The Supreme Court referred to a Constitution bench of at least five judges a batch of pleas challenging the constitutional validity of Section 124A (sedition) of the Indian Penal Code (IPC).
The decision comes after a month the Centre introduced in Parliament Bills to replace the colonial-era penal statutes IPC, CrPC and the Evidence Act, proposing among other things the repeal of the sedition law.
The Supreme Court declined to accept the Centre’s request that reference of the petitions to a larger bench be deferred as Parliament is in the process of re-enacting the provisions of the IPC and a Bill has been placed before a standing committee.
The bench noted the constitutional validity of Section 124A was tested by the apex court on the basis of a challenge that it was ultra vires to Article 19(1)(a) of the Constitution in the 1962 judgment of Kedar Nath Singh versus State of Bihar.
Article 19(1)(a) relates to the right to freedom of speech and expression.
The 1962 judgment had upheld the constitutionality of Section 124A and held it was in harmony with Article 19(1)(a).
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.
In June, the Law Commission 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.
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.
Repeal of the sedition law
• In August, Union Home Minister Amit Shah introduced three Bills in the Lok Sabha.
• The new Bills are Bharatiya Nyaya Sanhita (BNS) Bill, Bharatiya Nagarik Suraksha Sanhita (BNSS) Bill, and Bharatiya Sakshya (BS) Bill to replace the Indian Penal Code, 1860, Criminal Procedure Act, 1898, and the Indian Evidence Act, 1872 respectively.
• The BNS Bill proposes repeal of the sedition law and introducing a new provision with a wider definition of the offence.
• The offence of sedition has been retained under the proposed law with a new nomenclature.
• The Bharatiya Nyaya Sanhita (BNS) Bill, 2023 lists new offences such as acts of secession, armed rebellion, subversive activities, separatist activities or endangering the sovereignty or unity in the Section 150.
It states that:
Whoever, purposely or knowingly, by words, either spoken or written, or by signs, or by visible representation, or by electronic communication or by use of financial mean, or otherwise, excites or attempts to excite, secession or armed rebellion or subversive activities, or encourages feelings of separatist activities or endangers sovereignty or unity and integrity of India; or indulges in or commits any such act shall be punished with imprisonment for life or with imprisonment which may extend to seven years and shall also be liable to fine.
The explanation for Section states that: Comments expressing disapprobation of the measures, or administrative or other action of the government with a view to obtain their alteration by lawful means without exciting or attempting to excite the activities referred to in this section.