Existence Of Counter-Terror Legislations Does Not Obviate Need For S.124A IPC: Law Commission Recommends Amendments, Enhanced Punishment
The 22nd Law Commission of India, in its 279th report on "Usage of the Law of Sedition" has recommended that Sedition Law under Section 124A needs to be retained in the Indian Penal Code, with certain suggested amendments, including enhanced punishment of imprisonment up to 7 years instead of 3 years.
The Commission has found that the existence of counter-terror legislations does not obviate the need for Section l24A. The Commission takes note of the threats to India's internal security. On the subject of internal security, the report quotes NSA Ajit Doval thus- "Wars ceased to become effective instrument to achieve political and military objectives. They are too expensive, unaffordable, and there's uncertainty about their outcome. It is the civil society that can be subverted, divided and manipulated to hurt the interest of the nation".
The Commission headed by Justice Ritu Raj Awasthi, former Chief Justice of Karnataka, suggested certain amendments that could be introduced in the law by incorporating the ratio decidendi of Kedar Nath Singh v. State of Bihar, AIR 1962 SC 9551, to bring about greater clarity regarding the usage of the provision. It was further recommended to amend the punishment under the section to ensure that it is brought into parity with the other offences under Chapter VI of the IPC.
The Commission also comprises retired Kerala High Court Judge, Justice K.T. Sankaran, Prof. (Dr.) Anand Paliwal, Prof. D.P. Verma, Dr. Niten Chandra and Dr. Reeta Vasishta.
The constitutionality of Section l24A of IPC was challenged before the Supreme Court in S.G. Vombatkere v. Union of India (2022) 7 SCC 433, where the Union of India assured the Court that it was re-examining Section l24A and the Court may not invest its valuable time in doing the same.
While putting the law on hold, the bench headed by the then CJI N V Ramana had ordered that besides lodging fresh FIRs, ongoing probes, pending trials and all proceedings under the sedition law will also be in abeyance. The bench had said the "rigours of Section 124A (sedition) of the IPC is not in tune with the current social milieu", and permitted reconsideration of the provision.
The report dealt with the grounds and objections raised against the law. It also gives an analysis of a comparative study on the provision in different jurisdictions.
Sedition vis-a-vis Free Speech
While citing the relevance of the freedom of speech as a hallmark of a democracy, the report also highlights the importance of the restrictions to the freedom of speech under the Constitution of India.
“The relevance of the offence of sedition provided under Section l24Aof IPC is a subject of continuous and ceaseless debate. Those opposing it see this provision as a relic of India's colonial past. On the other hand, it is argued that amidst growing concerns of national security, this provision provides a reasonable restriction on utterances that are inimical to the security and integrity of the nation. Balancing freedom of expression with collective national interest is one of the key ingredients of this law”, the report says.
“As long as the means adopted by the protesting voices are constitutional and legal, criticism of the government would merely be disapprobation and not disaffection. However, the moment such disapprobation leads to incitement of violence or suggests incitement of violence as the only recourse available, the offence of sedition becomes operative”, the law report further read.
The Law Commission report cites Maoist insurgency led by the CPI (M) having its genesis in Naxalbari areas of West Bengal state in 1967, and Militancy and Ethnic Conflict in the Northeast, and terrorism in Kashmir as threats to India’s internal security. Further provides statistics on the resultant fatalities.
“Similar subversive movements have been given air by different organisations across the country. Banned organisations like the Students Islamic Movement of India (SIMI), Jamat-ul-Mujahideen Bangladesh (JMB), Popular Front of India (PFI), Rehab India Foundation (RIF), Campus Front of India (CFI), All India Imams Council (AIIC), National Confederation of Human Rights Organisation (NCHRO), National Women's Front, Junior Front, Empower India Foundation and Rehab Foundation, Kerala, Indian Mujahideen (an offshoot of SIMI) etc. have been found to be involved in fomenting anti-national leanings within certain sections ofthe lndian populace and indulging in terrorist activities”, the report read.
