Law Commission's Recommendations Make Sedition Law More Prone To Abuse : Senior Lawyers

The law of sedition has always been controversial - with governments of all shades and hues generously employing the colonial-era law to clamp down on dissent. The application of this law has become absurdly frightening over the years with journalists, activists, cartoonists, students and even lay persons facing the brunt for being critical of the government. This is hardly a secret. Then, why is it back in the news now? That is because, in an unexpected development, the Law Commission of India, instead of advocating for the complete repeal or, at least, a redefinition of the law of sedition, has recommended for it to be retained on the statute book, with a greatly enhanced scope and punishment.

Historic opportunity to right a wrong has been missed by Law Commission: Rebecca John

“A historic opportunity to right a wrong has been missed,” said Senior Advocate Rebecca John in conversation with Live Law about the 279^th report of the Law Commission on the ‘Usage of the Law of Sedition’.

“The Supreme Court, through various judgements since independence, has expressed its discomfort with the provision and has added multiple caveats for its use. This was the right time…A certain crescendo had been reached. The Supreme Court had taken up the provision and expressed a prima facie view that it needed reconsideration. After all of that, and after multiple judicial pronouncements, for the Law Commission to recommend not only the retention of the sedition law, but its retention with enhanced punishment, is nothing but a case of lost opportunity. It is deeply disappointing. When the UAPA exists and is used to counter terrorist activities, who is Section 124A to be used against? Which constituency, then, will be burdened with this section when a separate counter-terror legislation exists? Obviously people who speak their mind and dissent – the voices the government wishes to silence.”

About the introduction of the fourth explanation, the senior counsel said, “This is incomprehensible. They are trying to introduce a new concept called ‘tendency’ and they have attempted – rather clumsily – to define it. Which police officer is going to understand this? This makes it more vague and broad, and will only lead to more misuse. The distinction they seek to draw between the police and the State is farcical. Saying that there is no misuse on the end of the State is nothing but splitting hairs, given that the enforcing agency of the government is the police.”

“The law must evolve,” she concluded, “The colonial powers might have founds it uses in having a carrot-and-stick provision to keep the colonised under check. But there is no need for a proud, independent democracy to have a provision of this kind, to be used against its own citizens. If there is a gross breach of law in the form of terrorism or money laundering, there are acts for these. What is the point of multiplying offences, and weaponising the laws against citizens?”

Sedition law reinforces a system of rulers by divine rights, liable to be struck down: Sanjay Hegde

Senior Advocate Sanjay Hegde questioned the relevance of sedition law – an anachronistic holdover from our colonial past – in a modern democracy like ours, when asked about the commission’s report. “The essential question of whether sedition law has any place in a modern democracy has not been addressed in this report,” the senior counsel told us, “This law is from a time when there were kings and subjects, and not a republic and citizens. These kings had the divine right to rule, and any rebellion against the king was thought to be a rebellion against God.”

The senior counsel then recalled a famous verse from William Shakespeare’s Richard II – “Not all the water in the rough rude sea, can wash the balm off from an anointed king; the breath of worldly men cannot depose the deputy elected by the Lord.”

“This was the understanding of kingship. You could not rebel against the king who was there for life. But, we currently live in a democratic setup where the rulers have a lease on power for five years subject to good behaviour. Dissent, as someone famously said, is a safety valve of democracy. Sedition law is overbroad and can be used against all kinds of dissenters, besides reinforcing a system of rulers by divine rights. The targeted constituency of this provision comprises people who raise their voices for public causes and who provide the moral support for genuine discontent.”

“From my understanding of the report, a broad sense of the ultimate recommendation was arrived at first and then the logic was supplied to support it. They have basically back-calculated it. They have gone beyond Kedar Nath Singh, ignoring the Balwant Singh ruling. No meaningful safeguard has been introduced either. I believe if the recommendations are accepted, they would be struck down by the court,” the senior counsel concluded.

Senior advocates Rebecca John and Sanjay Hegde are not the only ones who have criticised the Law Commission’s report on the law of sedition. Veteran lawyers, renowned jurists, former judges, and other legal luminaries have been remonstrating against the commission’s recommendations. Here is why.

