Opinion Kapil Sibal writes on Law Commission’s sedition recommendations: Silencing what’s left of dissent

The government’s position has always been that the law in Kedar Nath Singh versus State of Bihar (1962), correctly upheld the constitutional validity of section 124A, and there was no need to reconsider it. For the Law Commission now to recommend the imposition of harsher punishments and make the law even more vague and discretionary, in the light of the proposed explanations, is most unfortunate.

Second, section 124A was incorporated into the IPC in 1870. It imposed a life sentence on “those who by words, either spoken or written or by signs, visible representation or otherwise brought or attempted to bring hatred or contempt or excited or attempted to excite disaffection” towards the colonial government. This section, therefore, was intended to criminalise dissent. In 1897, Bal Gangadhar Tilak was prosecuted for sedition for his views published in Kesari, a Marathi newspaper published by him. Tilak had argued that “in Europe, the actions of Caesar, Napoleon and French revolutionaries were seen as necessary agents of progress whereas the native subject’s radicalism, in India, was reduced to mere savagery, a sign of his primitiveness”. Protests were thus seen as attempts to destabilise the despotic rule despite being peaceful. Dissent and agitation for self-rule were seen as breeding contempt towards the established order.

After Tilak’s trial in 1898, the law was amended by giving discretion to the judge to impose a punishment of life imprisonment or imprisonment that may extend to three years or with a fine. The idea was that those who repented would be let off with a fine, while others, depending on the nature of criticism and its impact, as perceived by the colonial power, would either be sentenced to imprisonment for three years or with a fine.

Since India became a Republic, the citizens of our country have the constitutional right, in fact, the fundamental right, to criticise the government by speech, signs, representations or otherwise, to protest peacefully and to expose government policies and actions. The provisions of section 124A, which allow for prosecution of those who protest against the government on grounds, inter-alia that such actions by way of speech or otherwise bring hatred, contempt or amount to exciting disaffection towards the government are antithetical to the foundations of our Republic.

A conceptual confusion seems to have crept into the Law Commission with its recent recommendations. It has not quite understood the difference between criticism of the government and acts against the State, which is punishable under different legislative enactments. Even Article 19 of the Constitution allows for the freedom of speech and for the State to impose, by law, reasonable restrictions for acts, which are prejudicial to the security of the State, public order, decency, morality, sovereignty and integrity of India or acts involving incitement of an offence. The Law Commission seems to have glossed over this conceptual perspective.

Apart from this, existing laws deal with acts of individuals, which allow for preventive detention and imposition of restrictions under Section 144 of the Code of Criminal Procedure, 1973 on those who, through violent means, seek to threaten the unity and integrity and security of India or act with intent to strike terror or likely to strike terror amongst people by using criminal force or otherwise.

In the recent past, especially from 2014 onwards, the sedition law has been used to silence journalists, academics, political opponents, and students, including minorities in particular, who seek to raise issues of national concern. The recommendations of the Law Commission are intended to silence even the limited opposition and protests against the unilateral and unjust policies of the government.

These recommendations seek to make sedition law even more draconian. Even a tendency or a mere inclination to incite violence or cause public disorder rather than proof of actual violence or imminent threat of violence can come within the ambit of sedition. This gives enormous discretionary powers to a police officer to target individuals by concluding that their acts tend to cause public disorder.

One can ask whether students, journalists or academics who are entitled to organise protests, dharnas and the like, can, at all, be prosecuted for embracing non-violent, legal, constitutional means to protect the foundations of our Republic. Criticism of the government, in the absence of embracing violent means, is constitutionally permissible. Any act against the State with intent to destabilise it or its institutions, and create terror amongst the people by using violent means, is certainly punishable and must be so. But without any protest against governments, there can be no progress.

These regressive recommendations of the Law Commission are intended to silence even the limited voices of dissent against the government. Though the British have done away with the law, its law commission recommending the abolition way back in 1977, we seem to embrace it with even more stringent provisions for the emperor does not like dissent.

The writer is a senior advocate and former Union minister