Law Commission's Report on Sedition Ignores Free Speech, Lacks Depth

The 22nd Law Commission, in its 279th report relating to the usage of sedition law, suggests that two major sets of changes be made to the Indian Penal Code, 1860 (IPC) and Code of Criminal Procedure, 1973 (CrPC). 

First, it proposes that what constitutes the offence of sedition be widened and changes what kind of sentences can be imposed

Second, it proposes that a procedural safeguard be introduced through the issuance of “guidelines” by the Union Government or the CrPC be amended to require a preliminary enquiry and permission of the State or Union Government before a First Information Report (FIR) is filed alleging sedition

The recommendations are baffling and contradictory. In this article, I will try to explain why. 

Misreads Sedition Jurisprudence

The 279th report proposes that the scope of sedition be expanded to include even speech which does not incite any violence or public disorder but which may have a “tendency” to do so. 

The proposed draft is vague and confusing but the new suggested 'Explanation 4' makes it clear that mere words are enough for an accused to be convicted of sedition, even if no violence follows the words. 

In doing so, the Commission completely misreads the Constitution Bench judgement of Kedar Nath Singh v State of Bihar and outrightly ignores subsequent jurisprudence which has interpreted Section 124-A. 

The proposed change to punishments for sedition convicts is just as misguided and bizarre. 

The 279th report refers to the 42nd report of the Law Commission which had noted that the range of punishments for sedition under Section 124-A stretched from a simple fine to life imprisonment, and suggested a more straightforward formula - that it should be punishable with up to seven years imprisonment and a fine. 

The 42nd report also suggested a narrowing of the scope of sedition law to apply only to such speech intending to cause public disorder or harm the security and integrity of India. 

The 279th report misunderstands these suggestions and instead suggests that sedition may be punishable with life imprisonment, or imprisonment up to seven years or a fine with no guidance to a judge as to when to impose what. 

Widens the Scope of Offence

The proposed punishments under Section 124-A remain as confusing as pointed out by the 42nd report of the Law Commission with the range remaining as wide. 

Instead of narrowing the scope of the offence, the 279th report widens it.

So, what does the 279th report of the Law Commission effectively recommend? A wider and vague definition of sedition where the citizen who criticises the government is even more at the mercy of the police, but all the same, punishable with life in prison.

Such an overbroad provision would undoubtedly fall afoul of constitutional guarantees of free speech as laid out in Shreya Singhal’s case.

Reflects Poor understanding of Criminal Procedure

The report acknowledges the possibility of misuse of S 124A by police acting on behalf of the political executive. 

The Law Commission however shows no understanding of the concept of “chilling effect” on free speech or even what makes a law “colonial”, but nonetheless proposes that misuse can be prevented by the issuance of “model guidelines” by the Union Government or by amending the CrPC to add procedural steps to the filing of an FIR. 

The suggestion as to model guidelines goes no further, but the amendment proposed seems, at first, promising. 

The Law Commission recommends that S. 154 of the CrPC be amended to require that in sedition cases, the FIR be filed only after an inspector rank officer conducts a preliminary inquiry and takes the permission of the State or the Central Government. 

This looks like a reasonable suggestion but a couple of problems crop up on deeper examination - 

• One, there is already a procedural protection in the CrPC in the context of sedition that has not worked as expected; and 

• Two, it takes no account of the very reason behind the misuse of sedition laws

While referring to Section 196(3) of the CrPC as inspiration for the proposed amendment to Section 154, the Law Commission does not seem to notice that Section 196(3) already applies to the offence of sedition. 

Section 196(3) states that for certain offences (such as offences against the State) the Union or State Governments may require a preliminary enquiry to be conducted by an inspector rank officer before giving sanction to prosecute a person for such offences. 

Absent such sanction, a court is not supposed to frame sedition charges against an accused. 

Nowhere does the report address why this procedural protection has proved inadequate for someone accused of sedition.

The Heart of The Problem is...

If the Law Commission’s recommendation is to be accepted, prosecuting sedition, uniquely, will require a preliminary enquiry and permission of Union and State Government before registration of FIR, investigation after FIR is registered, then submission of chargesheet, then another preliminary enquiry and then sanction of the Union and State Government, and then framing of charges by the court.

Quite what this convoluted procedure will achieve is not clear. 

In fact it is undermined by the Law Commission’s own observation that police officers seem all too willing to do the bidding of the political executive, no matter what the law actually states. 

If the requirement of getting Union or State Government sanction before prosecution for sedition did little to prevent abuse, what chance does this additional procedure proposed by the Law Commission have of succeeding? 

The heart of the problem with the 279th Report of the Law Commission is its twisted view that what keeps India’s constitutional government alive is not independent institutions, free and fair elections, active citizenry, or even neutral armed forces - it’s one loosely drafted section of the IPC that criminalises speech considered unacceptable by the government. 

It’s a report that lacks any real depth or nuance in matters of criminal law and procedure and treats a serious issue as an academic exercise in word jugglery. 

(Alok Prasanna Kumar is a Senior Resident Fellow at the Vidhi Centre for Legal Policy in Bengaluru. He is also a member of the Executive Committee of the Campaign for Judicial Accountability and Reforms. This is an opinion piece, and the views expressed are the author’s own. The Quint neither endorses nor is responsible for them.)