Recent charges of sedition [IPC Section 124A] against individuals have brought the focus back to a law introduced in the Indian Penal Code in 1870.
The fact that this law is often used to control dissent calls for a relook into its relevance at the present age.
What was the Supreme Court’s observation?
In Kedar Nath Singh v. State of Bihar (1962), the Supreme Court upheld the constitutional validity of the sedition law.
It noted it as being a reasonable restriction on free speech as provided in Article 19(2) of the Constitution.
It made clear that a citizen has the right to say or write whatever she/he likes about the government, or its measures.
But this is only as long as she/he does not incite people to violence against the government and not do things with the intention of creating public disorder.
What are the legal procedures to be followed?
Following the Kedar Nath case, the Bombay High Court issued some guidelines in the case of cartoonist Aseem Trivedi.
The police must follow these guidelines prior to invoking the provisions of sedition.
These include, among others, an objective evaluation of the material.
This is to form an opinion on whether the words and actions cause disaffection, enmity and disloyalty to the government.
They must be of the magnitude to incite violence or tend to create public disorder.
The Court also directed obtaining a legal opinion in writing from a law officer of the district who must give reasons on how the pre-conditions are met.
This needs to be followed by a second opinion from the State’s public prosecutor.
Courts have on numerous occasions cautioned law enforcement agencies not to misuse the provisions on sedition, and follow court directions.
Why is a relook on the law needed?
Regrettably, the above guidelines are grossly ignored.
Notably, between 2016 and 2019, the number of cases of sedition under Section 124A increased by 160%.
On the other hand, the rate of conviction dropped to 3.3% in 2019 from 33.3% in 2016.
To note, many charged were individuals protesting government action.
The Constitution Bench in Kedar Nath held that this falls outside the ambit of sedition.
A Constitution Bench upheld the vires of the law of sedition.
But the gross misuse of the legal provisions continues.
The circumstances thus require a complete relook at the provisions of the sedition law.
A lot has changed from 1962 when the Kedar Nath case was decided.
In the Internet age, what can lead to public disorder has itself become debatable, as information travels at lightning speed.
Even otherwise, clutching on to a foreign legal order is no longer needed.
Interestingly, the U.K. repealed the offence of sedition in 2010 and India is holding onto a relic of the British Empire.
As recent as 2018, the Law Commission of India too questioned how far it is justified to retain Section 124A.
This was especially in view of the fact that several existing statutes take care of various actions which were earlier considered seditious.
Moreover, the sedition law necessitates the courts to adopt an effect-based test.
It examines the effects of the seditious text rather than a content-based test which reviews the text alone. This seems to be flawed.
What is the way forward?
It is not the alleged seditious acts that are creating fragments in the society.
It is rather the persecution of individuals and labelling them that are really creating cracks in the socio-politico ecosystem.
While the sedition law needs a relook, the need of the hour is to uphold more firmly the principles of justice, liberty, equality and fraternity, and offer space for healthy dissent.
