7 PM | Should the sedition law be scrapped?| 6th March 2020

Context:Sedition Act in Indian Penal Code (IPC).

More in news:

• On March 2, a 43-year-old man was charged with sedition after he allegedly chanted pro-Pakistan slogans before the mini Vidhan Soudha at Kundapur in Karnataka’s Udupi district.
• Last month, the police arrested a school principal and a parent in Bidar, Karnataka, for an allegedly seditious and inflammatory play against the Citizenship (Amendment) Act (CAA).
• Over the last few months, many people protesting against the CAA have been charged with sedition across the country.

Sedition Law:

• Section 124A in The Indian Penal Code deals with Sedition.
• The law makes “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” punishable by law, a fine and a maximum punishment of life imprisonment.
• Drafted by Thomas Macaulay, it was introduced in the 1870s, originally to deal with “increasing Wahabi activities between 1863 and 1870 that posed a challenge to the colonial government”.
• In the 19th and early 20th Centuries, the law was mainly used against Indian political leaders seeking independence from British rule.
• Mahatma Gandhi, who was charged with sedition, famously said the law was “designed to suppress the liberty of the citizen”.
• Punishment under 124A: Sedition is a cognisable, non-compoundable, and non-bailable offence, under which sentencing can be between three years to imprisonment for life. A person charged under this law can’t apply for a government job. They have to live without their passport and must present themselves in the court as and when required.
• The most famous victim of Sec 124A, tried in 1897, was Lokmanya Tilak for his writings in his newspaper Kesari. He was sentenced to prison, as was Mahatma Gandhi for his writings in Young India. Such cases reinforced the perception that this law was for muzzling freedom of speech and expression, and browbeating government’s critics and activists.
• In 1962, the Supreme Court imposed limits on the use of the law, making incitement to violence a necessary condition.

National Crime Records Bureau (NCRB) data on Sedition Law:

• The National Crime Records Bureau (NCRB), though, has only been collecting separate data on sedition cases since 2014. In 2014, there were 47 cases of sedition but that number increased to 70 in 2018.
• Data from the National Crime Records Bureau (NCRB) show that 194 cases of sedition have been filed since the CAA was passed on December 11, 2019. More cases of sedition have been filed since December 11 than in the last three years put together, according to NCRB data.
• However, the data also show that while the number of sedition cases filed has been going up every year (numbers for sedition cases started being recorded from 2014) in the last four years, only four cases actually resulted in conviction. 

Sedition laws in international jurisdiction:

• The United Kingdom deleted the seditious libel through the Coroners and Justice Act, 2009.
• In Australia, following the recommendations of the Australian Law Reform Commission (ALRC) the term sedition was removed and replaced with references to ‘urging violence offenses’.

Arguments in support of Section 124A:

• Section 124A of the IPC has its utility in combating anti-national, secessionist and terrorist elements
• It protects the elected government from attempts to overthrow the government with violence and illegal means. The continued existence of the government established by law is an essential condition of the stability of the State
• If contempt of court invites penal action, contempt of government should also attract punishment
• Many districts in different states face a Maoist insurgency and rebel groups virtually run a parallel administration. These groups openly advocate the overthrow of the state government by revolution
• Against this backdrop, the abolition of Section 124A would be ill-advised merely because it has been wrongly invoked in some highly publicized cases

Arguments against Section 124A:

• Section 124A is a relic of colonial legacy and unsuited in a democracy. It is a constraint on the legitimate exercise of constitutionally guaranteed freedom of speech and expression.
• Dissent and criticism of the government are essential ingredients of robust public debate in a vibrant democracy. They should not be constructed as sedition. Right to question, criticize and change rulers is very fundamental to the idea of democracy.
• The British, who introduced sedition to oppress Indians, have themselves abolished the law in their country. There is no reason, why should not India abolish this section.
• The terms used under Section 124A like ‘disaffection’ are vague and subject to different interpretation to the whims and fancies of the investigating officers.
• IPC and Unlawful Activities Prevention Act have provisions that penalize “disrupting the public order” or “overthrowing the government with violence and illegal means”. These are sufficient for protecting the national integrity. There is no need for Section 124A.
• The sedition law is being misused as a tool to persecute political dissent. A wide and concentrated executive discretion is inbuilt into it which permits the blatant abuse.
• In 1979, India ratified the International Covenant on Civil and Political Rights (ICCPR), which sets forth internationally recognized standards for the protection of freedom of expression. However, misuse of sedition and arbitrary slapping of charges are inconsistent with India’s international commitments.

