The Law Commission of India has recommended that the 153-year-old colonial law on sedition — which was used by the colonial government against leaders of the stature of Lokmanya Tilak and Mahatma Gandhi — be retained.
In support of its recommendation, the commission cited the ever-proliferating role of social media in propagating radicalisation in the country and making the government a target of hatred.
The panel said to safeguard the unity and integrity of India, Section 124A of the IPC (sedition law) serves to be the “traditional penal mechanism” and emphasised that prompt and effective suppression of disintegrating tendencies is in the immediate interest of the nation.
According to the commission, headed by former Karnataka High Court Chief Justice Ritu Raj Awasthi, “The ever-proliferating role of social media in propagating radicalisation against India and bringing the government into hatred, many a times at the initiation and facilitation by adversarial foreign powers, all the more requires such a provision to be present in the statute”.
The panel, in its report submitted to the government, said that Section 124A of the IPC has its utility in “combating anti-national and secessionist elements as it seeks to protect the elected government from attempts to overthrow it through violent and illegal means”.
The operation of Section 124A in the IPC — a non-bailable offence punishable with life imprisonment or up to three years in jail, is currently on hold due to a continuing interim order of the Supreme Court passed on May 11, 2022.
Insisting on retaining sedition in the IPC, the panel said that the Supreme Court while dealing with the constitutionality of Section l24A in Kedar Nath Singh case, in its verdict in 1962, held that Section 124A was constitutional as the restriction it sought to impose on the freedom of speech and expression was a reasonable restriction under Article 19(2).
The panel stressed that even though there are central and state laws to deal with terror cases (like the Unlawful Activities Prevention Act, 1967 and the Maharashtra Control of Organised Crimes Act, 1999, etc.), Section 124A of the IPC serves to be the traditional penal mechanism to address the issue (the unity and integrity of India).
According to 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 per cent and 33 per cent,” said the report.
The panel said that while the political class may be accused of misusing the sedition law, the root of the problem lies in the complicity of the police and sometimes, in an overzealous attempt to please the political masters, the police action in this regard becomes partisan and not as per the law.
“Even though, in our considered opinion, it is imperative to lay down certain procedural guidelines for curbing any misuse of Section l24A of IPC by the law enforcement authorities, any allegation of misuse of this provision does not by implication warrant a call for its repeal,” said the report.
The panel noted that UAPA is a special law dealing with activities of a terrorist or subversive nature, National Security Act (NSA) is a law only dealing with preventive detention.
“Generally speaking, special laws and anti-terror legislations dealing with national security such as these seek to prevent or punish the commission of offences targeted towards the State. On the other hand, Section 124A of IPC seeks to prevent the violent, illegal, and unconstitutional overthrow of a democratically elected government established by law. Hence, the existence of the former does not by implication cover all elements of the offence envisaged under Section 124A of IPC,” said the report.
Against the backdrop of comparative study of sedition laws in other jurisdictions, cited in the report, the panel said: “It is evident that even in some of the most advanced democracies around the world, mere cosmetic changes have been affected in the law of sedition, without taking away the core substance of the offence. These comparative jurisdictions like the US, UK, etc. have their own history, geography, population, diversity, laws, etc. which are not comparable to Indian circumstances.”
The panel stressed that despite this, what some of these countries have actually done is that they have merged their sedition law with counter terror legislations.
To prevent any alleged misuse of Section 124A of the IPC, the panel suggested that a mandatory recourse, similar to as provided under Section 196(3) of the Code of Criminal Procedure, 1973 (CrPC), should be undertaken prior to registration of a FIR with respect to commission of an offence under this section.
The commission said, Section 154 of the CrPC could be amended to hold that an FIR under Section 124A would be registered only after a police officer, not below the rank of Inspector, conducts a preliminary inquiry, and the Central or the state government could grant permission for registering the FIR on the basis of the report made by the officer.
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