By Srikant Parthasarathy
Section 124A of the Indian Penal Code (IPC), the sedition law, was under question for the right reasons in the Supreme Court of India as it stands incompatible with international law. The SC wanted to examine the law’s constitutionality, but the government said it would review the law.
This has led to many questions, including ones on fresh registration of cases under the Section. The SC rightly nipped it in the bud by ordering that there shall be no further cases registered under the sedition law.
The invocation of the 124 A of the IPC is summary in nature, and has multiple limbs and claws to catch hold of anyone who makes a seditious comment. The first such case in independent India was Ram Nandan v State of Uttar Pradesh (1958), and there has been a barrage of cases since.
The problem with sedition law in India is not just 124A, but the entire length and breadth of IPC Sections 121- 124A that relate to “waging war against the state”. Charges under multiple heads as laid out by these sections—so as to afford the public prosecutor enough leg room to indict a person under an ‘effective sedition’ charge—are not uncommon. The National Crime Research Bureau published statistics for 2010-2020 in which 168 cases of sedition were invoked in Bihar alone.
A meaningful stance on the question of criminalisation of ‘seditious’ activity is not another law, but scrapping of sedition law altogether. The SC has categorically said that it would not be entertaining any cases arising out of a sedition FIR. A natural inference can be that the apex court has made up its mind to strike down the law in whatever manner it stands today. The SC’s intent is appreciable, but law enforcement, while not expressly invoking 124A, can resort to the additional limbs of the Section 121-124. Do those cases automatically stand barred by this order? Not likely.
The problem with sedition charges is not because of 124A alone, but also the add-ons made to a chargesheet, making it difficult for an accused to have protection because of the prohibition of invocation of 124A charges. This is analogous to cutting a branch of a tree that has produced a poisonous fruit but leaving the tree to more of the same through other branches.
Another question that needs considering is whether the SC has thrown a wrench in the consultative process that the government aspires for. The apex court duly recognised the delay tactics deployed by the government, but failed to provide relief in the context of the 324 cases of sedition registered between 2014-2019—with an acquittal rate of 99.98%, provided the cases progressed to a trial.
Again, acquittal was a six-year struggle. The restriction on 124A in FIRs would be impact perhaps a statistically coherent ~50 persons every year. The Supreme Court order thus effectively protects a small group of persons, but doesn’t provided any reprieve to ~500 persons slapped with sedition charges, since they have charges other than 124A to battle with.
The problem with the SC order is also the trial of the sedition cases registered till date. If it were to strike down the law, it would not undo a past wrong. The Supreme Court must emphasise very clearly to the government that any law that the latter intends to legislate should have a clear mandate of forethought before registering sedition as an offence. This presents a paradox, and thus the only solution is scrapping of the sedition law.
There is international precedent for this. The United Nations General Assembly, o December 16, 1966, passed the International Covenant on Civil and Political Rights (ICCPR). Article 19 of the said resolution reads “Everyone shall have the right of freedom of expression (sic) regardless of frontiers, orally, in writing or in print (sic). Such right is caveated by either breach of reputation of others or a question of public morality, national security, or public order.” The ICCPR now states that the onus is on the prosecution to prove beyond any doubt that alternative means were available (Shchetko v Belarus, 2006).
In Erbakan v Turkey, the European Court of Human Rights concluded that even if an activity doesn’t promote secularism, it won’t attract arbitrary dismissal of the freedom of expression, and upheld the Article 10 of The Human Rights Act (the EU equivalent of the Article 19 of ICCPR).
The court went on to further say that the onus lies on the state to satisfy the court that no other alternative remedies were available other than registering a criminal case against the person.
The restriction that the SC has placed on fresh cases is impulsive; it other means of charging a person still deployable by law enforcement agencies widely and at the drop of a hat.
The author is Professor of International Law