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Insights into Editorial: Unwarranted arrest: On sedition charges

 

Context:

The arrest of an MP from Andhra Pradesh, on the grave charge of sedition, is yet another instance of the misuse of the provision relating to exciting “disaffection” against the government.

The police in different States have been invoking sedition, an offence defined in Section 124A IPC, against critics of the establishment and prominent dissenters.

However, the arrest of MP is unwarranted, considering that he is being accused of only speech-based offences relating to his diatribe against his party leader and CM.

 

What is sedition?

The Indian Penal Code defines sedition (Section 124A) as an offence committed when “any person 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”.

Disaffection includes disloyalty and all feelings of enmity. However, comments without exciting or attempting to excite hatred, contempt or disaffection, will not constitute an offence under this section.

 

History of Sedition Law in India:

In 1837: Thomas Macaulay (Famous for his Macaulay Minute on Indian Education 1835) drafted the Penal Code in 1837. Sedition was placed in the Penal Code 1837 as Section 113.

Later, it was omitted, to only be readded in 1870 back in the Penal Code by an amendment introduced by Sir James Stephen. British Raj in India had introduced this section on sedition under the title “Exciting Disaffection”.

IPC Amendment Act of 1898: It made amendments to the changes brought through the Penal Code in 1870.

The current Section 124A is said to be similar to the amendments made to it in 1898 with few omissions made in 1937, 1948, 1950, and by Part B States (Law) Act, 1951.

 

Arguments in support of Section 124A:

  1. Section 124A of the IPC has its utility in combating anti-national, secessionist and terrorist elements.
  2. It protects the elected government from attempts to overthrow the government with violence and illegal means.
  3. The continued existence of the government established by law is an essential condition of the stability of the State.
  4. If contempt of court invites penal action, contempt of government should also attract punishment.
  5. Many districts in different states face a Maoist insurgency and rebel groups virtually run a parallel administration.
  6. These groups openly advocate the overthrow of the state government by revolution.
  7. Against this backdrop, the abolition of Section 124A would be ill-advised merely because it has been wrongly invoked in some highly publicized cases.

 

Arguments Against the Sedition Law:

  1. The terms used under Section 124A like ‘disaffection’ are vague and subject to different interpretation to the whims and fancies of the investigating officers.
  2. As the seeds of sedition law were sown in colonial times, it is often described as a draconian law that can be used against what is otherwise is constitutionally guaranteed freedom of speech and expression
  3. Dissent and criticism of the government are essential ingredients of robust public debate in a vibrant democracy.
  4. They should not be constructed as sedition. Right to question, criticize and change rulers is very fundamental to the idea of democracy.
  5. It has an ill effect on constructive criticism. As noted by the Supreme Court, views that are different from the government’s don’t mean seditious. Therefore, sedition laws can demotivate legal and lawful criticism.
  6. Britain had repealed the Sedition Act in 2009, hence India should too be long done with this.
  7. To penalize the offender for disrupting public order, IPC and Unlawful Activities Prevention Act 2019 have provisions that can take care of the punishments.
  8. India’s ratification of the International Covenant on Civil and Political Rights (ICCPR) in 1979 should be seen as a right step towards acknowledging freedom of expression.
  9. Hence, with Sedition Law in activity, could lead to the wrong use of the law where people are charged with offence arbitrability for expressing their opinions.

It is now fairly well known that the section is attracted only if there is an imminent threat to public order or there is actual incitement to violence ingredients that are invariably absent in most cases.

In addition, it remains vaguely and too broadly defined (the term ‘disaffection’ is said to include ‘disloyalty’ and ‘feelings of enmity’), warranting a total reconsideration.

 

Viewpoint of the Law Commission of India:

  1. In August 2018, the Law Commission of India published a consultation paper recommending that it is time to re-think or repeal the Section 124A of the Indian Penal Code that deals with sedition.
  2. In its 39th Report (1968), the Law Commission had rejected the idea of repealing the section.
  3. In its 42nd Report (1971), the panel wanted the scope of the section to be expanded to cover the Constitution, the legislature and the judiciary, in addition to the government to be established by law, as institutions against which ‘disaffection’ should not be tolerated.
  4. In the recent consultation paper on the sedition, the Law Commission has suggested invoking 124A to only criminalize acts committed with the intention to disrupt public order or to overthrow the Government with violence and illegal means.

 

Prosecution under Sedition law should check its misuse:

  1. The constitutionality of sedition was challenged in the Supreme Court in Kedar Nath Vs State of Bihar (1962).
  2. The Court upheld the law on the basis that this power was required by the state to protect itself.
  3. However, it had added a vital caveat that “a person could be prosecuted for sedition only if his acts caused incitement to violence or intention or tendency to create public disorder or cause disturbance of public peace”.
  4. It is essential to protect national integrity. Given the legal opinion and the views of the government in favour of the law, it is unlikely that Section 124A will be scrapped soon.
  5. However, the section should not be misused as a tool to curb free speech. The SC caveat, given in Kedar Nath case, on prosecution under the law can check its misuse.
  6. Recently, the Supreme Court decided to revisit the constitutionality of this section.
  7. While a judicial verdict will be welcome, it would be even more protective of free speech if the Centre abolished the provision.

 

Conclusion:

India is the largest democracy of the world and the right to free speech and expression is an essential ingredient of democracy.

The expression or thought that is not in consonance with the policy of the government of the day should not be considered as sedition.

In 1979, India ratified the International Covenant on Civil and Political Rights (ICCPR), which sets forth internationally recognized standards for the protection of freedom of expression.

However, misuse of sedition and arbitrary slapping of charges are inconsistent with India’s international commitments.

Section 124A should not be misused as a tool to curb free speech. The SC caveat, given in Kedar Nath case, on prosecution under the law can check its misuse.

It needs to be examined under the changed facts and circumstances and also on the anvil of ever-evolving tests of necessity, proportionality and arbitrariness.