Insights into Editorial: Supreme Court puts colonial sedition law on hold

Context:

The Supreme Court suspended pending criminal trials and court proceedings under Section 124A (sedition) of the Indian Penal Code, while allowing the Union of India to reconsider the British-era law.

The Supreme Court has ordered that no new FIRs will be filed for Sedition and all the pending cases will be on hold while the Government reconsiders the law.

The Supreme Court was referring to the petitions that challenged the law alleging its misuse in the cases such as in Maharashtra, where it was invoked over the chanting of Hanuman Chalisa.

Section 124A IPC:

It defines sedition 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.

It helps in protecting the elected government from attempts to overthrow the government with violence and illegal means.

The continued existence of the government established by law is an essential condition of the stability of the State.

Historical Background of Section 124A (sedition) of the Indian Penal Code:

1. Sedition laws were enacted in 17th century England when lawmakers believed that only good opinions of the government should survive, as bad opinions were detrimental to the government and monarchy.
2. The law was originally drafted in 1837 by Thomas Macaulay, the British historian-politician, but was inexplicably omitted when the Indian Penal Code (IPC) was enacted in 1860.
3. Section 124A was inserted in 1870 by an amendment introduced by Sir James Stephen when it felt the need for a specific section to deal with the offence.
4. Today the Sedition is a crime under Section 124A of the Indian Penal Code (IPC).
5. Colonial administrators used sedition to lock up people who criticised the British policies.
6. Stalwarts of the freedom movement such as Lokmanya Tilak, Mahatma Gandhi, Jawaharlal Nehru, Bhagat Singh, etc., were convicted for their “seditious” speeches, writings and activities under British rule.

Thus, rampant use of the sedition law recalls the colonial era.

Sedition as a cognizable offense:

Sedition was made a cognizable offense for the first time in history in India during the tenure of Prime Minister Indira Gandhi in 1973, that is, arrest without a warrant was now permissible.

In 1962 the Supreme Court of India interpreted the section to apply only if there is, say, “incitement to violence” or “overthrowing a democratically elected government through violent means”.

Recent Developments of Section 124A:

1. In February 2021, the Supreme Court (SC) protected a political leader and six senior journalists from arrest, for allegedly tweeting and sharing unverified news, in multiple sedition FIRs registered against them.
2. In June 2021, the SC while protecting two Telugu (language) news channels from coercive action by the Andhra Pradesh government emphasized on defining the limits of sedition.
3. In July 2021, a petition was filed in the SC, that sought a relook into the Sedition Law,
4. The court ruled that “a statute criminalising expression based on unconstitutionally vague definitions of ‘disaffection towards Government’ etc. is an unreasonable restriction on the fundamental right to free expression guaranteed under Article 19 (1)(a) and causes constitutionally impermissible ‘Chilling Effect’ on speech”.
5. The Central Government on May 9, 2022, had announced its decision of reviewing the sedition law, however, it argued today that while it reviews the law, it should not be paused.
6. The Central Government also suggested that for now, a police officer of the level of Superintendent or above could decide whether a Sedition charge should be filed.
7. The Government further added that there may be terrorism charges too in the cases filed under Sedition law. These pending cases are not before the government or police but are before the court.

Present controversy of Sedition Law:

In recent times, the resort to this section is seen as disturbingly frequent.

Curbing dissent: Activists, cartoonists and intellectuals have been arrested under this section, drawing criticism from liberals that it is being used to suppress dissent and silence critics.

Misuse for propaganda: Authorities and the police who invoke this section defend the measure as a necessary step to prevent public disorder and anti-national activities.

Many of them have also been detained under the National Security Act and UAPA.

Arguments of Tyranny of the law:

1. However, Liberals and rights activists have been demanding the scrapping of Section 124A.
2. Provision is outdated: It is argued that the provision is “overbroad”, i.e., it defines the offence in wide terms threatening the liberty of citizens.
3. The Law Commission has also called for a reconsideration of the section.
4. It has pointed that Britain abolished it more than a decade ago and raised the question of whether a provision introduced by the British to put down the freedom struggle should continue to be law in India.
5. Doctrine of severability: Some argue that a presumption of constitutionality does not apply to pre-constitutional laws as those laws have been made by foreign legislature or bodies.
6. India is the largest democracy of the world and the right to free speech and expression is an essential ingredient of democracy.
7. The expression or thought that is not in consonance with the policy of the government of the day should not be considered as sedition.
8. The word ‘sedition’ is extremely nuanced and needs to be applied with caution. It is like a cannon that ought not to be used to shoot a mouse; but the arsenal also demands possession of cannons, mostly as a deterrent, and on occasion for shooting.

Conclusion:

Section 124A of the IPC has its utility in combating anti-national, secessionist and terrorist elements.

However, dissent and criticism of the government are essential ingredients of robust public debate in a vibrant democracy. They should not be constructed as sedition.

The higher judiciary should use its supervisory powers to sensitize the magistracy and police to the constitutional provisions protecting free speech.

The definition of sedition should be narrowed down, to include only the issues pertaining to the territorial integrity of India as well as the sovereignty of the country.