Different viewpoints:

• Jawaharlal Nehru said, “The sooner we get rid of it the better”.
• Law Commission of India:
  • In August 2018, the Law Commission of India published a consultation paper recommending that it is time to re-think or repeal the Section 124A of the Indian Penal Code that deals with sedition.
  • In its 39th Report (1968), the Law Commission had rejected the idea of repealing the section.
  • In its 42nd Report (1971), the panel wanted the scope of the section to be expanded to cover the Constitution, the legislature and the judiciary, in addition to the government to be established by law, as institutions against which ‘disaffection’ should not be tolerated.
  • In the recent consultation paper on the sedition, the Law Commission has suggested invoking 124A to only criminalize acts committed with the intention to disrupt public order or to overthrow the Government with violence and illegal means.
• Supreme Court:
  • The constitutionality of sedition was challenged in the Supreme Court in Kedar Nath Vs State of Bihar (1962). The Court upheld the law on the basis that this power was required by the state to protect itself. However, it had added a vital caveat that “a person could be prosecuted for sedition only if his acts caused incitement to violence or intention or tendency to create public disorder or cause disturbance of public peace”.
  • The court held that “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 incite people to violence against the Government established by law or with the intention of creating public disorder”.
  • In September 2016, the Supreme Court had reiterated these necessary safeguards and held that they should be followed by all authorities.

Way Forward:

• Role of National Human Rights Commission: When a person start criticising the constitutional state of India, that is when he/she invites the charge of sedition and even there the Supreme Court clearly says that there has to be a direct incitement to violence. So, sedition is a very specific and a very serious offence, and when it is used to silence and terrorise the ordinary citizen who is raising a grievance, it is terrorism by the state. The National Human Rights Commission is duty-bound to map all these misuses of the sedition law. It should make the Commissioner of Police of that State personally responsible.
• Role of Judiciary:
  • It falls on the judiciary to protect Articles 19 and Article 21 of the Constitution. The time has come for the judiciary to set up a search committee in every State, and a particular judge of the High Court has to suo moto check each sedition case being filed. And if it is baseless, if it has been used to only terrorise the ordinary citizen expressing his views, it must be quashed without putting the onus on the citizen to come to the court.
  • Recently, Justice Kurian Joseph  made some anguished remarks that the police is neither independent nor professional. So, it is the judiciary that has been charged with the job to stop such politicisation of Police. Our legal aid system is just not as robust as it should be. The problem is not with the section, but with its abuse.
• Role of Parliament:
  • It is only Parliament that revoked a law like POTA [The Prevention of Terrorism Act, 2002], which was draconian and flagrantly misused. All these laws have always been upheld by the judiciary. It is only the parliamentarians, when they get a push from the public, who swing into action. 
  • A strong will of Parliament holds the key to get rid of this draconian colonial era law that has been used only to suppress the dissent.

Conclusion:

India is the largest democracy of the world and the right to free speech and expression is an essential ingredient of democracy. Dissent is the lifeblood of democracy. But today when the stench of fascism looms large, exercising this constitutional right can get one branded as anti-national, thrown behind bars or a lynch by mob waiting outside to teach you a lesson. Clearly, dissent, criticism of government, questioning politicians, all of which are fundamental to a democracy, have come to be treated as sedition by the police and a section of the magistracy in the prevalent political order. Such terrorising of critics and protesters endangers the very idea of democracy. A law that has especially come in handy for the self-proclaimed nationalists of our times to suppress dissent is the archaic colonial era sedition law.Source: https://www.thehindu.com/opinion/op-ed/should-the-sedition-law-be-scrapped/article30993146.ece