SHOULD THE SEDITION LAW BE SCRAPPED?

Why in news?

• On March 2, a 43-year-old man was charged with sedition after he allegedly chanted pro-Pakistan slogans before the mini Vidhan Soudha at Kundapur in Karnataka’s Udupi district.
• Last month, the police arrested a school principal and a parent in Bidar, Karnataka, for an allegedly seditious and inflammatory play against the Citizenship (Amendment) Act (CAA).

Facts:

• Data from the National Crime Records Bureau (NCRB) show that 194 cases of sedition have been filed since the CAA was passed on December 11, 2019. More cases of sedition have been filed since December 11 than in the last three years put together, according to NCRB data.
• The data also show that while the number of sedition cases filed has been going up every year (numbers for sedition cases started being recorded from 2014) in the last four years, only four cases actually resulted in conviction.

Sedition law is necessary ?

• The point of the sedition law is essentially that of suppressing free speech and free thought, both of which are unpopular with the government.
• In many of these cases, sanctions are also not given, but it is a useful tool in the hands of the local policemen who can first register a case.
• It’s also a useful tool in the hands of a local leader or the head of some faction who wants to shut down a particular dissenter in the locality.
• Most cases that are filed would not end in conviction if Section 124A, as read by the Supreme Court in Kedar Nath Singh (1962), is actually applied — often the speech complained about does not result in any actual incitement to violence whatsoever.
• Sedition is an offence which existed in our Indian Penal Code (IPC) before we got Independence because the colonial master wished to penalise anybody who was trying to overthrow the state.
• In the Bidar case, where a parent and the principal of a school were charged with sedition for staging a play critical of the CAA, it was misused — to bully and terrorise small children and a young woman.
• The Supreme Court, in its interpretation of Section 124A, clearly says that it has to be against the state, not against the government.
• So, sedition is a very specific and a very serious offence, and when it is used to silence and terrorise the ordinary citizen who is raising a grievance, it is terrorism by the state.

Why has it survived in the IPC for so long?

Historical background:

• Sedition as a concept comes from Elizabethan England, where if you criticised the king and were fomenting a rebellion, it was a crime against the state.
• When they ruled India, the British feared Wahhabi rebellion. They brought the [sedition] law in, and it was used against our freedom fighters as well.
• We must remember that both Mahatma Gandhi and [Bal Gangadhar] Tilak were tried under this law and sentenced. 
• Government didn’t remove it because every administrator has this thought that dissent is okay, but beyond a certain point it gets dangerous and an administration must have the means to control it. 
• Previously policemen were much more independent.
• But since Indian independence, the independence of the police has also been severely compromised.
• So, any local leader can almost bully a policeman into registering a case.

• It falls on the judiciary to protect Articles 19 and Article 21 of the Constitution.
• Justice Kurian Joseph recently made some anguished remarks that the police is neither independent nor professional.
• It’s true that the police have become totally politicised, but who is to stop this? Who is to guard us?
• It is the judiciary that has been charged with this job and they can’t expect the ordinary citizen to always come to the court.
• Our legal aid system is just not as robust as it should be. The problem is not with the section, but with its abuse.
• The question is, why has the guardian of our Constitution, the judiciary, with all its powers, failed to put an end to it and reassure the citizen that the right under Article 19 right is protected by the judiciary?
• So, any provision can be misused. If this law is removed, some other law will be misused. The judiciary really needs to start acting.

Background:

About Sedition law:

The law was originally drafted by Thomas Macaulay. Since its introduction in 1870, meaning of the term, as well as its ambit, has changed significantly.

Sedition is a cognisable, non-compoundable, and non-bailable offence, under which sentencing can be between three years to imprisonment for life. The Indian Penal Code in Section 124A lays down the offence:

“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, to which fine may be added, or with imprisonment which may extend to three years, to which fine may be added, or with fine.”

Constitutionality:

In 1962, the Supreme Court, while curtailing the extent of its application, upheld its constitutionality. Then Chief Justice BP Sinha, in the Kedar Nath case, observed: “Every state, whatever its form of government, has to be armed with the power to punish those who by their conduct, jeopardise the safety and stability of the state, or disseminate such feelings disloyalty as have tendency to lead to the disruption of the state or to public disorder.”

But In a landmark judgment (Shreya Singhal v Union of India, 2015), the Supreme Court eventually struck down the restrictive provision of Section 66A of the Information Technology Act, 2000.

The Supreme Court minutely examined the content of Article 19(1)(a) and the extent of restriction that could fetter this invaluable right. It held that we have the echoes of the test of “clear and present danger” enunciated by the U.S. Supreme Court in our laws as well.

It was in this context that our Supreme Court held that Section 66A would not pass muster “as it has no element of any tendency to create public disorder which ought to be an essential ingredient of an offence that it creates.”

What is Right to Dissent?

The Supreme Court observed that “dissent is the safety valve of democracy”. Therefore, right to dissent and the right to not agree becomes very important aspect of any democratic institution.

Citizens’ have right to disagree with, denounce, and decry a situation or state of affairs that is unjust and oppressive. This pluralism of views and liberty to express any thought process within constitutional boundaries is one of the salient features of a democracy.

• Recently, while hearing a petition on the ban of protest on the Jantar Mantar in New Delhi, the SC held that Right to peaceful protest is the fundamental right guaranteed under the constitution. However, this particular right is also subject to reasonable restrictions in the interest of sovereignty and integrity of India, as well as public order.
• A distinguishing feature of any democracy is the space offered for legitimate dissent, which cannot be trampled by any executive action. Thus, the Court recognises that legitimate dissent is a distinguishable feature of any democracy.