On Alleged Misuse of Section 124A of IPC
As per the Commission, the alleged misuse of the Section 124A IPC as a ground sought to repeal the provision in its entirety, is majorly on the shoulders of the Police and not the political class. It lays emphasis on the fact that when an FIR is registered, it solely depends on the Police officer’s apprehensions and interpretation.
“ While the political class may be accused of misusing the sedition law, the root of the problem lies in the complicity of the police. Sometimes, in an overzeal to please the political masters, the police action in this regard becomes partisan and not as per the law. Further, the erroneous interpretation of the law on sedition by the police authorities is also what leads to its misuse. The invocation of Section 124A of IPC in any case very much depends on how the police whimsically interprets the language of this provision and the bearing that the alleged committed act has on public order”.
The report further adds, “…Never has there been any plausible demand to repeal any such laws merely on the ground that they are being misused by a section of the populace. This is so because for every abuser of that law, there might be ten other genuine victims of any offence who direly need the protection of such a law”.
Grounds for Retaining the Law
A. To Safeguard the Unity and Integrity of India
“The ever proliferating role of social media in propagating radicalisation against India and bringing the Government into hatred, many a times at the initiation and facilitation by adversarial foreign powers, all the more requires such a provision to be present in the statute”, the report read.
B. Sedition is a Reasonable Restriction under Article 19(2)
While citing Constituent Assembly Debates and the original intention, and the Kedar nath judgment, the Commission was of the opinion that there are multiple reasons why Sedition is a Reasonable Restriction under Article 19(2) of the Constitution of India.
C. Existence of Counter-Terror Legislations does not Obviate The Need for Section l24A
While UAPA is a special law dealing with activities of a terrorist or subversive nature, NSA is a law only dealing with preventive detention. Generally speaking, special laws and anti-terror legislations dealing with national security such as these seek to prevent or punish the commission ofoffences targeted towards the State. On the other hand, Section l24A of IPC seeks to prevent the violent, illegal, and unconstitutional overthrow of a democratically elected govemment established by law. Hence, the existence of the former does not by implication cover all elements ofthe offence envisaged under Section 124A of lPC.
D. Sedition being a Colonial Legacy is not a Valid Ground for its Repeal
As per the grounds raised to repeal the law, the primary reason stated was that the provision had its roots in the colonial legacy that was used against the India’s freedom fighters.
“…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. The colonial origins of a law are by themselves normatively neutral”, the Commission said in the report.
“…However, people are at liberty to indulge in healthy and constructive criticism of their government in a democratic set-up. What Section l24A of IPC seeks to penalise is only the pernicious tendency to incite violence or cause public disorder in the guise of exercising right to freedom of speech and expression”, it further added.
E. Realities Differ in Every Jurisdiction
It also stipulates that each region has its own difficulties, therefore, regions and their respective laws cannot be compared with.
Suggestions and Recommendations
The Commission has inter alia suggested that a mandatory recourse similar to as provided under Section 196(3) CrPC should be undertaken prior to registration of a FIR with respect to commission of an offence under the section.
It further recommended proposal for Amendment in Section I 24A of IPC. The new recommendations are in the Section 124A and the Explanation 4 of the said section.
“124A. Sedition.-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 o term which may extend to seven years, to which fine may be added, or with fine.
Explanation 4.-The expression "tendency" means mere inclination to incite violence or cause public disorder rather than proof of actual violence or imminent threat to violence.”
In Kedar nath judgment, the Constitution bench while striking a balance between the right to free speech and expression and the power of the legislature to restrict such right, upheld the constitutionality of the provision, it had observed:
" ...the security of the State, which depends upon the maintenance of law and order is the very basic consideration upon which legislation, with view to punishing offences against the State, is undertaken. Such a legislation has, on the one hand, fully to protect and guarantee the freedom of speech and expression, which is the sine qua non of a democratic form of Government that our Constitution has established. ... But the freedom has to be guarded against becoming a licence for vilification and condemnation of the Government established by law, in words, which incite violence or have the tendency to create public disorder. A citizen has a right to say or write whatever he likes about the Government, or its measures, by way of criticism or comment, so long as he does not incilt people to violence against the Government established by law or with the intention of creating public disorder. "