Law Commission Recommends Retention Of Sedition Law With Certain Amendments

In a significant development, the Law Commission of India has recommended against the total repeal of sedition law (Section 124A of the Indian Penal Code) and has instead proposed that the provision be retained with certain amendments.

The Law Commission stated in its 279th report that it is of "the considered view that Section l24A needs to be retained in the Indian Penal Code, though certain amendments, as suggested, may be introduced in it by incorporating the ratio decidendi of Kedar Nath Singh v. State of Bihar [AIR 1962 SC 9551] so as to bring about greater clarity regarding the usage of the provision".

Further, the Law Commission also proposed that the punishment for sedition offence (Section 124A IPC) be changed. It recommended that sedition be made punishable with life imprisonment or for a term up to 7 years or with fine on the ground that the scheme of punishment should be brought in parity with the other offences under Chapter VI of IPC. Presently, the offence is punishable with imprisonment to life or imprisonment up to 3 years or with fine

Also, to prevent misuse of the Section, it suggested that the Central Government bring model guidelines.

FIR for sedition be filed only after preliminary enquiry and permission by Govt

The commission has proposed an amendment to add a proviso to Section 154 of the Code of Criminal Procedure to prescribe that an FIR for the offence of sedition be registered only after preliminary enquiry by a police officer, not below the rank of Inspector, and after permission by the Central Government or the State Government, as the case may be, on the basis of the preliminary enquiry report.

The Commission said that it is making this recommendation taking note of the observations made by the Supreme Court regarding the potential abuse of the provision.

Last year, the Supreme Court had ordered to keep the provision in abeyance, 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 "the rigours of Section 124A of IPC is not in tune with the current social milieu, and was intended for a time when this country was under the colonial regime".

Provision necessary to safeguard unity and the integrity of the nation

The Commission recommended that the provision is necessary to safeguard the unity and the integrity of the nation.

"Section I 24A of IPC has its utility in combating anti-national and secessionist elements as it seeks to protect the elected government from attempts to overthrow it through violent and illegal means. The continued existence of the government established by law is an essential condition for the security and stability of the State. In this context, it becomes imperative to retain Section l24A and ensure that all such subversive activities are nipped in their incipiency", the Commission said.

The Commission also disagreed with the view that the provision is violative of the fundamental right to freedom of speech and expression guaranteed under Article 19(1)(a) of the Constitution and opined that it is a reasonable restriction.

Also, the existence of anti-terror legislations like the Unlawful Activities Prevention Act and National Security Act does not obviate the need for sedition offence.

"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 l24A 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 lPC".

It also opined that 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.

Sedition being a colonial law not a valid ground for its repeal

The Commission said that if this logic is adopted, then the entire Indian Penal Code should be repealed for its colonial legacy. "The mere fact that a particular legal provision is colonial in its origin does not ipso facto validate the case for its repeal".

Proposed amendments to the provision (highlighted portions)

"124A. Sedition.-Whoever by words, either spoken or written, or by signs, or by visible representation, or otherwise, brings or attempts to bring into hatred or contempt, or excites or attempts to excite disaffection towards, the Government established by law in India, with a tendency to incite violence or cause public disorder shall be punished with imprisonment for life, to which fine may be added, or with imprisonment of either description for a term which may extend to seven years, to which fine may be added, or with fine.

Explanation 1.-The expression "disaffection" includes disloyalty and all feelings of enmity.

Explanation 2. Comments expressing disapprobation of the measures of the Government with a view to obtain their alteration by lawful means, without exciting or attempting to excite hatred, contempt or disaffection, do not constitute an offence under this section.

Explanation 3. Comments expressing disapprobation of the administrative or other action of the Government without exciting or attempting to excite hatred, contempt or disaffection, do not constitute an offence under this section. Explanation

4.-The expression "tendency" means mere inclination to incite violence or cause public disorder rather than proof of actual violence or imminent threat to violence"

The Commission consists of Justice(Retired) Ritu Raj Awasthi (former Chief Justice of Karnataka High Court and judge of Allahabad High Court), Justice (Retired) KT Sankaran(former judge of the Kerala High Court), Professor Dr. Anand Paliwal and Professor DP Verma.

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