Doubling down on sedition

Law body's proposals contradict spirit of democracy

India’s sedition law, a legacy of colonial rule, had attracted attention for its draconian application by the Centre and states till the Supreme Court last year ordered that the law be kept in abeyance till the government reviewed it. The apex court had argued that the law was “not in tune with the current social milieu”, implying that it would best be read down. Instead, the Law Commission, the body that advises the government on legal reform, has not only recommended retaining the relevant section, 124A of the Indian Penal Code, but toughened the punishment and widened the ambit of the law. Ironically, these recommendations come 14 years after the United Kingdom scrapped its own sedition laws.

The Commission’s first recommendation lowers the bar on fixing guilt by adding to a landmark Supreme Court interpretation in 1962 (Kedar Nath Singh versus State of Bihar) that sought to limit misuse of the law. In Kedar Nath, the Supreme Court had ruled that criticism of the government could be labelled sedition only if it was accompanied by an incitement or a call to violence. To this definition, which has been observed in the breach in recent years anyway, the Law Commission has added the provision that the law would also apply to a “tendency to incite violence or public disorder”. It has defined “tendency” as “mere inclination … rather than proof of actual violence”. Far from bringing clarity, as the Law Commission contends, this insertion adds a thick layer of opacity. Both “tendency” and “inclination” are nouns used interchangeably in the English dictionary; they are by their nature open to interpretation.

Deciding their applicability against a critic of the government, therefore, lies very much in the eye of the beholder. Indeed, the law enforcement apparatus has frequently displayed an inclination to spot tendencies to violence in all the wrong places. It is hard to understand, for instance, how an activist supporting the farmers’ protests could be arrested for sedition. The law has also been used by various state governments for critical comments made against people in high offices. This provision also renders moot the Commission’s recommendation for a “procedural safeguard” that only a police officer of inspector or higher rank can conduct a preliminary enquiry and the state or central government can grant permission for filing a first information report based on that report. This is actually not a safeguard because police officials are likely to follow instructions of the political leadership.

Finally, by enhancing the jail term to “seven years to life imprisonment” (earlier “three to life”), the Commission appears to have examined sedition law through a political rather than constitutional lens. Its contention that its recommendations safeguard the unity and integrity of India is standard reason for curtailing citizens’ rights. In any case, the Indian Penal Code already has provisions, such as Section 153A, under which scores of protestors can be arrested without a warrant. The broad wording of such provisions, too, has attracted demands for reform because they largely fulfil the same political purpose as Section 124A. Given this, the Law Commission’s enhancement of the sedition law is out of sync with a democracy as plural and argumentative as India’s. The government would do well not to accept the recommendations.