Proposed amendment incorporates language from 60-year-old judgement of Supreme Court

Less than a decade after India adopted her Constitution, the fledgling Supreme Court was called on to examine the constitutionality of the offence of sedition under Section 124A of the Indian Penal Code, 1860 on the touchstone of the fundamental right to speech and expression. A constitution bench was hearing a batch of criminal appeals in which this common question arose. Of the appellants was the firebrand communist leader Kedar Nath Singh who was convicted of sedition by a local court in Bihar for a 1953 speech in which he called the Indian National Congress ‘goondas’ and accused them of “sucking the blood of mazdoor and kisan”. However, unfortunately for KN Singh and the hundreds of dissenters who found themselves at the receiving end of the colonial-era law on sedition in the coming decades, the bench – headed by former chief justice Bhuvaneshwar Prasad Sinha – refused to strike down the controversial section. The apex court, while saving the provision that had been introduced by the British to counter anti-colonial sentiment in India, applied the ‘pernicious tendency’ test – a close relative of the ‘bad tendency’ standard developed by the US Supreme Court to determine whether criticism of World War I and the government of the time was protected by the First Amendment to the country’s constitution. With its roots in the English common law of libel, the bad tendency test was invoked during the wartime era by the SCOTUS to rule in favour of the government’s anti-seditious behaviour, allowing free speech to be restricted on the ground of public order notwithstanding the remoteness of a violent outcome.

The Indian Supreme Court appeared to take a leaf out of its American counterpart’s book by dispensing with a requirement to establish actual proximity between seditious activity and public disorder. In its famous Kedar Nath Singh judgement, the top court held:

“The provisions of the sections read as a whole, along with the explanations, make it reasonably clear that the sections aim at rendering penal only such activities as would be intended, or have a tendency, to create disorder or disturbance of public peace by resort to violence. The explanations appended to the main body of the section make it clear that criticism of public measures or comment on Government action, however strongly worded, would be within reasonable limits and would be consistent with the fundamental right of freedom of speech and expression. It is only when the words, written or spoken, etc. which have the pernicious tendency or intention of creating public disorder or disturbance of law and order that the law steps in to prevent such activities in the interest of public order. So construed, the section, in our opinion, strikes the correct balance between individual fundamental rights and the interest of public order.”

The language of Kedar Nath Singh has now been reproduced almost in its entirety in the amendment to Section 124A recommended by the 22^nd Law Commission in its report on the law of sedition, ignoring the subsequent march of the public order and free speech jurisprudences and in particular, an order of the Supreme Court effectively keeping the provision in abeyance till it was legislatively revisited by the central government. Taking note of the concerns expressed regarding the misuse of the provision to suppress dissent against the government, a bench led by the then Chief Justice of India NV Ramana had opined prima facie that the rigours of Section 124A of IPC was not in tune with the current social milieu, and was intended for a time when this country was under the colonial regime.

It must also be noted that in the 60 years since the Kedar Nath Singh ruling, the Supreme Court has abandoned its earlier reluctance to read a proximity requirement into the exceptions to Article 19 rights and has driven an important distinction between discussion or advocacy and incitement. A watershed moment for free speech in the country was the Shreya Singhal judgement, in which the top court struck down Section 66A of the Information Technology Act for violating Article 19(1)(a) of the Constitution. Justice Rohinton Fali Nariman wrote:

“There are three concepts which are fundamental in understanding the reach of this most basic of human rights. The first is discussion, the second is advocacy, and the third is incitement. Mere discussion or even advocacy of a particular cause, howsoever unpopular, is at the heart of Article 19(1)(a). It is only when such discussion or advocacy reaches the level of incitement that Article 19(2) kicks in. It is at this stage that a law may be made curtailing the speech or expression that leads inexorably to or tends to cause public disorder or tends to cause or tends to affect the sovereignty & integrity of India, the security of the State, friendly relations with foreign States, etc.”

Departure from progressive undertones of 2018 consultation paper by previous Law Commission

Not only does the Law Commission’s recommendation to retain the offence of sedition – with additional ‘safeguards’ – fly in the face of current judicial thought, but it also appears to be an absurd volte face from the 21^st Law Commission’s consultation paper inviting public suggestions on questions relating to the relevance of modern-day India. While calling for a redefinition of sedition, the commission – headed by retired Supreme Court judge BS Chauhan – had noted, “For merely expressing a thought that is not in consonance with the policy of the Government of the day, a person should not be charged under the section. Section 124A should be invoked only in cases where the intention behind any act is to disrupt public order or to overthrow the Government with violence and illegal means.”

Inadequate justification for retaining sedition law despite counter-terror legislations

Instead of advocating for a relaxation of the stringency of sedition law – as it earlier had – the new Law Commission under the leadership of former Karnataka High Court judge Ritu Raj Awasthi has proposed a widening of its scope and an increase in the punishment for violators. This is not its only offence. The report is replete with internal contradictions and fallacious logic.

