Law Commission’s Report on Sedition Ignores Free Speech Law and Indian Colonial History

The Law Commission of India released its 279th Report on ‘Usage of the Law of Sedition”. The Report not only recommends for the retention of the colonial era provision, but also seeks to enhance the prescribed punishment from three years to seven years. Further, in a feeble attempt to add clarity to the law, the Report defines the term “tendency” as a “mere inclination to incite violence or cause public disorder”, thereby undoing years of established jurisprudence on the subject. One aspect which stands out in the Report is the Commission’s dismissal of the contention that sedition law should be repealed as it is a relic of the colonial era. Observing that sedition being a colonial legacy is not a valid ground for its repeal, the Report justifies its usage in the colonial era on the basis that a colonial government is essentially a foreign one which could not afford even harmless criticism. The Report states that Section 124A IPC only seeks to penalise the “pernicious tendency to incite violence or cause public disorder in the guise of exercising right to freedom of speech and expression” and that India is a democracy where people are at liberty to constructively criticise the government in a healthy manner. At first glance, the Report demonstrates the Commission’s abysmal understanding of the “colonial era” as a time period as opposed to colonialism being a system of oppression, how laws are misused in India, and how the provision institutes a chilling effect on freedom of speech and expression.

The Report locates the colonial era as a temporal moment in history, as opposed to a specific social, economic, and political project with subjugation, conquest, and domination as its end goals. This argument is buttressed by a 2016 paper by philosophy professor Arudra Burra that problematizes the idea of the colonial nature of Indian law by asserting that the colonial origin of laws are “normatively neutral”. In associating “colonial” with “authoritarian” or “repressive”, the Report claims that we ignore the monolith nature of the colonial state, and fails to engage with aspects that were independent of the colonial project. Even if that were the case, could sedition really be said to be independent of the colonial project?

According to the Law Commission, it is who wields power that determines how the legal provision for sedition is used— oppressive, in the context of a colonial government; necessary and proportionate in the hands of a democratic government. However, by making a case to retain sedition, it casts doubt on the strength of democracy to withstand criticism. 

In 1892, Calcutta High Court heard the first case to be tried under Section 124A in Queen-Empress v. Jogendra Chunder Bose & Others.  A vernacular newspaper in Bengal, Bangobasi, published an article criticising the British government for raising the age of consent. While the article did not directly call for violence, the Court observed that speech was seditious irrespective of whether it is actually successful in inciting violence or even producing disaffection; what would make speech seditious is its intention to induce disaffection and cause violence. 

This line of reasoning was broadened by Strachey, J. of the Bombay High Court who, in Queen-Empress v. Bal Gangadhar Tilak, rejected the idea that any action had to arise from said disaffection, for speech to be considered seditious. Later judgements in Queen Empress v. Ramchandra Narayan and Queen Empress v. Amba Prasad further delineated the difference between “disaffection” and “disapprobation”, but continued to maintain that inciting “feelings”, even if they did not result in any action, was enough for seditious speech. Unsurprisingly, the charge of sedition was used to suppress the Indian independence movement, a fact which is noted by the Report— charges of sedition were levelled against Tilak, Gandhi, Maulana Azad, and Nehru. While the British government faced threats to its stability from its subjects, the Report justifies retention of sedition law by a democratic government by referring to threats to India’s unity and integrity in the form of internal strife and secessionist sentiments in various States such as Jammu and Kashmir, Punjab, North-East, etc. However, it becomes pertinent to note that the 2022 National Crime Record Bureau (NCRB) statistics indicates an upward trend in sedition cases, especially in States such as Andhra Pradesh, Haryana, and Uttar Pradesh where no internal strife has been reported. 

As per the NCRB, the conviction rate in such cases also remains low, with the rate being 33.3% in 2020, 3.3% in 2019, 15.4% in 2018 and 16.7% in 2017. Many of these cases, such as that of journalist Siddique Kappan who was arrested for reporting on the Hathras rape and murder case, reveal the State’s attempt to stifle criticism that it deems unwanted and potentially a threat to its regime. This is a blatant misuse of the law and is reminiscent of colonial times when any form of dissent was quelled as disaffection towards the government due to the fear of an uprising. To further justify the constitutionality of Section 124A, the Report relies on Kedar Nath Singh v. State of Bihar where its scope had been reduced and a less ambiguous interpretation had been extended to it. The aim therein was to reduce the possibility of any speech amounting to disaffection being termed as sedition. However, the Commission’s recommendation to add Explanation 4 to Section 124A in a bid to define “tendency” undoes years of judicial decisions which have tried to limit the vagueness. By stating that “mere inclination to incite violence or cause public disorder” would be sufficient to amount to sedition, the Report opens the doors to a subjective interpretation of the provision which is more detrimental than the requirements stipulated in the provision as it stands now. In addition to the increased punishment, this subjective interpretation and vagueness invariably leads to a chilling effect because individuals will find it difficult to discern whether any form of grievance that they harbour is capable of being viewed as a mere inclination to cause disturbances. Such a recommendation also goes against the Supreme Court’s decision in Vinod Dua v. Union of India which had employed the proximity test to state that only that form of dissent that results in inciting violence against the State can be said to be sedition. In the face of such an amendment of the provision, the right to free speech and expression becomes a farce. 

The Report’s assertion that a colonial origin of a law does not ipso facto validate the case for its repeal fails to engage with the usage, misuse, as well as the origins of the law. Despite differentiating a colonial government from a democratic government, the recommendation of the Report takes us back to the colonial era with an even more overbroad and stringent provision. There is abject failure on the part of the Commission to appreciate or even consider viewpoints that criticise sedition law. The literature and statistics that have been heavily emphasised in the Report indicate a pre-conceived support for sedition law.

Reports published by the Law Commission hold importance for Courts when the constitutionality or amendment of a law has to be deliberated and a purposive interpretation is sought to be given. These Reports must take into consideration the opinions of all stakeholders involved, and not just push the narrative of the entity that benefits from such an interpretation. Rather than contributing to Indian jurisprudence with a holistic analysis of what sedition law entails, a one-sided and loosely researched Report does more harm than good for all entities involved.

Radhika Roy is an Associate Litigation Counsel at Internet Freedom Foundation. Shilpa Mariam Joseph is a Community Associate at Internet Freedom Foundation, and holds a degree in History from St. Stephen’s College, DU.

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