The case against Section 124A

The statute has no place in a democracy

The Supreme Court’s notice to the Union government to file in three days its response to petitions challenging the validity of the sedition law under Section 124A of the Indian Penal Code (IPC) raises hope this law will finally be erased from the statute books. The law has been misused with rising frequency by the Centre and states and is at odds with Prime Minister Narendra Modi’s statement underlining India’s “civilizational commitment to democracy, freedom of thought and liberty” at an outreach session of the G7 in June last year. Mr Modi followed this up by signing an “Open Societies” statement, which commits signatories to freedom of expression both online and offline. This public stance must be set against the arrests of all manner of Indian critics of the state — from journalists, activists, artistes, and students — and the record number of internet shutdowns by the government. By scrapping Section 124A, the Supreme Court would, in fact, do the government a great service in bridging this dissonance between its international commitments and domestic practice.

There has been a growing legal constituency for scrapping this law. In February last year, for instance, a Delhi court said the sedition law could not be invoked to quieten the disquiet under the pretence of muzzling miscreants. Later, Chief Justice N V Ramana had asked the government’s legal representatives why a colonial-era law that was used to subdue subjugated people was needed 75 years after independence. The fact that the apex court has stated that there would be no further adjournments, setting a firm date of May 5 for the final hearing, suggests that Justice Ramana is keen to settle this contentious issue. This stance from the country’s highest court raises hopes for champions of free speech. But the fact that the government has not yet filed its responses more than nine months after the petitions were lodged implies that it may not be on the same page as the court in this respect. In December last year, Law Minister Kiren Rijiju confirmed there was no proposal from the home ministry to scrap Section 124A, suggesting an institutional partiality for the law.

The urgent need for the law to be scrapped lies in the increasingly expansive interpretation that political leaders and security agencies have applied to a landmark 60-year-old Supreme Court ruling on Section 124A — Kedarnath versus State of Bihar. This 1962 ruling essentially upheld the legality of Section 124A but stipulated that its use should be applied only to content that induced discontent and insurrection, or incited the public to violence. But the lack of specificity in this caveat has enabled the state to apply the widest possible test, which is easy to do in a vast and argumentative democracy like India where public discontent is being expressed at any given time and the insurrectionary impact of statements open to subjective judgement. Two other threats to the liberty of the average Indian citizen — under the notorious Unlawful Activities Prevention Act (UAPA) and the National Security Act — are being increasingly activated to silence critics of the state. These, too, urgently deserve a review. Reading down Section 124A, thus, would set a healthy precedent — and bring India in closer alignment with its “Open Societies” commitment.