It’s time to break-up: Sedition law in India

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The relationship between the law of sedition and the Indian Penal Code (IPC) goes a long way back, all the way to the inception of the IPC. History suggests that the said piece of legislation has faced a plethora of

With the passage of time, the Indian administrative system has undergone many changes. The way the laws were administered during the pre-independence period was different from the post-independence period. The pre-independence intention was to govern the subjects while the post-independence intention is to-be governed. The difference between these intentions is vast and thus it would be prudent for the lawmen to realize the need to alter/modify the laws, which are intended for colonial subjects, rather than for “Independent India”

To analyze the law of sedition and its need in the present Independent India, I shall take the help of one of the principles of Interpretation of Statutes, specifically, the principle of contemporaneous exposition. The principle may not be applicable to this situation completely but shall provide the authority to look back into the history of this legislation and inspect whether the principle enumerated through this law can be adapted in this “Independent India”.

As stated, the maxim Contemporaneous exposition is the principle of Interpretation of statutes which is used whenever there is some ambiguity in the law and where the judiciary is required to interpret and apply the law in the rightful manner. This principle empowers the judiciary to look back into the history of legislation and know the intention of the legislature which is enacting the law. It places the judiciary into the shoes of the legislature and allows them to feel the law in the manner in which it was enacted. I shall try to do the same and produce, through this article, the argument as to why we need to “break-up” from the law of sedition.

The Great History

Our journey begins right from the year 1837 when Lord Macaulay was working on the Indian Penal code. Lord Macaulay introduced the clause of sedition in the Draft Indian Penal Code as clause 113. Initially, the 1860 Act of Indian Penal Code did not incorporate the suggested clause  later but in the year 1870 this omission was corrected and the birth of sedition took place.

It is important to note that there was a sense of empowerment among the British authorities after the incorporation of such laws into the legislation. The reason being, such a law gave the tools to the authorities to suppress the ongoing increase of Wahabi activities. They were susceptible to the movement, which thereby created fear of loss which resulted in the incorporation of section 124A, a draconian law.

It seems certain that the reason to bring in such a tool was to suppress not the reasonable voices but to protect the administration, not to incorporate developing ideas but to press down on the voices against the British, not to serve the people but to rule. If such a law persists then it implies that Independent India supports such an idea, but the question is, does it?

Post-Independence scenario

The taste of power vis-à-vis politics, as history suggests, is an addictive phenomenon. Power inherits the tendency to corrupt the mind of people that possess it. Unfortunately, this corrupt tendency generates in them the feeling of retaliation against anything that has the capacity to shake this power. The result of this led the legislatures to carry on this draconian law in the post-independence era. As rightly pointed by Rajeev Dhavan, “The imperial powers of a foreign government are transformed into the normal power of an independent regime.”

This argument may not be correct sensu stricto, during the first amendment in the Constitution of India, the then Prime Minister Jawaharlal Nehru made an apt observation when he stated:

“Take again Section 124-A of the Indian Penal Code. Now so far as I am concerned that particular Section is highly objectionable and obnoxious and it should have no place both for practical and historical reasons, if you like, in any body of laws that we might pass. The sooner we get rid of it the better. We might deal with that matter in other ways, in more limited ways, as every other country does but that particular thing, as it is, should have no place, because all of us have had enough experience of it in a variety of ways and apart from the logic of the situation, our urges are against it. I do not think myself that these changes that we bring about validate the thing to any large extent. I do not think so, because the whole thing has to be interpreted by a court of law in the fuller context, not only of this thing but other things as well. Suppose you pass an amendment of the Constitution to a particular article, surely that particular article does not put an end to the rest of the Constitution, the spirit, the languages, the objective and the rest. It only clarifies an issue in regard to that particular article.”

This resulted in inclusion of words like ‘public order’ and ‘relations with friendly states’ into Article 19(2). Also the word ‘reasonable’ before ‘restrictions’ was added, which was meant to provide a safeguard against misuse by the government. It was quite clear in the minds of the legislature that the law could be misused and therefore the amendment was needed in order to narrow down the applicability to the extent of reasonableness.

Following this, the law faced a list of cases in apex court of the nation where the constitutionality of the words enumerated in the concerned sections were challenged and the court brought out the minute clarities and molded the meanings in the most suitable sense which complied with the principles of independent India. But it would be pertinent to note that the purpose of law was to suppress the subjects instead of creating ‘reasonable’ defense against harmful speeches. Judiciary can mold the law to remove ambiguity and can interpret to remove the difficulty in understanding and its application, but what it cannot do is change the law created with a particular intent to achieve some other purpose. And therefore, the law of Sedition i.e. section 124A should be removed from the Indian Penal Code.

The concern may arise: what shall fill the gap created by the removal of the law? How shall speech which creates “incitement to imminent lawless action” be tackled, as required to be covered under reasonable restrictions, to be criminalized, as stated in Indra Das vs. State of Assam (2011) 3 SCC 380. How shall the post amendment scenario be faced? The answer to these questions is quite simple, there are sufficient number of laws which are preset in one form or the other. Laws which govern the conduct of its subjects to be executed in a particular manner. There are sufficient laws capable to tackle situations creating imminent lawlessness, either through speech or conduct or in any other form, against the state. Therefore, the law is not only an additional burden but a powerful tool to be misused, due to its ambiguous nature. And thus, the law should be repealed just like a way similar law that was removed by England itself in the year 2009.

The argument presented above espouses the abolition of sedition under section 124A of IPC. But the concern may not be restricted to the one raised above in the form of above questions against the idea of repeal rather they may stretch longer. The best that can be done to accommodate the concern is to narrow down the ambit of the section by specifying certain conducts to be covered under the section. This may reduce the ambiguity, resolve the objections and fulfill the need of specific laws to be present in the statute book.

The country awaits the action of the legislature in this regard. People have been objecting to the law right from the independence of the country but it is the need and not the merits of the law which has led to its survival thus far. The time has come to decide our fate. All eyes are now on the legislature!

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