The Law Commission of India has opined against the repeal of the sedition law and instead recommended that the law be retained, although with some key amendments. In its 279th report on the usage of the sedition law, the Law Commission, headed by former Karnataka High Court Chief Justice Ritu Rajn Awasthi, said that Section 124A be amended to bring greater clarity regarding its usage and to bring the scheme of punishment detailed in the law in parity with other provisions under Chapter VI of the IPC.
“Law Commission is of the considered view that Section l24A needs to be retained in the Indian Penal Code, though certain amendments, as suggested, may be introduced in it by incorporating the rotio decidendi of Kedar Nath Singh v. State of Bihar so as to bring about greater clarity regarding the usage of the provision,” the Commission said in its report to Law minister Arjun Ram Meghwal.
The Law Commission’s report comes a year after the Supreme Court, on May 11, 2022, put the sedition law and hold and directed the central and state governments to refrain from registering any FIR or coercive measures under the law. It also suspended all continuing investigations into cases filed under the law and ordered that all pending trials, appeals and proceedings related thereto be kept in abeyance.
The sedition law has often been seen as being at loggerheads with the intent of the Constitution, being violative of the freedom of speech and expression provided under Article 19(1)(a) of the Constitution. Political parties have also been often accused of misusing the sedition law to quell political dissent. The report notes that the provision has invited stringent criticism on account of being invoked by various state governments against activists, detractors, writers, journalists, etc.,
seeking to silence political opposition by accusing the dissenters of promoting disaffection.
“One of the major grounds of objection to Section 124A is that a forceful censure of government policies and personalities and stinging denunciation of an unresponsive or insensitive administration are in all likelihood wrongfully treated to be seditious,” it adds.
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However, the report notes, that despite the need for laying down procedural guidelines to curb the misuse of the sedition law, it does not warrant its repeal. “Even though, in our considered opinion, it is imperative to lay down certain procedural guidelines for curbing any misuse of Section l24A of IPC by the law enforcement authorities, any allegation of misuse of this provision does not by implication warrant a call for its repeal,” it states.
“While any alleged misuse of Section 124A of IPC can be reined in by laying down adequate procedural safeguards, repealing the provision altogether can have serious adverse ramifications for the security and integrity of the country, with the subversive forces getting a free hand to further their sinister agenda as a consequence,” it said.
The court said that the sedition law is effective in safeguarding the unity and integrity of India and said that prompt and effective suppression of disintegrating tendencies is in the immediate interest of the nation. The Commission further noted that Section 124A of IPC has its utility in combating anti-national and secessionist elements as it seeks to protect the elected government from attempts to overthrow it through violent and illegal means.
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It further noted that the existence of counter-terror legislations does not obviate the need for Section 124A, and said that laws like the UAPA and the NSA were meant to deal with different objectives. “Further, in the absence of a provision like Section 124A of IPC, any expression that incites violence against the Government would invariably be tried under the special laws and counter-terror legislations, which contain much more stringent provisions to deal with the accused,” it said.
The report also dismissed the argument that sedition being a colonial legacy made it a valid ground for its repeal. “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.”
As part of its recommendations, the Commission suggests that the test laid down by the Supreme Court in Kedar Nath Singh is a settled proposition of law. “Unless the words used or the actions in question do not tend to incite violence or cause public disorder or cause disturbance to public peace, the act would not fall within the ambit of Section 124A of IPC. However, in the absence of any such express indication, a plain reading of Section 124A may seem to be vague and confusing, resulting
in its misinterpretation and misapplication by the concerned authorities. Consequently, we recommend that the ratio of Kedar Nath Singh may be incorporated in the phraseology of Section 124A so as to bring about more clarity in the interpretation, understanding and usage of the provision,” it said.
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Suggesting laying down of procedural guidelines to prevent any misuse of the sedition law, the Commission suggested that a mandatory recourse similar to as provided under Section 196(3) of the Code of Criminal Procedure, 1973 (CrPC) should be undertaken prior to registration of an FIR with respect to the commission of an offence under this section.
“This can be achieved by introducing certain procedural safeguards that can be laid down by the central government through issuance of model guidelines in this regard. Alternatively, an amendment may be introduced in Section 1 54 of CrPC by incorporating a proviso which mandates that no FIR will be registered for an offence under Section 124A “unless a police officer, not below the rank of Inspector, conducts a preliminary inquiry and on the basis of the report made by the said police officer the Central Government or the State Government, as the case may be, grants permission for registering a First Information Report. “
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“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 lndia, with a tendency to incite violence or cause public disorder shall be punished with imprisonment for life, to which fine may be added, or with imprisonment of either description for a term which may extend to seven years, to which fine may be added, or with fine.”
The expression “disaffection” would include disloyalty and all feelings of enmity, it said, adding that comments expressing disapprobation of the measures of the government or administration with a view to obtaining their alteration by lawful means, without exciting or attempting to excite hatred, contempt or disaffection, do not constitute an offence under this section.
“The expression “tendency” means mere inclination to incite violence or cause public disorder rather than proof of actual violence or imminent threat to violence,” it said.
The Commission further recommended that the scheme of punishment provided under the said section be amended to ensure that it is brought in parity with the other offences under Chapter VI of IPC. Moreover, cognizant of the views regarding the misuse of Section 124A, the Commission recommends that model guidelines curbing the same be issued by the Central Govemment. In this context, it is also alternatively suggested that a provision analogous to Section 196(3) of the Code of Criminal Procedure, 1973 (CrPC) may be incorporated as a proviso to Section 154 of CrPC, which would provide the requisite procedural safeguard before the filing of an FIR with respect to an offence under Section l24A of IPC,” it added.