Unpacking Sedition 2.0 in New Criminal Law Bills: Here's How It Gets Stricter

Do the new bills do away with sedition? Or has it only been repackaged?

(Photo: The Quint/Namita Chauhan)

“The offence of sedition cannot be invoked to minister to the wounded vanity of the governments.”

- Niharendu Dutt Mazumdar v Emperor, 1942

As Home Minister Amit Shah tabled three bills aimed at overhauling criminal laws in India, on Thursday, 10 August, he told the Lok Sabha:

"Everyone has the right to speak. We are completely repealing sedition.”

While the word sedition (currently under Section 124 A of the IPC) finds no place in the new bills, a more stringent and draconian version of the provision has made its way as “acts endangering sovereignty unity and integrity of India" under Section 150 of the  Bharatiya Nyaya Sanhita, 2023.

Sedition: The Story So Far

The law on sedition was a seed planted by the British, which later on went to become one of the most misused provisions to curb free speech. The word sedition means any act, speech, publication either orally or in written form made with an intent to incite a group of people to rebel against the sovereign or the elected authority of the state.

Because of this definition,  even a mere critical comment on the working of the authority of the state or the monarch was treated as a seditious act.

In India, while there have been instances where the judiciary has upheld the validity of Section 124A, it has also clarified that mere ‘disagreement’ with the government in power does not amount to sedition.  

In the case of Kedar Nath Singh vs State of Bihar (1962) the Supreme Court upheld the constitutionality of Section 124A of the IPC, it laid down important guidelines. It held that for an act to be considered seditious, it must involve a direct incitement to violence or public disorder.

In the case of Balwant Singh vs State of Punjab (1995), the Supreme Court ruled that raising slogans like "Khalistan Zindabad" did not necessarily amount to sedition if it was not accompanied by violence or intention to create disorder. 

In the case of Binayak Sen vs State of Chhattisgarh (2011), the Supreme Court came to the rescue of Binayank Sen, a doctor and activist, who was charged with sedition. While granting bail to Sen, the Supreme Court came down heavily on the state government for misusing the sedition law arbitrarily. 

More recently in 2021, one of the most debated cases has been that of activist Disha Ravi, who was charged with “sedition” for allegedly creating a so-called “toolkit”. While granting bail  to Ravi, a Sessions Court in Delhi made strong observations against the use of sedition law to curb dissent by jailing dissenting citizens:

"Citizens are conscience keepers of government in any democratic Nation. They cannot be put behind the bars simply because they choose to disagree with the State policies…Difference of opinion, disagreement, divergence, dissent, or for that matter, even disapprobation, are recognised legitimate tools to infuse objectivity instate policies. An aware and assertive citizenry, in contradistinction with an indifferent or docile citizenry, is indisputably a sign of a healthy and vibrant democracy.”

In 2020, there was yet another incident where the students of the Shaheen Education Society from classes 4, 5 and 6 had staged a play on the Citizenship Amendment Act (CAA) and National Register of Citizens (NRC) and an FIR was registered at the Bidar New Town police station, against the school authorities for performing "anti-national activities" and "spreading negative opinion.” The head mistress of the High School and Nazbunnisa, the mother of a student, were arrested over sedition charges and later released on bail. In June this year, the Karnataka High Court dropped the sedition charges.

These incidents reflect the wide misuse of the sedition law and are classic examples of the authorities acting  first, and applying their mind later.  

Sedition 2.0: Why This Is More Stringent

In the re-packaged version, the words “ by electronic communication or by use of financial means” have been added which makes the interpretation of the offence wider than the original one.  “...by use of financial means” is vague and hasn’t been defined to answer what would be the limitations of the proposed terms.

As Chitranshul Sinha points out there is no clarity on what the term “subversive” means either. The endeavour seems to be to add more teeth to the current sedition law minus the safeguards that judicial pronouncements have created so far. 

The concept of “encouraging feelings of separatist activities” has been introduced as well. The term “separatist activities” can be interpreted in several ways, and ultimately can be used as a political tool to curb the opposition parties or anyone who tends  to protest against any of the policies tabled by the government 

The punishment for the offence is worrying  too – the provision prescribes life imprisonment, or, imprisonment up to seven years – without prescribing anything in between, which will definitely be a subject matter for litigation before the Supreme Court of India.  

What The Government Has Done is Baffling

Back in 2022, it was Chief Justice NV Ramana, who had ordered that the 152-year-old sedition law should be effectively kept in abeyance till the Government comes up with a proposal to reconsider the provision. It is pertinent to note that after that,, no cases or proceedings were initiated under Section 124A of the Indian Penal Code.

A bench comprising the Chief Justice of India NV Ramana, Justice Surya Kant and Justice Hima Kohli held:

"We hope and expect Centre and State Governments will refrain from registering any FIR, continuing investigation, or taking coercive steps under Section 124 A IPC when it is under reconsideration. It will be appropriate not to use this provision of law till further re-examination is over." 

 Recently, the Law Commission of India had recommended that Section 124A of the Indian Penal Code (Sedition) be retained in the Code with certain changes. It had, in fact, suggested that the punishment be increased up to 7 years.

It seems, the government has taken into consideration the recommendations, but only to bring some more ambiguity by re-introducing it in a new avatar.  

‘What Cannot Be Done Directly Has Been Done Indirectly’

Although new reforms are welcome but without consultation and discussion, any bill would be like a research paper without footnotes. In an early attempt to overhaul the criminal justice system, the government has missed an opportunity to actually address the issues which needed looking into.  One can only hope that someday sedition is done away with, but for now all that comes to mind is:

There’s a constitutional doctrine that says “what cannot be done directly, cannot be done indirectly,” but in this case it is the opposite, “what cannot be done directly, has been done indirectly.”.  

 (Areeb Uddin Ahmed is a lawyer based in Delhi. He writes on legal issues and tweets at @Legallyuddin)