• The 279th report of the Law Commission has proposed retaining the penal provision for the offence of sedition, saying repealing it altogether can have serious adverse ramifications for the security and integrity of the country. 

• The Commission, chaired by Justice Ritu Raj Awasthi (retd), also suggested increase in the minimum jail term for sedition offences from the present three years to seven years, seeking to bring it in consonance with the scheme of punishment provided for other offences under Chapter VI of the Indian Penal Code (IPC) which deals with offences against the State.

• In the landmark order passed on May 11, 2022, the Supreme Court had put the contentious law on hold till the Centre completed its promised review of the colonial relic and also asked the Union and state governments not to register any fresh case invoking the offence.

• Amid allegations of misuse, there have been demands for repeal of the provision.

What is sedition?

• The offence of sedition, which was included in section 124A of the Indian Penal Code (IPC) in 1890, has been under intense public scrutiny for its use as a tool against expressions of dissent.

• The offence of sedition is provided under Section 124A of the Indian Penal Code (IPC).

• It states: 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 shall be punished with imprisonment for life, to which fine may be added.

• Sedition is a non-bailable offence. Punishment under the law varies from imprisonment up to three years to a life term and fine.

• Section 124A of the Indian Penal Code dealing with sedition is at present under abeyance following directions of the Supreme Court issued in May 2022.

Sedition during pre-Independence era

• Section 124A of the IPC was extensively used to curb political dissent in India. In 1891, Jogendra Chandra Bose was charged with sedition for criticising the Age of Consent Bill and the negative economic impact of British colonialism.

• Bal Gangadhar Tilak was accused of sedition for publishing an article in newspaper Kesari invoking the example of the Maratha warrior Shivaji to incite the overthrow of British rule.

• Mahatma Gandhi was jailed under the charges of sedition. Gandhiji was arrested by the British police for writing  articles in his weekly journal Young India.

Alleged misuse of Section 124A of IPC

• It is often alleged that Section 124A of IPC is misused by the authorities to quell political dissent. The provision has invited stringent criticism on account of being invoked by various state governments against activists, detractors, writers, journalists, etc seeking to silence political opposition by accusing the dissenters of promoting disaffection. 

• One of the major grounds of objection to Section 124A is that a forceful censure of government policies and personalities and stinging denunciation of an unresponsive or insensitive administration are in all likelihood wrongfully treated to be seditious.

• As per the data furnished by the National Crime Records Bureau (NCRB), 399 sedition cases have been filed across the country, including a high of 93 in 2019, 73 in 2020 and 76 in 2021. 

• Of the 322 cases filed between 2016 and 2020, chargesheets were filed in 144 of them, with as many as 23 cases being found to be false or a mistake of law and 58 cases having been closed for lack of evidence. Over the years, the conviction rate in sedition cases has fluctuated between 3-33 per cent.

• While the political class may be accused of misusing the sedition law, the root of the problem lies in the complicity of the police. 

• 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.

Why the Law Commission says to retain sedition law?

The Law Commission is of the considered opinion that Section l24A of IPC should be retained.  

The reasons for the same are:

1) To safeguard the unity and integrity of India

Even though there are central and state laws to deal with terror cases (like the Unlawful Activities Prevention Act, 1967 and the Maharashtra Control of Organised Crimes Act, 1999, etc), Section 124A of IPC serves to be the traditional penal mechanism to address the issue. Prompt and effective suppression of disintegrating tendencies is in the immediate interest of the nation.

The ever proliferating role of social media in propagating radicalisation against India and bringing the government into hatred, many a times at the initiation and facilitation by adversarial foreign powers, all the more requires such a provision to be present in the statute. 

Section 124A 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 124A and ensure that all such subversive activities are nipped in their incipiency.

2) Sedition is a reasonable restriction under Article 19(2)

Article 19(1)(a) of the Constitution of India guarantees freedom of speech and expression to all citizens. However, Article 19(2) provides for certain restrictions to which this freedom can be subjected to, namely, in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality, or in relation to contempt of court, defamation or incitement to an offence.

The contention that Section 124A is violative of Article 19(1)(a) of the Constitution does not hold any ground because of multiple reasons.

The Supreme Court while dealing with the constitutionality of Section 124A in Kedar Nath Singh vs State of Bihar (1962), held that Section 124A was constitutional as the restriction it sought to impose on the freedom of speech and expression was a reasonable restriction under Article 19(2). 

As held by the Supreme Court in a catena of decisions, where two interpretations of a legal provision are possible, one which renders the concerned provision constitutional, and the other, which renders it unconstitutional, the former construction should prevail over the latter.

What Section 124A of IPC seeks to penalise is only the pernicious tendency to incite violence or cause public disorder in the guise of exercising right to freedom of speech and expression.

3) Existence of counter-terror legislations does not obviate the need for Section 124A

While Unlawful Activities Prevention Act (UAPA) is a special law dealing with activities of a terrorist or subversive nature, the National Security Act (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 governent established by law.

Hence, the existence of the former does not by implication cover all elements of the offence envisaged under Section 124A of IPC. 

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.

4) Sedition being a colonial legacy is not a valid ground for its repeal

It is often said that the offence of sedition is a colonial legacy based on the era in which it was enacted, especially given its history of usage against India’s freedom fighters. However, going by that virtue, the entire framework of the Indian legal system is a colonial legacy. The police force and the idea of an All India Civil Service are also temporal remnants of the British era. 

Merely ascribing the term ‘colonial’ to a law or institution does not by itself ascribe to it an idea of anachronism. The mere fact that a particular legal provision is colonial in its origin does not validate the case for its repeal.

5) Realities differ in every jurisdiction

Each country’s legal system grapples with its own different set of realities. Repealing Section 124A of IPC on the mere basis that certain countries have done so is essentially turning a blind eye to the glaring ground realities existing in India.

Even in some of the most advanced democracies around the world, mere cosmetic changes have been affected in the law of sedition, without taking away the core substance of the offence. These comparative jurisdictions like the US and the UK have their own history, geography, population, diversity, laws, etc which are not comparable to Indian circumstances. Despite this, what some of these countries have actually done is that they have merged their sedition law with counter-terror legislations.

Additional read:

How does the Law Commission function?

The Law Commission is a non-statutory body. The central government established the First Law Commission in 1955. The 22nd law panel is mandated to identify laws which are no longer relevant and recommend for their repeal.

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