With redefining bid, sedition law may get even more draconian
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With redefining bid, sedition law may get even more draconian

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A year ago the Supreme Court had placed a moratorium on filing of any fresh cases under Section 124A of the Indian Penal Code (IPC) and suspended all continuing investigations in which sedition charges had been invoked.

Now, the Law Commission of India, in its 279th report that has been submitted to Union Law and Justice minister Arjun Ram Meghwal, has not just batted for keeping the draconian sedition law on the statute book but also argued stridently for making the colonial-era legislation more stringent.

Relying heavily on a selective reading of judicial pronouncements in cases of sedition and devoid of any qualitative analysis of the rampant misuse of Section 124A, the commission’s report appears to further the Narendra Modi government’s pernicious agenda of using oppressive laws to crack down on civil liberties and free speech.

The report, titled ‘Usage of the Law of Sedition’, makes brief but portentous recommendation on redefining sedition and the punishment it should warrant. On both these counts, the law panel headed by Justice (retired) Ritu Raj Awasthi zealously precipitates narratives and justifications that are brazenly in sync with those routinely offered by the BJP and its cheerleaders in defence of the sedition law or its more tyrannical iterations under so-called anti-terror laws such as the UAPA and the NSA.

Also read: Law commission wants sedition law retained, suggests safeguards to prevent misuse

‘Tendency test’

Under the guise of correcting an oddity in the law, the panel recommends that the current definition of sedition under Section 124A be expanded further to include a ‘tendency test’. In addition to the existing definition, which relies on “words, either spoken or written… signs… visible representation” as grounds to establish the charge of sedition, the law panel now wants even the “tendency to incite violence or cause public disorder, or otherwise”, to attract the charge of Section 124A. The commission has defined “tendency” as, “mere inclination to incite violence or cause public disorder rather than proof of actual violence or imminent threat to violence”.

Further, arguing that the gap between maximum (life sentence) and minimum (three years) period of incarceration prescribed under the current law are “odd”, the panel seeks to rectify the so-called anomaly by amending the punishment criteria to “imprisonment for life, to which fine may be added, or with imprisonment of either description for a term which may extend to seven years, to which fine may be added, or with fine.”

Questionable ‘procedural safeguards’ 

In the name of introducing “procedural safeguards” against misuse of the sedition law, the panel makes an evidently ham-handed recommendation of adding the proviso that no FIR for an offence of sedition must be registered unless the Centre or the state government concerned is in receipt of a report of “preliminary inquiry” made by an Inspector-rank police officer to ascertain whether, prima facie, cogent evidence exists to slap the charge against the accused person.

While the recommendations of the panel are, by themselves, viciously ambiguous and can be exploited widely by any oppressive regime intolerant of free speech and dissent, several of the observations made by the commission in the report are even more unsettling.

Restrictive interpretation of Section 124A, SC observations

It has been a fairly well settled principle in jurisprudence, as outlined by a catena of judgments by the Supreme Court and high courts, that interpretations of laws that seek to place restrictions on fundamental rights and civil liberties must be expansive. The law panel seeks to reverse this maxim through its largely restrictive interpretation of Section 124A, the Constituent Assembly debates concerning it as well as the Supreme Court judgments, including in Kedar Nath Singh, S. Rangarajan, Balwant Singh, Bilal Ahmed Kaloo and Vinod Dua – all of which dealt with either the constitutionality of the sedition law or its application.

Shockingly, the commission even takes a restrictive view of the Supreme Court’s observations in S.G. Vombatkere – the case which forced the apex court to place all ongoing investigations under the sedition law and further application of Section 124A in new cases under abeyance – which had explicitly held: “the rigours of Section l24A of IPC were not in tune with the current social milieu, and were intended for a time when this country was under the colonial regime”.

Also read: Sedition cases against state: Assam tops NCRB list; Andhra next

The law panel seeks to exponentially increase the ambit of the “reasonable restriction” clause that was weaved into Article 19 (freedom of speech and expression) of the Indian Constitution.

“The fundamental right to speech and expression in India is not only subject to the eight reasonable restrictions stipulated under Article 19 (2), but it can also be suspended during Emergency under Article 358 of the Constitution… the entire objective of imposing one after another reasonable restrictions on the freedom of speech and expression… was to primarily safeguard the sovereignty, territorial integrity and security of India as well as securing the interest of public order,” the report states.

 Proposal to nip dissent in the bud

A tiny example of the scope of use (or misuse) that the law panel seeks to vest in the application of the sedition law can be gauged from the following observation made in the report: “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. Section 124A of IPC has its utility in combating anti-national and secessionist elements as it seeks to protect the elected government from attempts to overthrow it through violent and illegal means… it becomes imperative to retain Section l24A and ensure that all such subversive activities are nipped in their incipiency.”

