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.”
Editorial | End the debate: On the Law Commission’s recommendation on sedition
This recommendation takes us back to the problem that was sought to be remedied by repealing sedition. ‘Tendency’ is a loose formulation which allows for those expressions to be brought within the ambit of law which have no proximate connection or direct causality with public disorder. The ‘tendency’ jurisprudence is an ambiguous standard for any judicial and executive mind, and the nine petitions currently pending before the Supreme Court, filed by persons who were arrested under the sedition law, as well as journalists and former service officials, reiterate this point.
Police power
After nearly two years of back and forth between the judiciary and executive in debating the validity of the law, the only addition to the existing scheme is the Commission’s proposal that the police conduct a preliminary enquiry. However, as there is an even more ambiguous standard against which the police have to now judge a particular act on “mere inclination to violence,” when no proof of violence or even actual threat to violence is needed, the Commission’s proposal will cast a wide net on any act that appears seditious. A preliminary enquiry by a police officer will not remedy the fact that celebrating the victory of a rival cricket team or wearing their jersey might still be material which has the “tendency” to incite violence because the proposed amendment asks the police to not look for imminent threats to violence or proof of violence. It paves the way further for police power to reign, especially where the FIR results from complicity with those who have local, state, or national political clout.
The Commission also disregarded developments in foreign jurisdictions which have invalidated sedition laws stating that the “ground realities” are different in other countries. In fact, it turns a blind eye to the ground realities in India. One of the reasons why the Supreme Court in 2021 admitted multiple petitions challenging the constitutionality of Section 124A was the confusion caused by the Kedar Nath Singh precedent. If the ratio laid down in Kedar Nath Singh succeeded on the ground, India would not have today 174 cases of sedition filed against nearly 950 individuals for criticism of the government, or for acts such as watching a video or dancing to an “offensive” song. These data are borne out in ‘A Decade of Darkness,’ a study by Article14 documenting all the cases of sedition filed since 2010.
A colonial law
In retaining sedition, it is clear that the message to the local police officer is to decide whether or not, for instance, a person holding a poster is “inclined” to incite violence without an actual threat to violence. These are not one-off instances of ‘misuse’ of the law that can be remedied via procedural reform; they instead make any of us potential seditionists. In such a case, the person will have to undergo the social stigma of being labelled a ‘traitor’ even before a trial is concluded, face a pre-trial system that favours incarceration over bail, face lengthy trials that result in more acquittals than convictions, and face punishment which has increased in gravity.
Finally, the Commission cites continuities from colonial times, such as the civil services and the police system, to justify sedition. It fails to distinguish ‘colonial’ as a merely historical category from a political system marred by domination, violence and inequality. Sedition is a colonial law because it creates a relationship of suppression between the political rulers and subjects, one that precludes accountability and a right to question. No linguistic change and procedural reform can remedy the problem that Section 124A poses in a post-colonial democracy.
Lubhyathi Rangarajan is Editor-Databases at Article-14, and led ‘A Decade of Darkness’, a study into the use of sedition in India; Anushka Singh teaches at Dr. B.R. Ambedkar University Delhi, and is the author of ‘Sedition in Liberal Democracies’
