India’s Sedition Law: The Need for Repeal and Reform

“Everything has been said before, but since nobody listens, we have to keep going back and beginning all over again,” French novelist Andre Gide said, eloquently reflecting the current condition of the sedition debate in India. The 279th statute Commission Report, which sustains the sedition statute, exemplifies the government’s disregard for public opinion.

Sedition Law in Historical Perspective

  • Section 124A of the Indian Penal Code was enacted in 1870 during the British Raj to suppress dissent and protest against the colonial administration.
  • The British administration in India at the time believed that religious preachers on the Indian subcontinent would wage war against it.
  • The need for such legislation was realised in particular after the British successfully suppressed the Wahabi/Waliullah Movement.
  • Throughout the Raj, this clause was used to persecute national independence activists such as Tilak and Mahatma Gandhi, both of whom were found guilty and imprisoned.

What exactly is the ‘Tendency’? Jurisprudence?

  • The term “tendency jurisprudence” refers to a legal idea or technique that analyses an act’s potential or inclination to instigate violence or disrupt public order rather than requiring evidence of actual violence or an imminent danger of violence.
  • In the context of sedition legislation, this means that utterances or actions that encourage violence or promote hatred, contempt, or disdain for the government can be punished, regardless of whether they directly cause public unrest.

Key points concerning the ‘Tendency’ Jurisprudence

  • The ‘tendency’ criteria is frequently chastised for its ambiguity and lack of clarity. It provides for the inclusion of acts or expressions that may not be directly causally related to public disorder, making it difficult for judicial and executive agencies to interpret and apply uniformly.
  • Free Formulation: The ‘tendency’ standard is a broad definition that can cover a wide range of actions or phrases. It opens the door to penalising statements or activities that, while not immediately dangerous, are deemed to have the potential to inspire violence or disrupt public order in the future.
  • Judicial Challenges: The ‘tendency’ jurisprudence has been challenged in a number of jurisdictions. Critics claim that because it broadens the scope of what might be labelled seditious, it can be used to repress dissent, limit freedom of expression, and stifle legitimate criticism of the government.
  • Pending Petitions: In the Indian context, the Supreme Court is now hearing nine petitions challenging the legality of Section 124A (the sedition law). These petitions express concern about the ambiguity and potential misuse of the ‘tendency’ criteria, underlining the need for a more explicit and clear definition of sedition.
  • Relevance to Sedition Laws: The notion of ‘tendency’ is important in the context of sedition laws since it decides whether an act or utterance falls under the ambit of sedition. Authorities can decide whether to charge persons with sedition based on their assessment of an act’s proclivity to incite violence or disrupt public order.
  • Critics claim that the ‘tendency’ definition lacks objective standards and is open to interpretation and abuse. To defend freedom of expression and prevent misuse of the law, there is a demand for a more specific and strictly defined criteria that clearly distinguishes between protected speech and seditious actions.

Concerns over the Power of the police in the enforcement of sedition laws

  • Investigation and Enquiry: The Law Commission’s proposal that a police officer with the level of Inspector or above conduct a “preliminary enquiry” in sedition matters before filing a First Information Report (FIR). This implies that the police are given the authority to judge whether an act or utterance has the potential to inspire violence, even in the absence of evidence of actual violence or an impending threat.
  • Ambiguous Standards: The proposed modification to sedition legislation to include the “tendency to incite violence” adds ambiguity to the assessment of seditious activities. This gives police personnel the discretionary authority to determine whether an act has a violent bent, opening the door to abuse or subjective interpretations.
  • Wide Net and Misuse: There are fears that the proposed change, as well as the vast discretion granted to police officers, will throw a wide net, potentially covering acts that have no genuine connection to public disorder.
  • Political Influence: When police officers are affected by those with political strength at the local, state, or national levels, they may use their authority selectively and target individuals or groups critical of the government. This can result in dissent being suppressed and police power being abused for political objectives.

Disregard for Realities on the Ground

  • Sedition Laws Are Being overturned: The Law Commission is ignoring developments in other nations where sedition laws have been overturned or repealed. It appears that the Commission overlooks these trends by saying that “ground realities” differ in India.
  • High Number of Cases: Sedition cases have been launched against individuals in India for criticising the government or engaging in innocent activities. It uses the example of 174 sedition lawsuits filed against over 950 people since 2010.
  • Confusion generated by precedent: Another aspect of ground reality that the Commission failed to address is the confusion caused by the Kedar Nath Singh precedent. The admission of many petitions challenging the legality of Section 124A by the Supreme Court, based on the confusion caused by the Kedar Nath Singh case, demonstrates the need for clarity and reform in the interpretation and execution of sedition legislation.
  • The Effect on Freedom of Expression: The disregard for ground realities extends to the impact of sedition laws on free expression and criticism. The Commission’s suggestion to keep sedition laws fails to take into account the stifling effect these laws can have on people’s freedom to question authority, participate in political criticism, or voice dissenting ideas without fear of criminal consequences.

The way forward

  • Refining and restricting the Definition of Sedition: Refining and restricting the definition of sedition can aid in its prevention. The emphasis should be on acts or comments that explicitly encourage violence or pose a genuine threat to the country’s territorial integrity or sovereignty.
  • Safeguarding Individuals’ Right to Free Expression: Safeguards should be put in place to preserve individuals’ right to free speech and expression while also allowing for vibrant public debate and the peaceful expression of dissenting viewpoints.
  • Accountability and transparency: Create tools to encourage transparency and accountability in the enforcement of sedition legislation. This includes clear rules for law enforcement authorities, regular case reviews, and harsh penalties for breaking the law.
  • Promote public awareness and legal education on the scope and limitations of the sedition statute. This can assist people understand their rights and duties, allowing them to practise their free speech properly while avoiding illegal behaviours.
  • Concentrate on Alternative Measures: To combat actual risks to public order or national security, emphasise the use of alternative legal tools such as defamation, incitement to violence, or hate speech statutes. These laws must be rigorously implemented in order to safeguard persons without violating their fundamental rights.

@the end

The statute Commission’s suggestions, which include ambiguous standards and more police authority, fail to solve the core problems with the sedition statute. Language modifications and procedural reforms alone will not solve the underlying issues with Section 124A. In a post-colonial democracy like India, it is critical to promote free expression, defend dissent, and foster accountability.

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