Sedition law review litmus test for govt, courts

Jawaharlal Nehru Chair and professor of International law, JNU

All civilised democratic societies practise the adage that a law must keep in tune with the changing needs of a society. It vividly came true on May 11, when the Supreme Court took the historic step to heed to the chorus for a review of the 162-year-old colonial-era Section 124A of the Indian Penal Code (IPC). It also brought to the fore the relevance of the SC’s own wisdom in Kedarnath Singh vs State of Bihar (1962).

It appears the stage was set, notwithstanding the protests of top law officers of the Union of India (UOI), after the Prime Minister’s assertion at the meeting of the chief ministers and chief justices on doing away with outdated laws. The SC order duly took note of this. “The Hon’ble PM believes that…we need to, as a nation, work even harder to shed colonial baggage… In that spirit, the Government of India has scrapped over 1,500 outdated laws since 2014-15…(as they) have no place in today’s India,” the May 9 affidavit of the UOI said.

The tool of ‘sedition’ was used by the British government against Mahatma Gandhi (1922) and Lokmanya Tilak (1897, 1909 and 1916). Their steadfast stand during the trials gave a fillip to our freedom struggle. However, there has been gross misuse of the sedition law in independent India. In 1962, the five-judge Bench of the SC refused to see if the compulsions of the British rulers were applicable to the rulers of free India. “We may add that provisions of the impugned sections, impose restrictions on the fundamental freedom of speech and expression, but those restrictions cannot but be said to be in the interest of public order and within the ambit of permissible legislative interference,” the 1962 SC judgment said.

Successive governments at the Centre and in the states have widely invoked this criminal law to keep at bay all kinds of critics and opponents. The figures presented by the lawyers have riled the conscience of the SC. Out of 800 sedition cases filed across India, 326 cases were registered between 2014 and 2019, only six have been convicted and 13,000 people are reported to be in jail. These excesses have forced both the Centre and the SC to review the sedition law. “It is clear that the Union of India agrees with the prima facie opinion expressed by this court that the rigours of Section 124A of the IPC is not in tune with the current social milieu, and was intended for a time when this country was under the colonial regime,” the SC order said.

It is indeed significant that after consistent opposition by the counsels for the Centre to a review of the 1962 judgment, the U-turn seems well-calibrated. The UOI affidavit has explicitly placed on record the views of the Prime Minister. It’s a rarity in legal history. It seems to have obviated the potential striking down of the ‘sedition’ provision. Is it a big surprise that changed times have placed Section 124A itself on trial?

What the top law officers of the UOI could not read, the political minds have done. The UOI affidavit has said it all. This dramatic turn has given leeway to the SC and saved face for the UOI. In this saga, the phrase “Section 124A is not in tune with the current social milieu” sounds loud and clear.

At the global level, the human rights renaissance has swept the peoples and nations. Under the watchful eye of the United Nations Human Rights Council, all UN member countries provide their performance cards. Through the growing mosaic of the Universal Periodic Review and the instrumentality of special rapporteurs and experts, countries laboriously seek to come clear on how they treat their own people. Several democratic countries such as the UK and Australia have abolished their sedition laws though some have retained ‘treason’.

In abolishing the offence of ‘sedition’ in 2009, the UK government kept in view how the former colonies justified their laws: “Sedition and seditious and defamatory libel are arcane offences — from a bygone era when freedom of expression wasn’t seen as the right it is today… the existence of these obsolete offences in this country had been used by other countries as justification for retention of similar laws which have been actively used to suppress political dissent and restrict freedom.”

In Australia, the sedition law remained defunct for half a century. It surfaced when the Howard government introduced Anti-Terror Act (2005). However, under public pressure, it had to provide defence for acts in ‘good faith in Schedule 7 (sedition), especially for the reporting of news and matters of public interest’.

The First Amendment to the US Constitution provides emphatic guarantees against any “abridging the freedom of speech, or of the press”. It was enacted as the Bill of Rights (1791) that forbids the Congress to infringe upon the freedoms concerning religion, expression, assembly and the right to petition. Still, in 1798, the US Congress enacted “an act for the punishment of certain crimes against the United States”. With its expiry, another act in 1918 came during the First World War. However, it was repealed in 1921. In a landmark ruling in New York Times Co v Sullivan (1964), the US Supreme Court upheld the freedom of speech guaranteed under the First Amendment. It used the threshold of “actual malice” i.e. “made with knowledge of its falsity or with reckless disregard of whether it was true or false”.

Thus, the SC’s May 11 order is a great balancing act that concedes space to the democratically elected government to pursue the legislative pathway. However, the halo of legitimacy earned by the PM in the ‘repeal’ of the colonial laws has been placed at the altar to thwart judicial inroads. Who will now bell the proverbial cat of Section 124A? Time will provide the answer.