Dangerous provisions: Stop misuse of sedition, defamation against media

In May 2022, the Supreme Court took a great step forward for constitutional liberties in India. A Bench headed by Justice N V Ramana, then chief justice, suspended the operation of the sedition provision in the Indian Penal Code — under Section 124A. This followed a recognition of the fact that the code, as written — although it had been read down as early as 1962, in the Kedarnath Singh case — was being misused by the political authorities. Unfortunately, politicians have chosen to ignore the court’s desire. A particularly shocking example of this was visible recently in the Assam Police’s registration of sedition cases against journalists associated with The Wire.

 

In this case, defiance of the law and of the judicial system has taken several forms. First, the Union government itself may have chosen to evade the court’s expectation that Section 124A cease operation until it met the Kedarnath criteria by introducing a replacement for the Indian Penal Code (IPC), the new Nyaya Sanhitas. Section 152 of the Bharatiya Nyaya Sanhita might be considered to be a simple rewording of the IPC’s Section 124A. Then there is the question of why the Assam Police is imposing sedition proceedings on journalists for articles reporting on commentary made by military officials about Operation Sindoor. Forget about the absurdity of reporting being seditious — if the Union government, neither the foreign nor defence ministries, views this as sedition, what is the reason for the Assam government’s stance? And finally, it has been reported that immediately after the Supreme Court granted the journalists protection from arrest under one sedition FIR in Assam, they were threatened with arrest under another. If true, surely this would amount to a deliberate failure to understand the court’s intent?

 

While this is an unusually egregious example of the misuse of such provisions, it should be noted that the Assam government is not alone in the political class in using the law to go after members of the media. Recently, for example, the spokesperson for the Congress threatened to file a criminal defamation case against one member of the media for a programme discussing the party’s accusations against the Election Commission of India. Whether or not the programme in question was a fair reporting of the facts is not the point. The problem is that even a party that should recognise the dangers of criminal defamation — which, remember, was used as a method to disqualify the Congress’ Rahul Gandhi from the Lok Sabha — remains willing to use this provision.

 

The only remedy to this sort of overreach by those who should know better lies through court action and legal reform. First of all, it is to be hoped that the Supreme Court recognises that the actions of the Assam Police must cause it to hasten the examination of the revised sedition provision that it has already said it will conduct. A three-judge Bench led by Chief Justice B R Gavai issued a notice to the Union government on this matter earlier this month. And, second, the question of decriminalisation of defamation must again be studied. While past Law Commissions have advised against it and the Supreme Court upheld its constitutionality in 2016, it is clear that misuse of the provision by the political class shows no sign of stopping.