For instance, after conducting a comparative survey of sedition law in other jurisdictions namely, the United States, the United Kingdom, Australia, and Canada, the report concludes that only ‘cosmetic changes’ have been affected in the law of sedition in these countries without taking away the core substance of the offence. “What some of these countries have actually done,” the report notes, “Is that they have merged their sedition law with counter-terror legislations.” But aside from the hackneyed argument that these countries had their own history, geography, population, diversity, laws, etc., which were not comparable to Indian circumstances, the commission does not offer much in the way of an explanation for not following the example of these ‘advanced democracies’. The report attempts but miserably fails to establish why “the existence of counter-terror legislations did not obviate the need for Section 124A”. Quite alarmingly, the commission admits that one of the grounds for retaining Section 124A was to criminalise such acts that could not be brought under even the overbroad provisions of the Unlawful Activities (Prevention) Act or the National Security Act. The report states:

“While UAPA is a special law dealing with activities of a terrorist or subversive nature, NSA is a law only dealing with preventive detention. Generally speaking, special laws and anti-terror legislations dealing with national security such as these seek to prevent or punish the commission of offences targeted towards the State. On the other hand, Section 124A of IPC seeks to prevent the violent, illegal, and unconstitutional overthrow of a democratically elected government established by law. Hence, the existence of the former does not by implication cover all elements of the offence envisaged under Section 124A of the Indian Penal Code.”

“Further, in the absence of a provision like Section 124A of IPC, any expression that incites violence against the government would invariably be tried under the special laws and counter-terror legislations, which contain much more stringent provisions to deal with the accused,” the report further states. This explanation is rendered meaningless in light of the current practice of the State to invoke provisions of anti-terror statutes, alongside Section 124A, at the drop of a hat, especially in response to expressions that are thought to incite violence against the government. Section 124A, criminal law practitioners attest, is activated as a part of the bouquet of sections under which such cases of perceived anti-government or anti-national activities are concerned, and rarely as a standalone offence.

Blame for misuse of sedition law is passed to police

Another inherent contradiction is the superficial or ‘farcical’ distinction between the police and the State as drawn by the Law Commission while it tries to pass the blame for the misuse of Section 124A to the law enforcement agencies. The report states:

“While the political class may be accused of misusing the sedition law, the root of the problem lies in the complicity of the police. Sometimes, in an overzeal to please the political masters, the police action in this regard becomes partisan and not as per the law.”

In this connection, the commission admits that the erroneous interpretation of the law on sedition by the police authorities is also what leads to its misuse. “The invocation of Section 124A of IPC in any case very much depends on how the police whimsically interprets the language of this provision and the bearing that the alleged committed act has on public order,” the report further states. However, despite acknowledging that a faulty interpretation of the law of sedition often led to police officers – particularly those holding lower ranks – being trigger-happy with the section, the commission proceeds to propose an amendment that would make the section even more complex by adding the ingredient of a ‘tendency’ to incite violence or cause public disorder. The Law Commission has also recommended that a fourth explanation be appended at the end, defining tendency as “mere inclination to incite violence or cause public disorder rather than proof of actual violence or imminent threat to violence”. Not only does this make the section wider in terms of the activities that have been brought under its purview, but also makes it more difficult for a common police officer to understand and correctly apply owing to the lack of objective parameters to determine ‘inclination’ or ‘tendency’.

Conclusion

“The mere fact that a particular legal provision is colonial in its origin does not ipso facto validate the case for its repeal,” the commission states in its report in an attempt to endorse the legitimacy of the law. This is not entirely incorrect. Not everything - law or otherwise - that India has inherited from her colonial masters has to be discarded. Therefore, the constitutionality of a provision like Section 124A would not be under challenge merely because it predates our Constitution. However, because it comes from a time before the architects of our nation had put on paper their vision of India - a sovereign, democratic republic - there can be no presumption of constitutionality attached to it or any other provision of the Indian Penal Code. This is what Justice Rohinton Fali Nariman had observed in his concurring opinion while proposing to read down Section 377 and decriminalise gay sex. It is not the provenance that is problematic on its own, but the rampant misuse of the provision since its enactment. By focusing on its colonial past without considering its post-colonial legacy of arbitrary arrests and suppression of dissent even in a democracy, the Law Commission does nothing but fight a straw man - and not very well.

Days after the Law Commission released its report, newly minted law minister Arjun Ram Meghwal tweeted, perhaps in light of the loud backlash, that the recommendations were not binding and that the government would hold consultations with all stakeholders before finally taking a call on the law of sedition. Even if the proposed amendments are introduced, it would not be long before they are challenged before a court of law and in all likelihood, struck down. Senior Advocate Sanjay Hegde agreed with this assessment. The five-judge Kedar Nath Singh ruling is from a time marked by greater judicial deference to the legislature. The same logic that the constitution bench had found acceptable in the 60’s, might not hold water today before the Supreme Court of today.

There have been 22 law commissions and over 250 reports. As time goes on, most have been relegated to holding little more than academic value. Some, however, owing to their profundity and extraordinary prescience, will always be remembered. The same cannot be said for this report and unfortunately, this Law Commission has missed a historic opportunity – as Rebecca John puts it - to right a wrong and be immortalised in public memory.