Context

The Supreme Court recently directed the Centre and states to keep in abeyance all pending trials, appeals, and proceedings with respect to the charge framed under Section 124A of the Indian Penal Code (IPC), till the central government completes the promised exercise to reconsider and re-examine the provision.

Background

• The sedition law is enshrined in Section 124A of the Indian Penal Code (IPC).
• Thomas Macaulay, who drafted the Indian Penal Code, had included the law on sedition.
• The first application of the law was the trial of newspaper editor Jogendra Chandra Bose in 1891.
• Other prominent examples of the application of the law include the trials of Tilak (1897) and Gandhi (1922).
• Jawaharlal Nehru, Vinayak Damodar Savarkar, and Abul Kalam Azad were also charged with sedition.

What is sedition? Sedition is overt conduct, such as speech and organization that tends toward rebellion against the established order. Sedition often includes subversion of a constitution and incitement of discontent toward, or insurrection against, established authority. Sedition may include any commotion, though not aimed at direct and open violence against the laws. A seditionist is one who engages in or promotes the interest of sedition.

Present scenario

• Sedition was made a cognizable offence for the first time in history in India during the tenure of Prime Minister Indira Gandhi in 1973, that is, arrest without a warrant was now permissible.
• In 1962 the Supreme Court of India interpreted the section to apply only if there is, say, "incitement to violence" or "overthrowing a democratically elected government through violent means.
• As of 11th May 2022 this law has been put on temporary hold by Supreme Court of India citing re-examination.

Section 124A of IPC According to the section 124A, the charges could be put on whomever, 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. He/she shall be punished with imprisonment for life, to which a fine may be added; or, with imprisonment which may extend to three years, to which a fine may be added; or, with fine.” The provision also contains three explanations: The expression “disaffection” includes disloyalty and all feelings of enmity; Comments expressing disapprobation of the measures of the Government with a view to obtain their alteration by lawful means, without exciting or attempting to excite hatred, contempt or disaffection, do not constitute an offence under this section; 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.

Legal challenges to the existing provision for sedition

• As early as 1950, the Supreme Court in Romesh Thapar v State of Madras held that “criticism of the government exciting disaffection or bad feelings towards it, is not to be regarded as a justifying ground for restricting the freedom of expression and of the press.
• Subsequently, two high courts— the Punjab and Haryana High Court in Tara Singh Gopi Chand v. The State (1951), and the Allahabad High Court in Ram Nandan v. State of Uttar Pradesh (1959) — declared that Section 124A of the IPC was primarily a tool for colonial masters to quell discontent in the country and declared the provision unconstitutional.
• However, in 1962, the issue came up before the Supreme Court in Kedarnath Singh v State of Bihar.

Kedar Nath Singh versus State of Bihar (1962): In Kedar Nath Singh versus State of Bihar (1962), the Supreme Court had made it clear that ‘strong words used to express disapprobation of the measures of the Government with a view to their improvement or alteration by lawful means’ did not amount to sedition.

• This ruling puts the onus on law enforcers to come up with indisputable evidence of incitement to violence or disturbance of public peace.
• The court also issued seven “guidelines”, underlining when critical speech cannot be qualified as sedition.

Steps taken forward

• The Supreme Court has agreed to hear fresh challenges against the provision after a batch of petitions were filed.
• This would involve a seven-judge bench considering whether the Kedar Nath ruling was correctly decided.
• Although the government initially defended the provision arguing that “isolated incidents of misuse” do not necessitate removal of the provision itself, it has now told the court that it is mulling a fresh review of the colonial law.
• The court’s intervention is crucial because in case it strikes down the provision, it will have to overrule the KedarNath ruling and uphold the earlier rulings that were liberal on free speech.
• However, if the government decides to review the law, either by diluting the language or repealing it, it could still bring back the provision in a different form.

Other interpretations

• In August 2018, the Law Commission of India published a consultation paper recommending that it is time to re-think or repeal the Section 124A of the Indian Penal Code that deals with sedition.
• In its 39th Report (1968), the Law Commission had rejected the idea of repealing the section.
• In its 42nd Report (1971), the panel wanted the scope of the section to be expanded to cover the Constitution, the legislature and the judiciary, in addition to the government to be established by law, as institutions against which 'disaffection' should not be tolerated.
• In the recent consultation paper on the sedition, the Law Commission has suggested invoking 124A to only criminalize acts committed with the intention to disrupt public order or to overthrow the Government with violence and illegal means.

Way forward

• Numerous critics, students, former government employees including Indian Police Service and Indian Administrative Service officers, legal thinkers and judges, scholar, human rights and civil liberty advocates, journalists, and so on have commented against the sedition law, calling for it to be scrapped or undergo amendments.
• It should be amended as, Section 124A should be retained subject to three conditions:
• The first, that, the offender must be in a position of authority,
• Second, that, the offending words must be understood in context,
• And, third, they should have a tendency to actually cause violence or disorder.
• The following laws in India address the same aspects covered by the sedition law are;
• Unlawful Activities Act
• Public Safety Acts (such as the JK PSA)
• National Security Act

These laws can be used according to the offences.

conclusion

Developed Countries like UK, US and Australia had successfully repealed the law which was unconstitutional and affects fundamental rights of their citizens. There way of handling such laws can become an example for India to look into the provisions of the existing law in India, which can only be done by the judiciary effectively.

PRACTICE QUESTION Q1. “Sedition law is a colonial relic that has no place in a vibrant democracy.” Critically examine. Q2. Briefly explain the evolution of sedition law in India. What guidelines did the Supreme Court issued in the Kedar Nath ruling on sedition?