Opinion Law Commission’s sedition report: Opaque process, regressive recommendations

The 22nd Law Commission ignores issues raised by various Supreme Court judgments. The amendments it suggests would make the sedition law more draconian

Even though the report attempts to assist the government, it does not redress even a single issue raised in the constitutional challenge to section 124A. (Representational)

Chitranshul Sinha

June 3, 2023 04:28 PM IST First published on: Jun 3, 2023 at 04:28 PM IST

The 22nd Law Commission submitted its report on the sedition law on May 24 to the law ministry, providing its recommendations on amending section 124A of the IPC. Earlier, the 21st Law Commission in August 2018 had published a consultation paper seeking public views on the sedition law. The Commission in the consultation paper stated that every irresponsible exercise of the right to free speech and expression cannot be termed seditious in a democracy. It felt that sedition law should not be misused to curb free speech because dissent and criticism are essential ingredients of a vibrant democracy.

Therefore, the Commission framed various propositions dealing with continuation, repeal and amendments to section 124A IPC. It invited views from civil society, legal experts and even the government and general public, on the propositions to enable it to recommend appropriate measures to the government. The term of the 21st Law Commission ended immediately thereafter, and the next law commission was constituted only in November 2022.

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In the meantime, various constitutional challenges to the sedition law were filed in the Supreme Court, which put the law in abeyance in May 2022 on the grounds that the central government was reexamining it.

In this background, the 22nd Law Commission has now recommended that the provision should be amended to purportedly incorporate the Supreme Court’s 1962 judgment in Kedar Nath Singh vs Bihar, which held that the provision can only be invoked in cases where alleged seditious acts lead to, or tend to lead to, violence or public disorder. However, the suggested text of the amendment is broader and, if accepted, would lead even the mere tendency to incite violence to be punishable even if no such violence or disorder is ever caused. This would make the law more draconian than its current form.

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This recommendation is also contrary to the 1987 judgment of the Supreme Court in Balwant Singh vs Punjab where it held that mere words or slogans against the State which do not lead to violence cannot lead to invocation of section 124A IPC. The Commission has, interestingly, taken cognisance of the judgment and other cases where the principle was reiterated by the Supreme Court. Despite that, it has ignored the settled law and suggested a contrary language. This by itself should be reason enough to reject the report.

Even the suggested change in punishment does not do anything to resolve its ambiguity, which is one of the grounds in the pending challenges before the Supreme Court. Even though the report attempts to assist the government, it does not redress even a single issue raised in the constitutional challenge to section 124A. In fact, all these issues have been outrightly rejected despite mounting precedents to the contrary. It does not even consider the impact of the Shreya Singhal judgment (2015) where the Supreme Court held that vague and over-broad offences would be unconstitutional and cannot be considered to be a reasonable restriction on free speech.

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The report does not analyse whether the law suffers manifest arbitrariness, and the precedents on free speech subsequent to the Kedar Nath judgments have been completely ignored. In fact, whether Kedar Nath is a correct judgment or not, as it read down the law without even testing it on arbitrariness, has not been looked into by the Commission.

Interestingly, though one had a copy of the August 2018 consultation paper, it could not be found on the Law Commission’s website at the time of writing this. The report claims that it had received various suggestions from the public and legal experts in response to the consultation paper having been published on its website, but none of that is laid out in the report. The Home Ministry did not even send its suggestions so the Commission had to apparently rely on private consultations with unnamed (barring one) experts and “stakeholders”.

The Commission could have avoided opacity in the process, or at least could have invited views by publication in national and regional newspapers instead of simply claiming to publish the consultation paper on its website. The right to provide recommendations should not be restricted to English-speaking internet users. Even that may be too much to expect.

Chitranshul Sinha, Advocate-on-Record of the Supreme Court of India, is the author of The Great Repression — the story of Sedition in India