In a pragmatic decision, the Supreme Court has directed that all proceedings on charges u/s 124 A of the IPC be kept in abeyance until the government completes the re-examination of the sedition law. By this interim order, the apex court has given the message that civil liberties are to be balanced with the security of the state. Earlier, the Solicitor General placed draft guidelines before the court, signed by the Union Home Secretary, which said that an FIR involving sedition would be registered only if an officer of at least SP rank recorded in writing his satisfaction, in the light of Supreme Court’s 2021 judgment in Vinod Dua case.
Codification of criminal laws was done by Thomas Babington Macaulay in India. Initially in 1860 the Indian Penal Code had no provision for sedition; it was included in 1870. In 1890, sedition was included as an offence u/s 124 A by the Special Act XVII. At that time, the punishment prescribed was transportation for life which was amended to life imprisonment in 1955.
In the pre-Independence era, this law was used to stifle political dissent with cases lodged against Bal Gangadhar Tilak, Annie Besant, Maulana Azad, Mahatma Gandhi and many others. The legacy of this law in India comes from England. But citing its chilling effect on freedom of speech and expression, it was repealed by the United Kingdom in 2009. The Constituent Assembly debated including sedition as a restriction to the fundamental right to freedom of speech. However, due to disagreement among members, it could not be done.
After Independence, a five-judge Constitution Bench in 1962 upheld the constitutional validity of 124 A. However, court also held that unless accompanied by incitement or call for violence, criticism of the government cannot be labelled sedition. As per guidelines issued by the constitutional bench, not all speech with disaffection, hatred or contempt against the states but only one that is likely to incite public disorder would qualify as sedition.
There is a lot of debate on its misuse but there is no authentic data for the same. As per a compilation done by Article 14, over 13,000 persons have been booked in 867 cases since 2010. The top five states – Bihar, Tamil Nadu, Uttar Pradesh, Jharkhand and Karnataka – account for more than 60 per cent of the cases since 2010. As per the report, only 13 of the 13,000 accused were found guilty in sedition cases, a conviction rate of less than 0.1 per cent.
Analysis of data from the National Crime Records Bureau (NCRB) shows nearly 400 cases of sedition were registered over the last seven years from 2014 to 2020. As per an Indian Express report, out of 322 cases filed between 2016 and 2020, chargesheets were filed in only 144 cases. As many as 23 cases were found to be false or mistake of law and 58 cases were closed for lack of evidence. Pendency of cases with police rose from 72 per cent in 2016 to 82 per cent in 2020.
The three-judge bench of the Supreme Court in its interim order has virtually suspended the probe and trial in cases under the sedition provisions. Lower courts can proceed against arrested persons on charges other than sedition if no prejudice is caused to the accused. However, no relief has been given to those accused who are behind bars under charges of sedition. There is no blanket stay on registration of fresh FIRs, but affected parties will be at liberty to approach the courts for appropriate relief. After Supreme Court ordered a freeze on the sedition Law, a journalist got relief from the Rajasthan High Court in a case registered u/s 124 A.
There are, however, a few important points emerging from this debate. These are:
1 The Kedar Nath Singh judgment of 1962 was delivered by a five-judge bench. As per constitutional norms, it can only be reviewed or reversed by a larger bench of seven judges. Instead of forming a larger bench to decide the matter, the passing of an interim order by a three-judge bench may be against constitutional proprietary.
2. There is a big difference between sedition and treason. Criticising any government cannot be a crime against the nation. In Indian Republic, why should sedition exist in the law books when it has already been repealed in its country of origin, the United Kingdom?
3. In 1973, a 13-judge bench in the Kesavananda Bharati case upheld the constitutional norms of separation of powers. Chief Justice of India N.V. Ramana and Union Law Minister Kiren Rijiju are routinely talking about lakshman rekha for different organs of parliamentary democracy. The government has brought many laws with the speed of light, why cannot the sedition law be repealed by the government through an ordinance or a law passed by Parliament? It will bring glory to Parliament and stop unnecessary judicial activism in executive matters.
4. As and when the sedition law is repealed, it will have a prospective impact. In matters which are already registered, how can the judiciary or the government intervene in a retrospective manner?
5. Not too long ago, it was brought to the Supreme Court’s notice that the state police continued to arrest people under Section 66 A of the Information Technology Act despite the top court striking it down in March 2015. As per Article 141 of the Constitution, Supreme Court judgments are supposed to be the ‘law of the land’. The guidelines in the Kedar Nath Singh case put the onus on the police to distinguish between legitimate and seditious speech. However, the same needs to be incorporated in the respective law books. There are many other judgments of the Supreme Court wherein needful changes in the statute books have not been done. This is a big cause of confusion, coercion and corruption.
6. When Section 66 A was struck down, police started registering FIR under rigorous provisions of the IPC. In the wake of the the Supreme Court’s interim order on Section 124 A, police may straight away invoke stringent provisions of UAPA where it is tough to get bail.
7. In the Kedar Nath Singh judgment, the Supreme Court had issued seven guidelines underlining when critical speech cannot be qualified as sedition. In the current matter of sedition, the Attorney General has suggested issuance of guidelines. There are several Supreme Court judgments and guidelines against frivolous FIRs and arrests. For instance, there are guidelines against hate speech but these are not enforced in letter and spirit. One reason for lack of enforcement is that there is no compilation or a statutory backup for all such guidelines. This is the root cause for police harassment and for which the much talked about police informs are needed.
In July 2021, Chief Justice of India N.V. Ramana aptly remarked Section 124 (A): “Use of sedition is like giving a saw to the carpenter to cut a piece of wood and he uses it to cut the entire forest itself.”
In a society where no distinction is made between sedition and treason, scrapping of law may not be enough to check false cases. If 124 A is scrapped, authorities may use some other draconian law to harass political opponents. Remedy lies in legal, police and judicial reforms – where bad laws are scrapped by the Union, laws are not misused by state police, and the judicial system keeps a smart vigil on false cases by way of early relief and punishment to those who misuse the law.
The Centre has not indicated any timeline for the review of sedition law. This would be an opportune time for the government to review all draconian laws. Besides being good for civil rights, this will encourage ease of doing business in India. Section 124 A has been challenged in the Supreme Court on the ground that it violates Articles 14, 19 and 21 of the Indian Constitution. If the government fails to repeal sedition, a larger bench of the Supreme Court ought to scrap section 124 A to make way for a New India.
Virag Gupta is a columnist and advocate. He can be followed @viraggupta. The views expressed in this article are those of the author and do not represent the stand of this publication.