Sedition law defined under Section 124A of the Indian Penal Code is currently on hold. The colonial era law was put in abeyance by the Supreme Court of India in May last year. The 22nd Law Commission report argues that the law should be brought back; not just in its existing form and vigour, but rather with a much broader and more sweeping definition of what may be termed ‘seditious’.
The law of sedition was put in abeyance by the Supreme Court for various reasons. Its presence in the statute books was questioned owing to strong anti-terror laws in India and widespread misuse by various governments. The law was brought in during the British era to curb the activities of the freedom fighters. That history and context cannot be forgotten.
There are two crucial recommendations made by the Law Commission. The most important one is where the panel suggests that mere “tendency to incite violence or cause public disorder” shall be deemed seditious. Not leaving anything to imagination, an explanation is suggested by the law panel, making it amply clear that mere “tendency” is enough and no proof of actual violence is required. This indeed is a clear departure from the established jurisprudence of the Supreme Court.
The second one concerns the sentencing aspect. The Supreme Court, through its various judgments, has set a high threshold as to what is tantamount to be ‘seditious’ and punishable. One needs to quote only the judgment in the case of Balwant Singh vs State of Punjab (1995). The accused shouted ‘Khalistan Zindabad’. The court ruled that mere shouting of some slogans does not amount to ‘sedition’. Real, tangible violence directly linked to sloganeering is essential.
The proposed changes by the law panel shall give a free handle to state and police authorities to crack down on various forms of dissent and unpleasant statements, without proof of actual violence required. The proposed change does not make the law more prone to misuse, but rather designs it to curb acceptable forms of dissent that have been protected in Indian democracy for the last 75 years.
Hatred, contempt, or disaffection are archaic and colonial terms. These form the core of the suspended sedition law. A citizen can hate, have contempt or disaffection towards their government and can still be a good citizen. The loyalty of a citizen is only to the Constitution of India. The presence of terms like ‘disloyality’ in stature books should offend democratic temperament and sensibilities. We are no longer the citizens of the Empire under the King or the Queen to have loyalty to the throne.
The law of sedition directly impinges upon the aspect of free speech guarded under Article 19 that concerns Freedom of Speech and Expression, of course with its own set of reasonable restrictions. One must understand that the law of sedition is not targeted towards terror activities.
Much stronger and stringent provisions like Unlawful Activities Prevention Act or the National Security Act, 1980 already exist in the statute books for preventive detention and other tough measures that the state ought to take in the interest of national security.
For the state, a cartoon can be ‘seditious’, a certain brand of dissent can be ‘seditious’, a comedian or their jokes can be ‘seditious’. Any state or democratically elected government has its own political interests to protect. An elected government is not necessarily the protector of free speech. In fact, courts have protected free speech from the might of a powerful executive in many instances. This forms the core of the principles of ‘separation of powers’ where each pillar keeps a check on another to prevent abuse of power.
Interestingly, the law panel reports also talk about the “glaring ground realities in India” because of which examples of other countries like US or UK are not fit to be quoted. The panel does not elaborate on the ground realities in India.
Countries like the US and UK have bracketed sedition with anti-terror laws which is the right approach for any democracy. And if the elected government feels the need for another law, which is a notch below anti-terror laws, then it must draft a fresh legislation. Sedition in its present form is unsuitable for a modern democratic India.
The Supreme Court did not deem the law unconstitutional, but rather merely put it in abeyance. Arguably, this is not the best method to set aside a statute that reflects the will of Parliament, despite its colonial roots. Arguably, the court ought to have given a judgment on the merits of the law, deciding upon its constitutionality, decisively asserting the constitutional mandate and decades long jurisprudence.