It is the outcome of a rather one-sided view of free speech law in India. Respectfully, it should not form the basis of any reasoned opinion of the court.
The 22nd Law Commission has recommended that Section 124 A of the Indian Penal Code (IPC) dealing with the offence of sedition be retained and that the minimum jail term for the offence be enhanced from three years to seven years. This could clearly be a device to serve the interest of the Centre, which might want its retention for political reasons rather than administrative exigencies.
Background:
The Supreme Court, in an unprecedented move, via its order dated May 11, 2022, forbade the use of the impugned provision and the use of coercive measures based on it.
An affidavit filed by the Centre before the Court said that the Prime Minister was of the opinion that “we need to, as a nation, work even harder to shed colonial baggage that has passed its utility, which includes outdated colonial laws and practices”.
The affidavit further said that the government “has decided to re-examine and re-consider the provision of Section 124A of the IPC”.
Expectations:
One expects the Law Commission to take positions in the larger interests of the country and to persuade the government to follow constitutional principles in the process of making and unmaking laws. The present report does not do that. It does the opposite.
Outcome:
The Law Commission’s report is neither well researched nor balanced. On the contrary, it is partisan and can have a devastating impact on the very idea of human rights in India.
When the Supreme Court is seriously considering the question of whether the judgment in Kedar Nath Singh vs State of Bihar (1962), which upheld the provision, requires to be revisited, the Commission had a duty to be more responsible and up to date.
According to the Law Commission, the threats to India’s internal security are real whereas the misuse of Section 124A is only alleged. This view is not only unrealistic but distorted. The fact is that the Supreme Court has been appraised of the long saga of the law’s misuse with illustrative instances. In fact, the journalist Sashi Kumar has listed persons who were booked under the anti-sedition provision, such as Disha Ravi, an activist, the journalist Vinod Dua, the filmmaker Aisha Sultana, Amulya Leona, a student, and so on. The law was ruthlessly used to book activists during the anti-CAA protest and in the agitation against the now-repealed farm laws.
The Commission’s recommendation, if accepted, will make the law even harsher. The report, in the guise of “removal of oddity in punishment”, calls for enhancing the minimum term of imprisonment for the offence.
Curiously, the Commission has no problem with the text of the law, which is vague and abstract, with inherent potential to trap the innocent. As a result, if these recommendations are accepted, Section 124A will remain draconian by penalising “disaffection” with the government, which would include “disloyalty”. This would mean that any opposition to the government could be labelled seditious, as during the inception of the law in 1870.
Safeguards and misuse of law
The ‘safeguards’ now prescribed cannot curtail the law’s misuse. The suggested clause for previous permission by the government for registration of an FIR based on a preliminary enquiry report by an Inspector of Police is vulnerable to political pressure.
Even with such clauses, it is for the political executive and the police officers who act under them to decide whether an act involved any such incitement. The term public disorder is overbroad and elastic.
More significantly, the report does not consider the fact that there are provisions right in the IPC dealing with offences against the State. They include Sections 121,121A, 122 and 123, all of which deal with the offence of waging war against the government or related activities.
The report distinguishes between the text of the Unlawful Activities (Prevention) Act (UAPA) and Section 124A of the IPC to say that the latter is necessary despite the existence of the former. The cardinal point is that the above stated provisions in the IPC literally and practically take in any serious attempt to sabotage the elected government, which in turn would meet the genuine requirements of the state. The Report does not deal with this aspect at all.
The components of the law on sedition as stated by the Commission are clearly different from the text of section 124A. Such ingredients are traceable in the other IPC provisions, as aforesaid. This part of the report is casual, to say the least.
There are also instances of strange comparisons in the document. For endorsing the law’s legitimacy, the Commission compares the colonial law with the police force and the idea of civil services in India, which were established by the British. The logic seems to be that anything colonial need not be unacceptable.
Conclusion:
After receiving criticism from all corners, the government reacted promptly, with law minister Arjun Ram Meghwal tweeting. The Law Commission report on sedition is one of the steps in the extensive consultative process. The recommendations made in the report are persuasive and not binding. Ultimately, the final decision will be taken only after consulting all stakeholders. Now that we have received the report, we will hold consultations with all stakeholders so that we take an informed and reasoned decision in public interest.”