The Law Commission of India (LCI)’s recent report recommending retention of India’s sedition law covered by Section 124A of the Indian Penal Code (IPC) and providing for further expansion of its scope through suggested amendments has earned it a flood of criticism. Legal experts, members of civil society and political observers fear that it will aid the government in stifling critical voices.
According to the recommended amendments, a person’s “tendency to incite violence or cause public disorder” is a good enough reason to convict him or her while facing the charges of “attempting to bring into hatred or contempt, or excites or attempts to excite disaffection towards, the Government established by law in India.” The punishment could be life imprisonment or seven years in jail and may include imposition of fines.
“The expression ‘tendency’ means the mere inclination to incite violence or cause public disorder rather than proof of actual violence or imminent threat to violence,” another recommended amendment explains.
This means violence need not take place for one to be convicted on the charge of inciting violence or attempting to “excite disaffection” toward governments.
The LCI, currently headed by former Karnataka High Court Chief Justice Ritu Raj Awasthi, is the government’s top advisory body on legal reforms. Its members are appointed by the Ministry of Law and Justice. Its recommendations are not binding on the government but the government may use this to opine against the demand for the repeal of the law that some petitioners made before the Supreme Court last year.
The Congress, India’s main opposition party, criticized the recommendations. “This is shocking and must be resisted,” senior Congress leader and parliamentarian Shashi Tharoor tweeted, adding that the law was “already grossly & frequently misused” and that the Congress’ 2019 Lok Sabha election manifesto argued for amending the law “to bring it into conformity” with the Supreme Court rulings “that restrict sedition to incitement to violence against the State.”
Noted lawyer and Samajwadi Party MP Kapil Sibal described it as “regressive” and “intended to silence even the limited voices of dissent against the government.”
The LCI’s recommendations had made the provisions even broader and vaguer than what it already was, making it “highly susceptible to arbitrary use by the state and its agents,” senior advocate Vrinda Grover told the media.
Law minister Arjun Ram Meghwal wrote in a tweet that the report “is one of the steps in the extensive consultative process.” The final decision will be taken “only after consulting all the stakeholders” to arrive at an “informed and reasoned decision,” the minister said.
Political opponents, free speech activists, and civil society members, however, are not assured by Meghwal’s words, as over the past few years, there have been several instances of the Narendra Modi government misusing the law to curb criticism.
A sedition database maintained by Article 14, a Bengaluru-based independent media outlet, reported last year that of the total sedition cases filed against 405 Indians between 2010 and 2021 for criticizing politicians and governments, 96 percent were registered after 2014, the year Modi’s Bharatiya Janata Party (BJP) came to power. The sedition cases filed by the Modi government were “largely against protest movements, journalists, intellectuals,” it pointed out.
After the LCI’s recommendations became public, the New York-based independent non-profit Committee to Protect Journalists (CPJ) expressed deep concerns that the LCI not only recommended retention of a law that “has been repeatedly abused to stifle freedom of the press and expression” but also “to enhance its punishment and implement an overbroad definition for sedition.”
Rights activists and civil society members could not hide their shock at the LCI’s recommendations, especially because the review itself started following a May 2022 judgment of the Supreme Court that directed any further application of the law, all pending trials, appeals, and proceedings to be kept in abeyance till the Union government completed its review of the law.
In fact, a sentence from the judgment reads, “It is clear that the Union of India agrees with the prima facie opinion expressed by this Court that the rigors of Section 124A of IPC is not in tune with the current social milieu, and was intended for a time when this country was under the colonial regime.”
The LCI, while recommending that the 153-year-old law be retained, said that the Union government should issue model guidelines outlining the “requisite procedural safeguard before filing of an FIR with respect to an offense under Section l24A of IPC” to curb its misuse.
It argued that given India’s diversity of religious, ethnic and linguistic groups and “unique geopolitical position… internal security is a sine qua non,” or indispensable, “for the nation’s very existence,” and that any attack on internal security “is essentially an attack” on its sovereignty. In this regard, it has mostly relied on comments made by India’s National Security Advisor (NSA) Ajit Doval at different public events.
Besides, the way it has suggested further amendments “to bring about greater clarity regarding the usage of the provision” has triggered criticisms. It is alleged that the law commission cherrypicked paragraphs from past judgments that suited the argument for retaining the law and omitted those that provided for safeguards to freedom of speech and expression.
For example, the LCI quite heavily relied on the Supreme Court’s 1962 judgment that upheld the constitutional validity of section 124A, but did not mention in its report that the same judgment also opined that “a very strong speech” or “very vigorous words in a writing directed to a very strong criticism of measures of Government or acts of public officials….” “would be outside the scope of the section.”
The LCI’s recommendations are also being seen as a contrast to the position taken by the last law commission, headed by retired Supreme Court judge B.S. Chauhan. It had in 2018 published a consultation paper on sedition, which said, “Expression of strong condemnation towards the State or State institutions can never amount to sedition for the simple reason that no institution or symbol alone embodies the whole country in entirety.”
The paper suggested that Section 124A should be invoked “only in cases where the intention behind any act is to disrupt public order or to overthrow the Government with violence and illegal means” and asked the people to offer their comments on the pros and cons of repealing or revising the section.
The present law commission, however, may not have considered any material that was submitted in response to the Chauhan-led law commission’s invitation, free speech activist Apar Gupta pointed out in a tweet.
“The LCI Report notes the date of reference as March 29, 2016. It ignores that the 21st LCI (the previous one) floated a public consultation paper on sedition on August 30, 2018. Were any of the public responses considered? Does not seem like it,” wrote Gupta, founder of the Internet Freedom Foundation, a New Delhi-based, non-government advocacy group.