Upendra Baxi writes: Section 124-A needs to be wholly judicially repealed at the bar of the fundamental human right to free speech

Written by Upendra Baxi |
Updated: July 31, 2021 8:04:30 amIt is high time to realise that the law of “sedition” must go, even when it may strictly not even exist!

Chief Justice of India N V Ramana has ignited a passionate debate during a preliminary hearing concerning whether “sedition” should be an offence at all, and how to prevent its misuse or abuse, were it to remain. The Supreme Court has a bouquet of petitions — filed by Major General (retired) S G Vombatkere, the Editors Guild of India and others — all arguing, in effect, that the meandering meanings of expressions such as “disaffection” towards the government, “hatred”, “contempt” etc. constitute an unreasonable restriction on the fundamental right to free expression guaranteed under Article 19(1)(a) and cause constitutionally impermissible “chilling effect” on speech. These meandering meanings are further exacerbated by harsh provisions that make seditious conduct both “cognisable” and “non-bailable” and punishable with a maximum sentence of life imprisonment.

CJI Ramana in preliminary hearings has pointedly asked the Attorney General whether “sedition under Section 124A of the Indian Penal Code is still required after 75 years of independence from colonial rule”. Referring to the offence being used by “the British to suppress the freedom” of legendary figures like “Mahatma Gandhi and Bal Gangadhar Tilak” (trials well covered by advocate Chitranshul Sinha in his 2019 work marking the 150th anniversary of the “sedition” law in India) and wondering aloud whether this law is still needed, the CJI said “the enormous power of this section can be compared to a carpenter being given a saw to make an item, uses it to cut the entire forest instead of a tree”.

The CJI was not too far from echoing Jawaharlal Nehru’s early views that the offence is “highly objectionable and obnoxious” and declared that the “sooner we get rid of it the better.” But he did not; and neither did the SC or the constitutional courts, save the 1958 Allahabad High Court opinion in Ram Nandan,which voided Section 124-A of the IPC.

Kedar Nath (1962) did not go this far but the SC held that it was “reasonably clear” that the IPC punishes only “such activities as would be intended, or have a tendency, to create disorder or disturbance of public peace by resort to violence”. Put differently, “disloyalty to a government established by law is not the same thing as commenting in strong terms upon the measures or acts of the government, or its agencies”. It is entirely constitutional if the intention is to “ameliorate the condition of the people or to secure the cancellation or alteration of those acts or measures by lawful means”; an offence is committed, however, if the intention is to excite “those feelings of enmity and disloyalty”, which tend to imply “excitement to public disorder or the use of violence”.

Already, some law luminaries have found new stirrings of hope in the Supreme Court, while some others have insisted that we must not void the section but rather, as the learned attorney general observed, find constitutional ways and practical means to prevent the abuse and misuse of law. Obviously, a most immediate step is to forbid rampant private complaints by citizens and authorise only very senior police officials to take appropriate action. We do not know what further arguments will be made and what the SC may eventually decide; but one hopes that the die is cast for a sedition-less Indian future.

We know a few building blocks for a future action that will combat what originated in colonial times. Is the situation then of (in Frantz Fanon’s terms) “black skins, white masks” or of colonial origins, and postcolonial misuse? The policy question is simple: Is the mighty sovereign Indian Republic so vulnerable to public and media criticism as to require the continuation of a colonial and repressive law? Directing the Government of India Press, on the pain of sanction, not to publish the voided sections of the law, or provisions which are read down, may be a necessary first step, but the real problem is to make political executive and law enforcement officials take most seriously the judicial directions reading down the criminal statutes. They should also learn, under judicial tutelage, to respect considered obiter dicta of the Court which are binding on all. Non-compliance with the law declared by the Supreme Court is fraught with momentous political and constitutional crises. Faced with this prospect, wisdom lies in the judicial repeal of Section 124-A. The foundational maxim that the mere possibility of abuse is no ground for the denial of power may only remain in place if the SC adopts the path of denying constitutional validity to the offence of “sedition”. Equally pertinent to judicial discourse from now on is the focus on the fact that neither the framers of the Constitution nor the authors of the amended Article 19(2) included “sedition” as a ground for “reasonable restriction” to freedom of speech and expression. Any creation of “public disorder” or “disturbance of public tranquility” is already upheld as a reasonable restriction in other draconian collective security laws in the State’s arsenal, though even these would not justify uses of criminal law outside its stated purposes. Democratic legality thrives on the axiom that powers given by the law must be exercised for the purpose for which it is given and for no other.

It is high time to realise that the law of “sedition” must go, even when it may strictly not even exist! That word occurs only once in the marginal note to the section, but the legislative text talks about acts like “disaffection”, “disloyalty”, “contempt” or “hatred”, which frontally menace free speech and expression. Such a note may be used to aid the construction of the section, but the offence of “sedition” does not actually exist. And what now needs to be judicially repealed wholly is Section 124-A at the bar of the fundamental human right to free speech. What Gandhiji said — the law may not be used to “manufacture affection” under pain of a penal sanction — was as true then as it remains now.