Sedition, or inciting disaffection towards the incumbent Government, is prohibited in India. In particular, it is a criminal offence to ‘bring or attempt to bring into hatred or contempt, or to excite or attempt to excite disaffection towards, the Government established by law in India’ using spoken or written words or images. In its 279th Report, the Law Commission of India (LCI) recommended that sedition be retained in the Indian Penal Code (IPC) with some amendments, rejecting suggestions to repeal the law in case that would have ‘adverse effects’. The LCI’s recommendations are regressive and adopting them could lead to grave consequences for free speech in India.
Sedition law in India is codified in Section 124A of the IPC. It has been used indiscriminately against journalists, activists and dissidents of the Government. This has led to the curtailment of free speech – a right guaranteed under Article 19(1)(a) of the Constitution of India. Two cases on sedition law in India highlight key developments in Indian free speech jurisprudence, however the LCI recommendations threaten these developments. It is argued that the recommendations are not only vague and antithetical to free speech, but if adopted, will undo the little progress achieved in the courts and violate basic human rights.
In the first landmark case, Kedar Nath v. State of Bihar, the Supreme Court of India upheld the constitutional validity of sedition law in India. However, it interpreted section 124A of the IPC narrowly, and observed that strong words used to express dissent towards the Government would not come under the ambit of the prohibition on sedition, unless accompanied by an incitement to violence. The jurisprudence on sedition has developed positive changes, like the inclusion of an ‘intent test’ laid down in Balwant Singh v. Union of India, which excluded from the scope of sedition acts of criticism without malicious intent. Therefore, while the provision on sedition was retained in the statute book, it also underwent certain developments with a positive impact on the right to free speech.
The second case, S.G Vombatkere v. Union of India has again challenged the constitutionality of section 124A IPC before the Supreme Court of India. However, the Court made an interim order on 11 May 2022, which has ordered that the law be kept in abeyance, and no First Information Report (‘FIR’) be registered by Central or State Governments. An FIR is a document prepared by the police on basis of a complaint received by them, which has information about the alleged crime. It is followed by investigation and sets the criminal justice system in motion. The Court also ordered that trials pending under the sedition law should only be continued if they do not cause any prejudice towards the accused. This order came after the Government filed an affidavit in which it stated that the sedition law would be ‘re-examined’.
In the context of these developments, the LCI recommendations to amend the sedition law come at a time when the Government is re-examining the law, and if adopted, the recommendations could further stifle freedom of expression in India. For example, a procedural safeguard proposed by the LCI recommends that a preliminary enquiry be conducted by a police officer, and prior permission of the Central or State Government be obtained for registration of a First Information Report. However, this regime creates an executive hegemony over sedition cases, and will not ipso facto create a substantive safeguard, especially when sedition cases are mostly filed against dissidents of the Government.
The LCI’s proposed amendments also include an enhanced punishment for sedition. Section 124A currently provides for life imprisonment, or imprisonment up to three years and/or fine. The LCI proposes to increase the three years to seven years. The recommendation also creates another condition for attracting Section 124A – ‘tendency to incite violence’. This phrase is defined as ‘mere inclination to incite violence or cause public disorder rather than proof of actual violence or imminent threat to violence’. This is a very low threshold and becomes a matter of interpretation, not only on what acts ‘tend to incite violence’, but also on what would constitute a disturbance of public order, which is not only subjective, but also not settled in Indian free speech jurisprudence. This line of reasoning was already attempted in the Kedar Nath case, since which several developments have taken place. Therefore, what is left of the LCI recommendations is enhanced punishment and an improper safeguard. There is no detailed justification for why sedition law needs to stay on the statute books, apart from ‘safeguarding unity and integrity’ of India – which is a vague rationale that has not been defined anywhere.
The LCI recommendations are not binding, but will play a major role in the ‘re-examination’ of sedition law currently undertaken by the Central Government. However, if the recommendations are adopted, it will lead to further curtailment of freedoms guaranteed under Article 19 of the Constitution of India. These recommendations, therefore, should not be incorporated, and Section 124A must be struck from the IPC.
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