This is an archive article published on June 6, 2023

Opinion Express View on Law panel’s recommendations on sedition law: Stepping backwards

In polarised times, when the spaces for freedom of expression and the right to dissent seem imperilled, the law on sedition is too fraught and consequential to remain riddled with a lack of clarity

Law panel's recommendations on sedition law, OBC, UAPA, Law Commission of India, section 12A, indian penal code, indian express, indian express news

In its 88-page report, the law panel lists reasons for retaining the law – as a reasonable restriction on free speech, and as a necessary legal instrument in the face of threats to India’s internal security. (Express Photo)

By: Editorial

June 6, 2023 06:10 AM IST First published on: Jun 6, 2023 at 06:10 AM IST

The Law Commission of India recommended last week that Section 124A of the Indian Penal Code, the 130-year-old provision that defines and punishes sedition, must not only be retained but also strengthened with enhanced punishment. This recommendation is a step backwards. After all, it comes nearly a year after the Supreme Court had stayed operation of the law — in May 2022, the Court expressed strong reservations and indicated that it would hear arguments in favour of striking down the colonial provision that has proved to be prone to misuse by governments that seek to cramp citizens’ freedom of expression.

The report quotes National Security Advisor Ajit Doval on wars against invisible armies, and on a “civil society” that can be “subverted, divided and manipulated to hurt the interest of the nation”. That formulation, which pits “civil society” against “nation”, raises serious questions in an open democracy that the panel does not ask. Nor does it engage seriously enough with criticism of the sedition provision, including concerns expressed by the Supreme Court. The panel dismisses apprehensions about the colonial-era law going against the spirit of a modern democracy in a polemical and sweeping manner: “The entire framework of the Indian legal system is a colonial legacy”, it says.

It sidesteps the fact that while the offence continues to have a place in India’s statute book, Britain itself repealed the law in 2009, by saying: “Realities differ in every jurisdiction.” On allegations of misuse, the panel exonerates the law, and passes on the blame — the “root of the problem lies in the complicity of the police”, it says. Its key recommendation is to include SC guidelines in the landmark ruling in Kedar Nath Singh vs State of Bihar (1962) in Section 124A. While upholding its constitutionality, the SC had restricted seditious speech to that which tended to incite “public disorder”, a phrase the provision does not contain but was read into it by the Court. The panel now recommends inclusion in Section 124A of the words “tendency to incite violence or cause public disorder” and further defines it as “mere inclination to incite violence or cause public disorder rather than proof of actual violence or imminent threat to violence.” While this is aimed at addressing vagueness in the provision, the words “tendency” and “inclination” are also over-broad and vague.

After initially defending the law, the Centre had told the Court last year that it would review it. Referring to the Prime Minister’s views on shedding colonial baggage as the country marks 75 years of Independence, the Union Home Ministry in an affidavit asked the SC to defer the hearing till it is reviewed by a “competent forum.” While the law panel’s suggestion is a crucial layer in the conversation, Parliament must now step in. The Supreme Court, too, must finish what it started. Especially in polarised times when the spaces for freedom of expression and the right to dissent seem imperilled, the law on sedition is too fraught and consequential to remain riddled with a lack of clarity.