Also read: With Sedition Act on hold, some other archaic laws that need a re-look

If the Centre were to accept this rationale offered by the Law Commission and read it alongside the ‘tendency test’ clause that proposes sedition can be slapped even in the absence of “proof of actual violence or imminent threat to violence”, it wouldn’t be too difficult to imagine the floodgates of persecution and prosecution that would be opened against those merely critical of the government even on social media.

Misreading of judgments?

What is also evidently mischievous of the panel is the manner in which it has read new meaning into the interpretation of the apex court’s Kedar Nath Singh, the first case in which the constitutionality of sedition was challenged. Noted civil rights lawyer Colin Gonsalves concedes that an anomaly existed in Kedar Nath Singh but adds that the law commission has now sought to exploit that anomaly to allow the State to brazenly slap Section 124A against those it seeks to persecute.

“In Kedar Nath, the SC, after testing sedition against Article 21 (Right to Life and Liberty), had correctly concluded that a literal interpretation would conclude that words without violence do not come within the ambit of the exceptions to free speech listed under Article 19 (2)… The mistake in Kedar Nath was that after concluding that the section was unconstitutional, instead of striking down the Section 124A, the court merely declared that sedition would be read as if it included a requirement that the words uttered by the accused should be followed by violent action against the State,” Gonsalves said.

Also read: Sedition law colonial, when will you repeal it? SC asks Centre

The law panel now does away with even that requirement of words being followed by action as laid down in Kedar Nath by concluding erroneously that Section 124 was “constitutional as the restriction it sought to impose on the freedom of speech and expression was a reasonable restriction under Article 19 (2)”.

The Supreme Court’s decision in Balwant Singh, perhaps, plainly explains the damage that adoption of the law panel’s amended definition of sedition into the statute would wreak on those accused of the charge. In Balwant Singh, the accused person had raised “Khalistan Zindabad” slogans and urged the Sikh community to rise up and fight for a separate state within India.

When Singh’s appeal against his conviction on the charge of sedition charge came before the Supreme Court, the judges made a simple enquiry – had the accused carried out any violent act or was his call for a separate Khalistani state a mere slogan. The court was informed that no violent act was carried out and the accused was subsequently acquitted.

Interestingly, the law panel’s report mentions how the Supreme Court had, in Balwant Singh, held that “mere casual raising of slogans a few times against the State without any overt act, which neither evoked any response nor any reaction from anyone in the public, does not attract the provisions of Section l24A of IPC”. Yet, what the panel has recommended is the antithesis of the apex court’s finding.

Also read: From Disha Ravi to Arundhati, Supreme Court sedition law stay to impact several high-profile cases

Misuse of sedition law doesn’t warrant its repeal, says report

What is even more perplexing is that the commission has made its recommendations despite noting, in some detail, how rampant the misuse of Section 124A has become, particularly since Narendra Modi became Prime Minister, and after acknowledging that the law has been used by political masters of the day to target their rivals and been applied “erroneously” and in a “partisan” manner by the police “to please the political masters”.

“As per the data furnished by the National Crime Records Bureau (NCRB), 399 sedition cases have been filed across the country, including a high of 93 in 2019, 73 in 2020 and 76 in 2021. Of the 322 cases filed between 2016 and 2020, chargesheets were filed in 144 of them, with as many as 23 cases being found to be false or a mistake of law and 58 cases having been closed for lack of evidence. Over the years, the conviction rate in sedition cases has fluctuated between 3 per cent and 33 per cent,” the report states.

Despite all this, the commission says, “any allegation of misuse of this provision does not by implication warrant a call for its repeal”. This conclusion by the panel is based on a rather capricious argument – “there are plethora of examples of various laws being misused by ill-intentioned individuals… Never has there been any plausible demand to repeal any such laws merely on the ground that they are being misused”.

Treacherous development: Congress

The BJP’s principal political rival, the Congress party, which has had its own notorious past of misusing the sedition law but has, since the 2019 Lok Sabha polls, backed demands for repealing Section 124A, has dubbed the law commission’s report as a “terrible, tragic, and treacherous development”.

Congress leader Abhishek Manu Singhvi, who as a senior advocate in the Supreme Court has argued in several landmark cases against the application of the sedition law, said, “the Law Commission proposal makes the existing sedition law far more draconian, invasive and prejudicial… it ignores the spirit of the Supreme Court proceedings in May and October last year which rendered sedition inoperative and clearly intended it to be repealed”.

Also read: We respect court…but Lakshman Rekha must not be crossed: Rijiju on sedition law

Singhvi said the Congress and its like-minded Opposition parties would strongly oppose any changes to the sedition law based on the Law Commission report, as and when these are brought before Parliament by the Centre. Alleging that the Law Commission’s report has been prepared in connivance with the BJP-led central government, Singhvi said that the panel’s recommendations signal that the BJP intends to “perpetuate a looming threat to freedom of speech, thought, and action” and has “obliquely declared its clear intent to continue its selective and partisan misuse of this law against political dissent”.

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