever proliferating role of social media in propagating radicalisation against India and bringing the Government into hatred, many a times at the initiation and facilitation by adversarial foreign powers, all the more requires such a provision to be present in the statute.
“Section 124A 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 124 A and ensure that all such subversive activities are nipped in their incipiency,” it said.
The Commission also declared that sedition, which is essential to safeguard the unity and integrity of India, is a reasonable restriction under Article 19(2) of the Constitution on fundamental right to freedom of speech and expression under Article 19(1)(a) of the Constitution.
The Supreme Court’s Constitution bench in the Kedar Nath Singh case (1962) had held that unless the words used or the actions in question do not threaten the security of the State or of the public or lead to any sort of public disorder which is grave in nature, the act would not fall within the ambit of Section 124A of IPC.
Dealing with a batch of petitions filed by SG Vombatkere and others, the Supreme Court on May 11, 2022 directed all state governments and the Central government to keep all pending trials, appeals and proceedings arising out of a charge framed under Section 124A to be kept in abeyance.
The court, in its prima facie observation, opined that the rigours of Section 124A of IPC were not in tune with the current social milieu, and were intended for a time when this country was under the colonial regime.