During its colonial rule in India, the British Empire adeptly wielded criminal law as a potent weapon. This was not just about maintaining law and order; it was an orchestrated effort to dominate and suppress individual and collective movements. The goal was clear: to maintain their stronghold and curtail any form of rebellion or dissent that could challenge the Empire’s authority. After gaining independence, while India moved towards establishing a democratic framework, remnants of the colonial legal system persisted. The criminal law, along with its associated procedures and penal institutions, did not completely shed its role as an instrument of control. Instead, they were adapted and integrated into the newly independent nation’s justice system in many instances, sometimes being used for subjugation.
This tension between individual rights and the broader security of society is not unique to India. Democracies around the world grapple with finding the right balance between upholding citizens’ rights and ensuring the collective’s safety and stability. However, in the Indian context, this challenge takes on added dimensions. Given the nation’s diverse demographics, each with its unique historical, cultural, and socio-political context, balancing becomes even more intricate. India’s journey has been about navigating this delicate equilibrium, upholding democratic values while ensuring stability amidst diversity.
On August 11th, 2023, the government of India introduced three significant bills to reform the IPC (1857), CrPC (1858), and the Indian Evidence Act (1872). The Bharatiya Nagarik Suraksha Sanhita is poised to succeed the Code of Criminal Procedure, while the Bharatiya Sakshya and Bharatiya Nyaya Sanhita are slated to replace the Indian Evidence Act and the Indian Penal Code, respectively.
The focus of this article, amidst the broader scope of the proposed reforms, is on the pivotal changes to the sedition law, specifically Section 124A of the IPC. The conversations and debates surrounding the sedition law have gained momentum, pointing towards an immediate need for its revision. Reflecting on the law’s outdated origins from the colonial era, the Supreme Court suspended its usage in a provisional move in May 2022. An analysis by Article-14 reveals that there has been a 28% increase in sedition cases since 2014, amounting to over 500 cases involving more than 7,000 individuals. Of these, 149 faced legal repercussions for remarks perceived as critical of PM Modi.
Historically, in 1962, the Supreme Court confirmed the sedition law’s constitutionality, restricting its scope only to actions inciting “disruption of public order or violence.” Despite this clarifying stance, enforcement in the subsequent decades has deviated from this guideline, leading to multiple arrests of those voicing peaceful dissent against the government.
Section 124 A of the Indian Penal Code:
“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.”
Section 150 Bharatiya Nyaya Sanhita proposes to replace Section 124A of IPC.
“Whoever, purposely or knowingly, by words, either spoken or written, or by signs, or by visible representation, or by electronic communication or by use of financial mean, or otherwise, excites or attempts to excite, secession or armed rebellion or subversive activities, or encourages feelings of separatist activities or endangers sovereignty or unity and integrity of India; or indulges in or commits any such act shall be punished with imprisonment for life or with imprisonment which may extend to seven years and shall also be liable to fine.”
The proposed section focuses on acts that promote secession, armed rebellion, subversive activities, or endanger India’s sovereignty, unity, and integrity. It is broader in scope, capturing a more comprehensive array of activities beyond just “disaffection.” Specifies that the acts should be done “purposely or knowingly,” indicating a clear and deliberate intent. In addition to the means above, it includes “electronic communication” and the “use of financial means,” making it more comprehensive in today’s digital and financial world. Although this is a welcome development, it does not guarantee that even the new proposed law will not be misused to suppress dissent and infringe on freedom of speech and expression.
Section 124A is a relic from when the British Empire sought to stifle Indian voices of dissent against their rule. It specifically targets those who induce feelings of “hatred”, “contempt”, or “disaffection” towards the Government established by law in India. The term “disaffection” essentially translates to disloyalty or feelings of enmity. Therefore, anyone attempting to undermine or challenge the legitimacy or actions of the government could be penalised under this section. Due to its somewhat vague terminology, this section has been controversial, especially concerning its implications on the freedom of speech and the right to dissent. While it aims to maintain public order, critics argue it might suppress legitimate criticism and democratic challenges.
The proposed Section 150 is a marked departure from the somewhat narrow focus of Section 124A. Instead of merely addressing sentiments against the government, it encompasses actions that could have tangible, destructive consequences for the nation. It explicitly outlines acts that could lead to “secession” (breaking away parts of the country), “armed rebellion” (violently challenging the state), and other “subversive activities” that endanger India’s “sovereignty, unity, and integrity.” By highlighting “secession” and “armed rebellion,” this proposed law delves into preventing not just disagreements with the government but actions that could lead to the physical and administrative breakup of the country. The term “subversive activities” is particularly notable. While it needs more precise definitions to avoid misuse, it implies actions that covertly aim to overthrow or disrupt the societal order. The broader scope means a more comprehensive range of activities can be scrutinised, which, while ensuring national security, also requires vigilant oversight to protect individual rights.
The phrasing “purposely or knowingly” emphasises the importance of intent behind an action. By differentiating between deliberate and inadvertent acts, this provision shields individuals who exercise their right to freedom of expression. Specifically, those who voice their disagreements or criticisms without deliberately intending to provoke unrest or harm the nation’s stability might find protection. It ensures that only those who consciously aim to disrupt or harm are penalised, allowing genuine dissent and expression without fear of potential legal repercussions.
The Indian Constitution guarantees freedom of speech and expression under Article 19(1)(a). However, this right is not absolute and is subject to reasonable restrictions under Article 19(2), which includes matters of sovereignty and integrity of India. The proposed Section 150 should be interpreted and enforced in light of these constitutional provisions. However, the actual test of any law is not in its intent but in its application. The challenge is ensuring that while Section 150 combats genuine threats to the nation, it does not stifle legitimate dissent or criticism.
A potential danger is the misuse of Section 150 to curtail legitimate dissent by framing it as endangering “sovereignty” or promoting “subversive activities.” The broad terminology needs to be clearly defined to avoid overreach. The Indian judiciary will be pivotal in interpreting and applying Section 150. Court decisions will set precedents on how this law interacts with fundamental rights, ensuring that the law’s enforcement aligns with constitutional values. If they interpret it narrowly, only severe and explicit acts against the state would be penalised, potentially leaving room for dissent and free expression. However, a broad interpretation could curtail such freedoms. Any curb on the freedom of speech should be minimal and only to the extent necessary. The challenge for India’s democratic institutions will be to ensure that Section 150 upholds security without eroding the democratic ethos. Like any legal provision, there is potential for misuse. Authorities could employ it to clamp down on legitimate dissent by framing it as “endangering sovereignty” or promoting “subversive activities.”
The current sedition law, Section 124A, has been criticised for its potential misuse against dissenters and critics of the government. The proposed Section 150, while broader in terms of the activities it covers, does not inherently guarantee protection against misuse in cases of dissent. The real-world implications will depend on its interpretation, enforcement, and the political and social environment it operates in. A clear and narrow interpretation by the judiciary and safeguards against misuse would be necessary to protect fundamental rights.
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