French author Andre Gide once said, “Everything has been said before, but since nobody listens we have to keep going back and beginning all over again.” This captures the current state of the debate on sedition in India. The 279th Law Commission Report, laying down the grounds for retaining sedition, is starkly symbolic of how “nobody listens.” The Commission has made three significant recommendations. The first is that Section 124A of the Indian Penal Code, which contains the law of sedition, be amended to incorporate the meaning of sedition which was laid down by the Supreme Court in Kedar Nath Singh v. State of Bihar in 1962. The second is that the minimum sentence be increased from three to seven years. The third is that First Information Reports (FIR) in sedition cases should be registered only after a police officer, holding the rank of an Inspector or higher, makes a “preliminary enquiry.”
The ‘tendency’ jurisprudence
In proposing that an amendment be made to the law by adding the words “tendency to incite violence,” the Commission deflects attention to the ambit of criminality rather than focusing on the source of criminality. The proposed amendment will not fundamentally alter the meaning of sedition as the offence of inciting hatred, contempt and disaffection against the government. The source of the crime remains political speech against the representative government in a democracy. The Commission claims that only those forms of expressions will be penalised which have a “tendency” to incite violence, but muddies the legal waters further by adding that “tendency” means “mere inclination to incite violence rather than proof of actual violence or imminent threat to violence.”
