Law Commission of India's 279th report recommends retention of Sedition law
The Law Commission of India has submitted its 279th report titled “Usage of the Law of Sedition” to the Government of India. The Law Commission has suggested that Section 124A (Sedition) of the Indian Penal Code (IPC) needs to be retained; however certain amendments can be incorporated to bring clarity to the use of the provision.
The Law Commission has suggested to incorporate the Supreme Court’s ratio in Kedar Nath Singh v State of Bihar (1962). The Law Commission has further proposed to incorporate Section 196(3) of the Criminal Procedure Code (CrPC) as a proviso to Section 154 of the CrPC to provide a procedural safeguard before filing FIR against sedition.
Section 124A of the IPC states, “Sedition – Whoever, 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, shall be punished with imprisonment for life, to which fine may be added, or with imprisonment which may extend to three years, to which fine may be added, or with fine.”
The report states, “Having discussed the nuances of the law of sedition in India extensively, the Law Commission is of the considered opinion that Section 124A of IPC should be retained.” The report lists five grounds – Safeguarding the Unity and Integrity of India, Sedition is a Reasonable Restriction under Article 19(2), Existence of Counter-Terror Legislation does not Obviate the Need for Section l24A, Sedition being a Colonial Legacy is not a Valid Ground for its Repeal and Realities Differ in Every Jurisdiction – for retaining the sedition provision.
Safeguarding the Unity and Integrity of India
The report justifies the incorporation of the sedition provision in view of India’s internal security. The report quotes Chief Justice BP Sinha’s observation in the Kedar Nath Singh case, wherein he said, “Every State, whatever its form of Government, has to be armed with the power to punish those who, by their conduct, jeopardise the safety and stability of the State, or disseminate such feelings of disloyalty as have the tendency to lead to the disruption of the State or to public disorder.”
The report further observes the proliferating role of social media in propagating radicalisation against India and inspiring hate against the Government of India. The report states that the sedition provision is useful in combating anti-national and secessionist elements by protecting the democratically elected governments from attempts to overthrow through violent means.
The report states that the continued existence of the government established by law is an essential condition for the security of the state and that “it becomes imperative to retain Section 124A and ensure that all such subversive activities are nipped in their incipiency.”
Sedition is a Reasonable Restriction under Article 19(2)
The report states that the contentions that the sedition provision is violative of Article 19(1)(a) of the Constitution of India, which guarantees freedom of speech and expression, do not hold ground. The report states that the Constituent Assembly substituted ‘sedition’ with ‘which undermines the security of, or tends to overthrow, the State’ as “it considered the latter phrase to be of wider import and more expansive.”
Furthermore, the report said that the Government of India, through the first amendment to the Constitution, incorporated the words ‘public order’, ‘friendly relations with foreign states’, and ‘incitement to an offence’ as further restrictions on Article 19(1)(a) of the Constitution. The Supreme Court, in the Kedar Nath Singh case, also held that the restrictions imposed under the sedition provision are constitutional, as it is a reasonable restrictions.
Existence of Counter-Terror Legislation does not Obviate the Need for Section l24A
The report notes that the Unlawful Activities (Prevention) Act (UAPA) is a special law dealing with activities of terrorist or subversive nature and the National Security Act (NSA) deals with preventive detention. The report further notes that “On the other hand, Section 124A of IPC seeks to prevent the violent, illegal, and unconstitutional overthrow of a democratically elected government established by law. Hence, the existence of the former does not by implication cover all elements of the offence envisaged under Section 124A of IPC.”
The Law Commission said that in the absence of the sedition provision, the expressions inciting violence against the government would be tried under the special law and counter-terror legislations, which are more stringent in dealing with the accused.
Sedition being a Colonial Legacy is not a Valid Ground for its Repeal
The Law Commission refutes the contentions claiming that the sedition provision is a colonial legacy and therefore, it must be removed. The report states, “It is often said that the offence of sedition is a colonial legacy based on the era in which it was enacted, especially given its history of usage against India’s freedom fighters.”
“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 Law Commission’s report adds.
The report states that just because a particular legal provision has colonial origins, does not ipso facto validate a case for its repeal. Furthermore, the need for such provision must be critically analysed in light of present circumstances.
Furthermore, the Law Commission highlights the distinction between a colonial rule and a democratic rule; wherein the former penalised harmless criticism to secure their interests, while the latter enables people to indulge in healthy criticism of the government.
The Law Commission clarifies, “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.”
Realities Differ in Every Jurisdiction
“Each country’s legal system grapples with its own different set of realities. Repealing Section 124A of IPC on the mere basis that certain countries have done so is essentially turning a blind eye to the glaring ground realities existing in India,” the Law Commission’s report said.
The report further observes, on a comparative study of the sedition laws in other jurisdictions, it is evident that mere cosmetic changes have been affected in respective sedition provisions without taking away the substance of the provision, in some of the most advanced democracies.
“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,” the report added.
Law Commission’s Recommendations
The Law Commission makes four recommendations to the Government of India – Incorporation of the Ratio of Kedar Nath Judgment, Procedural Guidelines for Preventing any Alleged Misuse, Removal of the Oddity in Punishment Prescribed and Proposal for Amendment of Sedition Provision – to prevent the misuse of the provision.
The Law Commission states that the Supreme Court’s ruling in the Kedar Nath Singh case is a well-settled proposition of law. Therefore, unless the words used or actions do not tend to incite violence, cause public disorder or disturbance to public peace, it would not attract the sedition provision. However, in the absence of an express indication, the plain reading of the provision may be vague or confusing, resulting in its misinterpretation and misapplication by authorities.
Therefore, the Law Commission recommends the incorporation of the ratio of the Kedar Nath Case in the phraseology of the sedition provision to provide clarity in the interpretation, understanding and usage of the provision.
Furthermore, the Law Commission recommends that procedural guidelines be incorporated, as a mandatory recourse before registering an FIR under the sedition provision to prevent misuse its misuse. The report recommends the inclusion of a proviso wherein a police officer, not below the rank of Inspector, will conduct a preliminary enquiry and submit the report to the government. The government on perusal of the report will grant permission to register the FIR.
The Law Commission also clarifies that the purpose of the preliminary enquiry is to ascertain whether a prima facie case would be made out and if some cogent evidence exists. The Law Commission made this recommendation noting the Supreme Court’s observations in SG Vombatkere v Union of India (2022).
Furthermore, the Law Commission highlights the glaring disparity in the punishment prescribed under the sedition provision. “It could be either imprisonment for life or imprisonment up to three years only, but nothing in between, with the minimum punishment being only fine,” the report read.
The Law Commission has recommended that the provision be revisited to bring the prescribed punishment under the provision in consonance with other offences dealt with under Chapter VI of the IPC. The commission said that this would allow courts greater room to award punishment, in accordance with the scale and gravity of the act committed.
The Law Commission recommended a draft sedition provision in consonance with its recommendations wherein it added “with a tendency to incite violence or cause public disorder” to the sedition provision with an explanation “Explanation 4.–The expression “tendency” means the mere inclination to incite violence or cause public disorder rather than proof of actual violence or imminent threat to violence.”
Furthermore, the Law Commission suggested an amendment to the sedition provision; changing the “imprisonment which may extend to three years” to “with imprisonment of either description for a term which may extend to seven years.”
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