Sedition should be abolished, but courts must intervene when draconian laws are abused

*Paromita Das

The Supreme Court has stated that it sees no reason why the colonial-era crime of sedition should continue to exist in Independent India’s statutes, suffocating citizen liberty on an increasing number of occasions, and has asked the government to respond. The government’s lawyer has told the Supreme Court that it is willing to set parameters for invoking Section 124A of the Indian Penal Code, which deals with sedition. Sedition should no longer be available to police as a convenient trap for vocal dissidents, but this is insufficient.

Other laws are also being used by police to limit freedom and silence critics. What the court should do is impose severe penalties on police officers and members of the lower judiciary who frame charges under stringent provisions of the law, such as the National Security Act (NSA) and the Unlawful Activities (Prevention) Act, solely to silence criticism of the government, thus subverting the original intent of the law as well as the citizens’ right to liberty and free speech.

Section 124(A) of the IPC has become a popular tool for those in power to use to silence critics, particularly since the Modi government took office.
According to the National Crimes Record Bureau (NCRB), the number of people charged with sedition increased by 160 percent in 2019 compared to 2016. In 2016, one-third of prosecutions resulted in a guilty verdict, but by 2019, the conviction rate had dropped to 3.3%.

Lord Macaulay, the same gentleman who introduced English education in India, drafted the Indian Penal Code, guided by the firm conviction that the knowledge accessible through Sanskrit, Persian, and Arabic was paltry, even when compared to a contemporary English school textbook. Sedition was added to the IPC ten years later, in 1870, through an amendment. In 1898, the law was amended once more to include transportation for life as a punishment.
The leaders of the freedom movement regarded sedition with suspicion. That provision was used by the British against Balgangadhar Tilak and Mohandas Karamchand Gandhi. So, when the Constituent Assembly considered the draft presented by the chairman of the fundamental rights committee, Sardar Vallabhbhai Patel, who was completely unaware of the monumental follies to be perpetrated in his name decades later, it baulked: the right to free expression was sought to be qualified with, among other things, seditious speech. Somnath Lahiri, a socialist member, led the opposition to the provision. The final version of Article 19 on the right to free expression and the exceptions to it omitted any mention of sedition.
The courts rejected the government’s attempts to conduct a pre-publication review of the journal. Furthermore, state-level laws to abolish zamindari and redistribute land, giving primacy to right property, were being defeated or delayed by high courts.

Under the Madras Maintenance of Public Order Act, the Madras government banned Cross Roads, a Communist-oriented magazine edited by Romesh Thapar, whose sister Romila Thapar remains an active voice in contemporary public discourse. Communists were a powerful force in newly independent India, and they went on to form the largest single Opposition group in the first Lok Sabha. They were viewed as a threat because no one could predict their eventual marginalisation in the political arena under the ‘leadership’ of an armchair dogmatist.
Romesh Thapar successfully challenged the ban in the Supreme Court. The Supreme Court overturned the ban, ruling that a threat to public order did not constitute a threat to state security, which was deemed a sufficient condition for restricting free speech under the Constitutional guarantee of free speech as originally presented. The government order requiring pre-publication review of the contents of the Organiser, published by Brij Mohan, was similarly overturned as a violation of the right to free expression.
The final straw was a Patna high court ruling in which Justice Sarjoo Prasad invalidated the state government’s efforts to regulate the printing preferences of Bharati Press, which is run by Shaila Bala Devi. The press distributed a leaflet called Sangram, which purported to carry the goddess Kali’s demand for blood and revolution. According to Abhinav Chandrachud’s 2020 book, Republic of Free Speech, the judge wrote that incitement to murder was free speech protected by Article 19.1(a).

So, with Nehru as Prime Minister, Patel as Home Minister, and BR Ambedkar as Law Minister, the government proposed the first amendment. It limited our fundamental rights in several ways.
In fact, Section 124 was amended further in 1955 to replace life imprisonment as the maximum penalty for colonial-era transportation for life.
Even back then, sedition or seditious speech were not among the exceptions to the right to free expression. In fact, Nehru railed against the crime of sedition on the House floor, calling it obnoxious and objectionable. However, he did not repeal it during his lengthy tenure as Prime Minister. In fact, Section 124 was amended further in 1955 to replace life imprisonment as the maximum penalty for colonial-era transportation for life.
In the United Kingdom, sedition was struck down by a court order in 2009. However, the evil they brought with them lives on in India. If India abolished the charge of sedition, it would be another step toward decolonization.

In the case of sedition, Supreme Court rulings have been fairly clear that a charge of sedition will not hold unless there is express incitement of violence against the state. The case of Balwant Singh and Bhupinder Singh, two Punjab civil servants who shouted ‘Khalistan Zindabad, Hindustan Murdabad’ and ‘Raj Karega Khalsa’ during the unrest following Indira Gandhi’s assassination on October 31, 1984, had been convicted for Sedition by lower courts but later acquitted by the Supreme Court.
Even if Sedition is repealed, Indian citizens’ liberty would still be jeopardised by the arbitrary application of draconian laws like the NSA and UAPA. NSA and UAPA have been used to imprison anyone the state does not like for long periods of time, with no penalty for those who booked them under these laws or for those who framed charges under these laws to allow imprisonment awaiting trial, which often takes years and results in acquittal.

Other sections of the IPC may also be abused. Section 153A addresses the promotion of animosity between groups. 153B deals with making a statement that is likely to cause discord or hostility toward a group.
Section 268 deals with causing public annoyance. All of these are ill-defined, ambiguous, and ripe for abuse.

People are frequently acquitted after serving seven, nine, or more years in prison, having been arrested under draconian laws, wasting their youth behind bars, denied the opportunity to establish a career or start a family — with no penalty to pay for the state or its agents.

Those accused of a terror plot in the aftermath of the Bhima Koregaon violence have been imprisoned since mid-2018, with the state making no effort to initiate prosecution. If there is evidence, the accused should be prosecuted; otherwise, they should be let go.
Police officers who arbitrarily levy such charges against people, as well as the lower judiciary who gladly agrees to formally frame such charges against the accused, should face harsh penalties for infringing on citizen liberty guaranteed by the Constitution they have sworn to uphold. The state should compensate the victims and recoup the funds from officials who had reasonable grounds to believe they were acting in bad faith when they framed those charges and violated citizens’ rights. If the Supreme Court orders such provisions, it will help the cause of liberty. Simply prohibiting sedition would not suffice.