After SC order, there’s hope

Section 124A of the Indian Penal Code (IPC) – sedition -- was introduced in 1890 by the British Crown in view of the movement for Indian independence. Using the law, the colonial rulers came down heavily on Indian leaders such as Bal Gangadhar Tilak, Mahatma Gandhi, Shaukat Ali, Veer Savarkar, etc., deporting them, putting them behind bars, or meting out other harsh punishments.

As amended in the year 1955, sedition reads as, “Whoever, by words, either spoken or written, or by signs, or by visible representation, or otherwise, brings or attempts to bring into hatred or contempt, or excites or attempts to excite disaffection towards the Government established by law in India shall be punished with [imprisonment for life]…”

No need for sedition law

Article 19(1)(a) of the Constitution guarantees freedom of speech and expression as a fundamental right. However, the presence of this colonial anachronism – the sedition law -- has hampered the exercise of this freedom, and governments have used it to suppress and quash political opposition and dissent.

Section 124A is an outdated statute and it should have no place in a society built on the principle of free speech. The wording of the statute is overbroad and vague, allowing misinterpretation by the authorities. It is thus open to routine misuse to stifle dissent or to simply arrest people even when the facts do not fit the threshold of what sedition entails.

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In recent years, the law has been wielded against opposition leaders, human rights activists and advocacy groups who have dared to dispute the government’s stand.

As per data from the National Crime Records Bureau (NCRB), the number of sedition cases filed grew in 2020, the most recent year for which NCRB data is available, but only 23 of the 230 total instances reported were charged. Of the 10,938 Indians charged with sedition in the 2010-2020 decade, 65% were charged after May 2014 when the Modi government took office.

Journalist Siddique Kappan, who was arrested in Hathras on charges of sedition and UAPA, has been languishing in Mathura jail for almost two years now -- only on the suspicion that he “did not write like a responsible journalist” and was trying to instigate anti-national activities. Kappan’s is one of many such cases. There are many other cases where institutional suppression was orchestrated by the administration by gross misapplication of this law.

Once sedition is slapped on someone, then what follows is a chain of abuse of the law. Such abuse is exacerbated by the inability to get bail from the lower courts and, in certain cases, even the High Courts deny bail to the accused because of the overbroad scope of the law.

The conviction rate for sedition is dismally low. If someone is pulled up under sedition, the accused is likely to be imprisoned for up to 50 days until a trial court grants bail, and up to 200 days until a High Court grants bail. Travesty of justice can be seen every time one is denied bail only because the State assumes that a certain act is seditious in nature and the burden falls on accused to prove it otherwise against the might of the State.

SC order

The constitutionality of Section 124A of IPC has been questioned in the Supreme Court. The Supreme Court is hearing a bunch of writ petitions by journalists Kishorechandra Wangkhemcha and Kanhaiya Lal Shukla. The petitioners have pleaded that Section 124A be declared unconstitutional as substantial elements in the law and society have transformed since Kedar Nath Singh v. the State of Bihar, rendering the application of reasonableness to Section 124A obsolete.

On May 11, a Supreme Court bench hearing these petitions led by Chief Justice of India N V Ramana stated that this statute was meant to maintain colonial control and that it should not be employed until further orders were issued. The Supreme Court’s order has kept sedition under abeyance until it rules on the constitutionality of the law.

As per the central government’s affidavit, Section 124A is being evaluated in light of protecting rights and freedoms from archaic colonial legislation. The Union also emphasised on the misuse of Section 124A. Initially, the Union was opposed to a stay on the law. Later, the government appeared to concur with the court’s preliminary ruling to stay this section. In view of this, the court ordered that it was appropriate not to continue the utilisation of this statute until its legitimacy was determined.

The Supreme Court’s order came as a relief as it directed that there shall be no FIRs, investigations, or any action taken under Section 124A. The order also affirmed that no new charges and no fresh sedition case can be framed until it ruled on the constitutionality of section 124A. The Supreme Court has opined that Section 124A is prima facie unconstitutional, and the Union is reviewing this provision. Courts must issue bail and dismiss FIRs in conjunction with Section 124A as soon as possible. The bench has tabled that the writ petitions be scheduled for final adjudication on July 18.

While the existing order is a stopgap measure until the court rules on the constitutionality of Section 124A, it holds critical value because the apex court, and even the central government, have validated the claim of civil society and journalists that there has been gross misuse of this law.

The order came as a beacon of hope for citizens, activists, journalists and all dissenting voices. Given the greater societal framework in which the law of sedition as well as other repressive laws, including the UAPA, function, this observation is significant. It is time for the colonial-era law to go.

(The writers are students of law based in Delhi)