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The sedition law became obsolete in the UK in the 1960s and was finally repealed in 2009. After it upheld the sedition law in 1962, the Supreme Court’s decision to revisit the constitutional validity of this colonial provision is a crucial inquiry. Section 124A of the Indian Penal Code, which defines the offence of “sedition”, penalises exciting “disaffection” against the government established by law, or bringing it into “hatred or contempt”. The sweeping nature of the provision is not just the words in the definition but also in the punishment prescribed — life imprisonment with an added fine or an additional jail term of three years. The provision was incorporated in its current form in the penal code (IPC) in 1898, nearly four decades after the IPC was introduced and has withstood the test of constitutionality since. After at least two high courts — Punjab and Allahabad — struck down the sedition law as an exception to free speech in the 1950s, a five-judge bench of the Supreme Court in Kedar Nath Singh vs State of Bihar (1962) upheld its constitutionality. However, the SC restricted it only insofar as seditious speech tended to incite “public disorder”, a phrase the provision itself does not contain but was read into it by the Court. In its “guidelines” on using the new, restrictive definition of sedition law, the Court said not all speech with “disaffection”, “hatred,” or “contempt” against the state but only speech that is likely to incite “public disorder” would qualify as sedition. It is a welcome sign that the government, after its initial defence of the law, has told the Supreme Court that it would re-examine the provision.
On Monday, referring to the prime minister’s views on shedding colonial baggage as the country marks 75 years since independence, the Home Ministry asked the SC to defer the hearing for now till a “competent forum”, presumably Parliament, deliberates on the issue. The sedition law became obsolete in the UK in the 1960s and was finally repealed in 2009. Last year, Singapore, which like India inherited colonial English law, repealed the law stating several new laws can sufficiently address issues that were under the ambit of the sedition law. Hopefully, the government’s changed stance is not meant to foreclose the prospect of review and push reform into cold storage.
The government emphasises the “need for balance” in affidavits before the Court but not while invoking the provision against comedians, journalists and ordinary citizens expressing their dissatisfaction with the government. Successive reports of the Law Commission and even the Supreme Court have reported the rampant misuse of the law. The authority to identify and distinguish genuine expression of speech from seditious speech cannot be the police. Magistrates who are the first defenders of citizen’s rights in the judiciary often allow the pleas of the state as a matter of routine and without proper application of mind. Whether the government decides in favour of repealing the law or not, the Court must take this endeavour to its logical conclusion. The matter is too significant to be put on ice.
This editorial first appeared in the print edition on May 10, 2022 under the title ‘Don’t step back’
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