Top court must strike down the sedition law

Jun 06, 2023 01:22 PM IST

The Law Commission has recommended that sedition be retained in the statute books. But it fails proportionality and incitement tests, making it unconstitutional

Last year, during the hearing of a constitutional challenge to the validity of the offence of sedition, the government urged the Supreme Court (SC) to defer consideration on the basis that the issue was under review. The SC agreed to do so, but also directed no further arrests or prosecutions under the colonial-era law for the time being. Last week, the first fruits of the government’s review process were made public: The Law Commission of India published a report where it not only recommended retaining the offence in the statute books, but also loosening its definition and increasing the punishment in terms of jail time.

Regardless of whether the government accepts or rejects the Law Commission’s proposed changes, it is long overdue for the Supreme Court to take up this case again, and strike down sedition once and for all. (AP File ) PREMIUM
Regardless of whether the government accepts or rejects the Law Commission’s proposed changes, it is long overdue for the Supreme Court to take up this case again, and strike down sedition once and for all. (AP File )

According to the commission, headed by former Karnataka high court chief justice Ritu Raj Awasthi, the sedition law, which carries a maximum punishment of life imprisonment or a punishment of three years, should be further amended to enhance the alternative punishment to seven years. The panel further said that repealing the provision could have serious adverse ramifications for the security and integrity of the country.

A study of the Law Commission’s report reveals a striking ignorance of both the existing jurisprudence on free speech under the Constitution, as well as the reasons why the sedition provision was challenged in the first place. The report draws heavily from the fact that in 1962, in Kedar Nath Singh vs State of Bihar, the SC upheld the constitutional validity of sedition on the basis that – in accordance with Article 19(2) of the Constitution — it was a “reasonable restriction” upon the freedom of speech, “in the interests of public order.” Even though the sedition provision — section 124A of the Indian Penal Code (IPC) — makes no mention of “public order” and refers only to creating “disaffection” against a legally established government, the apex court in 1962 attempted to bridge that gap by equating punishable disaffection with any expression that had the “tendency” to disrupt public order.

In the 60 years since the Kedar Nath Singh judgment, however, the judiciary’s understanding of free speech has evolved substantially. In a series of cases, courts have repeatedly noted that in order to prevent State censorship and the muzzling of dissent, clear proximity must be demonstrated between the speech and the projected public disorder (think of something such as a person shouting “fire” in a crowded theatre). In the words of the SC, that proximity must be akin to a “spark in a powder keg” and must rise to the level of incitement to violence (even mere advocacy, therefore, will not suffice to justify the levelling of sedition charges, in this view).

This understanding is bolstered by the fact that — in line with developments across the world — the SC has repeatedly clarified that for a restriction upon a fundamental right to be reasonable, it must pass the test of proportionality. One of the elements of the proportionality test is that the State must not have any other less restrictive means at its disposal to prevent the harm that it fears. It is easy to see how the proportionality standard and the requirement of proximity are interlinked: The State is only allowed to punish speech — and jail people for speaking — when it has no other, less restrictive methods to fall back upon. In most cases, these methods will always exist: In particular, the State, with its immense resources, can always engage in counter-speech, with the only exceptions being situations where there is no time to do so (i.e., classic cases of incitement).

The reason for the fresh challenge to sedition, thus, was that the language of Section 124A — and the use of words such as “disaffection” — can no longer be sustained under the incitement or proximity standard. The Law Commission’s report not only ignores this, but even seeks to reverse this march of the law by loosening the standard even further and adding a clarification that the word “tendency” means the “inclination to incite violence or to cause public disorder.” It should be immediately obvious that the phrase “inclination to cause public disorder” is boundless, and boundlessly manipulable, and will vest vast amounts of discretion in the hands of the police, as well as provide no clear guidance to the judiciary. As such, if such a change were to be enacted into law, it would very evidently be unconstitutional.

Notwithstanding the Law Commission’s Report, the basic issue with the sedition law is a simple one and continues to persist: While the stated goal of the law is to preserve public order and prevent incitement to violence, its language — a holdover from colonial times — is the language of “disaffection” and “disloyalty.” The massive gap between object and language is what makes the sedition law a potent weapon for the quelling of dissent, and indeed, it is this gap that renders this provision unconstitutional. Thus, regardless of whether the government accepts or rejects the Law Commission’s proposed changes, it is long overdue for the Supreme Court to take up this case again, and strike down the law of sedition once and for all.

Gautam Bhatia is a Delhi- based advocate. The views expressed are personal.

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