Law Commission Recommends Keeping Sedition Law, But What Are Experts Saying?

Here's all you need to know about the commission, its proposed amendments to the law and what experts are saying.

The 22nd Law Commission of India, in a report, has recommended that India's sedition law (under IPC Section 124A) should be retained but with "certain amendments."

• Recap: The Supreme Court had in May last year ordered that the colonial-era sedition law be kept on hold till the centre reconsiders the provision

• In an interim ruling, the top court had urged the Union and state governments to not register FIRs under the sedition law while it was being reconsidered

• The top court had mentioned that these directions will continue until further orders

• Earlier this month, a bench of Justices CJI DY Chandrachud and JB Pardiwala had assembled to hear the petitions challenging the constitutional validity of the sedition law

• But the government had told the court that it was at an "advanced stage" of re-examining the provision

• The apex court then decided to list the case for August

Here's everything you need to know about the commission, its proposed amendments to the law and what legal experts are saying:

Who Worked On The Report?

• Former Karnataka High Court Chief Justice Ritu Raj Awasthi: who is the chairperson of the commission, headed the bench which upheld the Hijab ban in Karnataka

• Former Kerala High Court judge Justice KT Sankaran: who had in 2009 directed the Union government and Kerala government to investigate alleged instances of “love jihad”

• Professors Anand Paliwal and DP Verma

The government had in February this year extended the three-year-term of this (22nd) commission till 2024.

Why The Commission Wants Sedition To Stay

The law commission, in its report, has explained why it thinks sedition should be retained. The reasons in brief are:

• To Safeguard the Unily and Integrity of India

• Sedition is a Reasonable Restriction To The Fundamental Right To Free Speech

• Existence of Counter-Terror Legislations (like UAPA) does nol Obviate lhe Need for

• Sedition being a Colonial Legacy is not a Valid Ground for its Repeal

• Repealing the sedition law on the mere basis that certain countries have done so is turning a blind eye to the glaring ground realities existing in India

What Does The Commission Want To Change in The Law?

Here's the current "definition" of sedition under the law:

1) Inserting "tendency": The law commission has recommended inserting "with a tendency to incite violence or cause public disorder" right before the sentence which says "shall be punished..."

If the amendement goes through, here's what the definition will look like: (on the right)

2) The Punishment:

Currently, the provision for punishment reads:

"..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."

And the commission recommends:

“...shall be punished with imprisonment for life to which fine may be added, or with imprisonment of either description for a term which may extend to seven years, to which fine may be added, or with fine.”

3) Procedural Guidelines for Preventing any Alleged Misuse of the law:

To prevent misuse of the sedtition law, the report recommends that no FIR is to be registered unless:

1.  a police officer, not below the rank of Inspector, conducts a preliminary inquiry and

2. on the basis of the report made by the said police fficer the Central Government or the State Government, as the case may be, grants permission for registering a FIR

4. Incorporation of Ratio of Kedar Nath Judgment in Section l24A of IPC:

The report says:

" The test laid down by the Supreme Court in Kedar Nath Singh is a settled proposition of law. Unless the words used or the actions in question do not tend to incite violence or cause public disorder or cause disturbance to public peace, the act would not fall within the ambit of Section l24A of IPC."

It adds:

"However, in the absence of any such express indication, a plain reading of Section 124A may seem to be vague and confusing, resulting in its misinterpretation and misapplication by the concemed authorities. Consequently, we recommend that the ratio of Kedar Nath Singh may be incorporated in the phraseology of Section 124,so as to bring about more clarity in the interpretation, understanding and usage of the provision."

What Are Legal Experts Saying?

The recommendation, according to Advocate Deepak Joshi, "perpetuates the very unconstitutionality that the provision (on sedition) is originally afflicted with - broad & vague terms + outdated and outlawed tendency test."

In a thread of tweets, Joshi pointed out that while the committee recommends bringing back the "tendency test," the Supreme Court has "distanced itself from a wide tendency test in free speech cases."

So, by recommending this, the law commission "turns the clock back on civil liberties and panders to a convenient narrative."

"LCI (Law Commission of India) offers no review of these SC rulings & no defense to revert to the tendency test, except for referring to the original sin - Kedar Nath judgment. Further, more vague terms introduced - tendency, inclination, public disorder - to be exploited & misused," Joshi added.

Finished reading the Law Commission of India's report on Sedition. It gets worse on many levels - intellectual exercise, jurisprudential basis, legal analysis, bordering propaganda. A few of my thoughts on this, for a meaningful engagement on the issue >>

— Deepak Joshi (@ideepakjoshi) June 2, 2023

Meanwhile, digital rights advocate Apar Gupta pointed out on Twitter that "Given by the poor quality/reasoning of the proposed amendments it's objective does not appear to be legislative reform but gridlocking/delaying judicial determination."

The Law Commission of India's report on sedition is largely a defence of the ratio in the Kedar Nath case. Given by the poor quality/reasoning of the proposed amendments it's objective does not appear to be legislative reform but gridlocking/delaying judicial determination. 1/3

— Apar (@apar1984) June 2, 2023