Review the sedition law

GS 2 – Indian Constitution—Historical Underpinnings, Evolution, Features, Amendments, Significant Provisions and Basic Structure.

Source :The Hindustan Times dated 01/06/2021

Reference  :

Context : Concerned over the misuse of India’s sedition law, the Supreme Court said that it will define the contours of the colonial era penal provision to indicate what does and does not constitute sedition.

The apex court made this observation while restraining the Andhra Pradesh government from taking adverse action against two Telugu news channels, which have been booked under Section 124A of the Indian Penal Code (IPC) for allegedly promoting disaffection against the state government. The court’s dissatisfaction with this provision was also clear in April when it sought a response from the Centre on a plea challenging the constitutional validity of the law.

Historical Background

Sedition, which falls under Section 124A of the Indian Penal Code, is defined as any action that brings or attempts to bring hatred or contempt towards the government of India.

  • The law was originally drafted in 1837 by Thomas Macaulay, the British historian-politician, but was inexplicably omitted when the Indian Penal Code (IPC) was enacted in 1860.
  • Section 124A was inserted in 1870 by an amendment introduced by Sir James Stephen when it felt the need for a specific section to deal with the offence.
Punishment for the Offence of Sedition:
  • Sedition is a non-bailable offence. Punishment under the Section 124A ranges from imprisonment up to three years to a life term, to which fine may be added.
  • A person charged under this law is barred from a government job.
    • They have to live without their passport and must produce themselves in the court at all times as and when required.
Why is Section 124A needed?
  • Utility in combating anti-national, secessionist and terrorist elements.
  • Many districts in different states face a Maoist insurgency and rebel groups virtually run a parallel administration – they incite disruption of public order.
  • If contempt of court(Art.129 and Art.215) invites penal action, contempt of government should also attract punishment.
Issues with section 124A
  • Colonial Era law: It is a colonial relic and a preventive provision that should only be read as an emergency measure.
  • Vague provision of sedition laws: The terms used under Section 124A like ‘disaffection’ are vague and subject to different interpretation to the whims and fancies of the investigating officers.
  • Lower Conviction Rate: According to the data from the National Crime Records Bureau, uploaded on its website, cases of sedition and under the stringent Unlawful Activities (Prevention) Act showed a rise in 2019, but only 3% of the sedition cases resulted in convictions.This shows that sedition as an offence has no solid legal grounding in India.
  • Other legal measure for offences against the state: Indian Penal Code and Unlawful Activities Prevention Act (1967), have provisions that penalize “disrupting the public order” or “overthrowing the government with violence and illegal means”. These are sufficient for protecting the national integrity. Similarly, the Prevention of Damage to Public Property Act is also there for offences against the state.
Judicial pronouncements
  • The SC in 1950 in Brij Bhushan vs the State of Delhi and Romesh Thappar vs the State of Madras.
    • In these cases, the court held that a law which restricted speech on the ground that it would disturb public order was unconstitutional.
    • It also held that disturbing the public order will mean nothing less than endangering the foundations of the State or threatening its overthrow.
    • Thus, these decisions prompted the First Constitution Amendment, where Article 19 (2) was rewritten to replace “undermining the security of the State” with “in the interest of public order”.
  • In 1962, the SC decided on the constitutionality of Section 124A in Kedar Nath Singh vs State of Bihar.
    • It upheld the constitutionality of sedition, but limited its application to “acts involving intention or tendency to create disorder, or disturbance of law and order, or incitement to violence”.
    • It distinguished these from “very strong speech” or the use of “vigorous words” strongly critical of the government.
  • In 1995, the SC, in Balwant Singh vs State of Punjab, held that mere sloganeering which evoked no public response did not amount to sedition.
Way forward
  • Globally, sedition is increasingly viewed as a draconian law and was revoked in the United Kingdom in 2010. In Australia, following the recommendations of the Australian Law Reform Commission (ALRC) the term sedition was removed.
  • Disturbance of public order has been recognised as an important ingredient of sedition in India . The term  ‘public order‘ has been defined and distinguished from  ‘law and order‘ and ‘security of State‘ in Ram Manohar Lohiya v. State of Bihar. The Supreme Court observed the difference between the three of them is that of degree.
    • “One has to imagine three concentric circles. Law and order represents the largest circle within which is the next circle representing public order and the smallest circle represents security of State. It is then easy to see that an act may affect law and order but not public order just as an act may affect public order but not security of the State. “
  • In August 2018, the Law Commission published a consultation paper recommending that it is time to re-think or repeal the Section 124A.
    • Since sedition is an offence against the State, higher standards of proof must be applied to convict a person for this offence.
    • Section 124A IPC must be read in consonance with Article 19(2) of the Constitution and the reasonableness of the restriction must be carefully scrutinised on the basis of facts and circumstances of the case.
    • It also put forward two significant questions
      1. What is the extent to which the citizens of our country may enjoy the ‘right to offend‘?
      2. At what point the ‘right to offend‘  would qualify as hate speech?

While it is essential to protect national integrity, the law should not be misused as a tool to curb free speech. Dissent and criticism are essential ingredients of a robust public debate on policy issues as part of vibrant democracy. Therefore, every restriction on free speech and expression must be carefully scrutinised to avoid unwarranted restrictions.

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