SC refers challenge to sedition law to Constitution Bench

Context

As pet the recent update, the Supreme Court (SC) has sent petitions against Section 124A (sedition law) to a Five-judge panel for review.

Background

In a historic move aimed at overhauling colonial-era criminal laws, the Central government had introduced three bills in the Lok Sabha on August 11, 2023.
The Bills aims to replace the Indian Penal Code (IPC), Criminal Procedure Code (CrPC) and the Indian Evidence Act by the Bharatiya Nyaya Sanhita, the Bharatiya Nagrik Suraksha Sanhita and Bharatiya Sakshya Bill, respectively.
The Bharatiya Nyaya Sanhita has been proposed to repeal sedition law and to introduce a new provision with a wider definition of the offence.

Supreme Court’s stand:

The Supreme Court rejected the government's request to delay and referred petitions challenging the colonial-era sedition law (Section 124-A) to a five-judge Constitution Bench.
The recent Bench led by CJI, mentioned that the five-judge Constitution Bench would consider in view of the fact that, Kedar Nath Singh versus State of Bihar (1962) upheld the validity of Section 124-A of the IPC.

Kedar Nath Singh versus State of Bihar (1962):

The Supreme Court upheld the constitutionality of Section 124A but with certain important clarifications:

The Court ruled that sedition laws could only be invoked if there was incitement to violence or public disorder.
Mere criticism of the government or strong words against it did not amount to sedition unless there was a direct incitement to violence.
The Court emphasized that the right to free speech and expression was not absolute and must be balanced with the need to maintain public order and security.
It clarified that the aim of the sedition law was to prevent actions that could lead to public disorder or violence against the State.

The apex court observed that the Kedar Nath Singh case was based on a limited view of fundamental rights, mainly Article 19. Later, it evolved as Articles 14, 19, and 21 were seen as working together.
The court emphasized that Section 124A still exists, and any new law would apply only in the future, so the challenge to its validity needs examination.
The court directed the matter to be placed before the Chief Justice for the formation of a bench with at least five judges.

What is Section 124 A?

Section 124A says “a person commits the crime of sedition, if he/she brings or attempts to bring in hatred or contempt, or excites or attempts to excite disaffection towards, the government established by law in India. “
It can be by words, either spoken or written, or by signs, or by visible representation, or otherwise.
It prescribes the maximum punishment of life imprisonment.

Historical prospect of Sedition law:

The law on sedition was not there in the original IPC, which came into force in 1862.
It was added to the Code in 1870 and its ambit was expanded in 1898 with a view to crush the freedom movement.
While upholding the validity of Section 124A of IPC, a five-judge Constitution Bench had in Kedarnath Singh’s case (1962) restricted the scope of sedition law by prescribing certain safeguards.
Sedition was made a cognizable offence in 1973.

What are the issues raised against the Bill?

Criminalizing community service: The new Bill includes community service as a punishment, which can be a fair option for minor offenses where a fine isn't enough, but jail time is too harsh.
However, the Bill doesn't specify what qualifies as community service, potentially leading to disputes over sentencing.
Clear guidelines for community service would be helpful to avoid confusion and ensure a fair justice system.

‘Community services’ in India:

Courts in India have been imposing community service as conditions for bail. For example, ordering traffic management and working at de-addiction centres.
However, there have also been stray cases where peculiar kinds of community service were ordered. For example, direction to distribute copies of Quran, donation of money to gaushala or direction to serve at a temple.

Against Organised crime: The Bharatiya Nyaya Sanhita Bill includes a section (Clause 109) addressing organized crime, covering offenses like kidnapping, robbery, cyber-crimes, and more.
- While these offenses are similar to existing laws, the new bill's definition is broader and unclear. For example, it mentions land grabbing, but this term remains undefined.
- Phrases like "cybercrimes" and "economic offenses" lack clear definitions in the bill, leading to ambiguity.
- The term "cybercrimes having severe consequences" is also vague.
For Petty organised crime:
- Clause 110 of the Bharatiya Nyaya Sanhita Bill addresses "petty organized crime" but raises concerns.
- It uses the term "crime" instead of the standard "offence" without defining it.
- The clause proposes higher punishment for acts causing "general feelings of insecurity" among citizens. This approach creates problems as it links punishment to citizens' perceptions rather than the nature of the act.
- This approach lacks clarity and consistency, potentially leading to uneven application of punishment based on subjective factors, undermining the intended deterrence effect of the law.

Way forward:

Guidelines for Prosecution: Establish clear guidelines for the prosecution of sedition cases. Prosecutors should be required to demonstrate a clear link between the alleged seditious act or speech and the incitement of violence or public disorder.
Periodic Review: Periodically review and reassess the relevance and necessity of the sedition law in a modern democratic society. Laws should evolve to reflect changing societal norms and needs.
Legal Reforms: Consider broader legal reforms related to freedom of speech and expression. Evaluate whether existing laws adequately protect free speech and whether new legislation is needed to address contemporary challenges, such as hate speech and online harassment.