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REPEALING OF THE SEDITION LAW – DECODED

SURANA & SURANA > SSIA  > REPEALING OF THE SEDITION LAW – DECODED

REPEALING OF THE SEDITION LAW – DECODED

Repealing of the Sedition Law – Decoded

Ranjith Kumar – Associate, Dispute Resolution Practice

In a rather brave attempt to reorganize and decolonise the criminal justice system of India, Union Home Minister Amit Shah had proposed the introduction of the three new criminal bills, that would go on to replace the existing criminal majors in India, during the monsoon session of the Parliament. In this proposal, he listed out the new bills that would supposedly reinvent India’s justice system and they are; the Bharatiya Nyaya Sanhita (replacing the Indian Penal Code, 1860), the Bharatiya Nagarik Suraksha Sanhita (replacing the Code of Criminal Procedure, 1973), and the Bharatiya Sakshya Bill (replacing the Indian Evidence Act, 1872). These bills have been met with mixed opinions, and the scales tilt towards the legality of the nomenclature of these bills, which are in Hindi as opposed to English. Reference has been sought to Art. 348 of the Constitution, which provides that the names and the bills introduced in the Parliament must be in English. In a recent move, the Madras Bar Association had also expressed its objection to the naming of the bills in Hindi. While this comes off as a rather scathing move on the advocates and judges in the southern side, it remains to be seen as to how these oppositions would pan out.

Though these bills have embodied various new inclusions, the apparent repealing of the sedition law has taken up the centre stage in all debates. This article will analyse the repealing of the afore-mentioned law, its underlying nuances and its replacement in the Bharatiya Nyaya Sanhita.

Sedition law under the Indian Penal code

In the IPC, sedition was criminalised under Sec. 124A, which reads as follows;

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”

In simple words, any display of disloyalty of feelings of enmity, hatred, and contempt against the government, through any of the above-mentioned means would constitute an offence of Sedition. However, expressing disapproval of the measures taken up by the government in a peaceful and lawful manner, without an attempt to incite violence or hatred would not be covered under the ambit of this offence.

Now, it is important to note that the provision contains the phrase “Government established by law in India” and not “Country”. So, any harsh and negative remarks raised against the functioning of the ruling government will be considered as an act of sedition and such remarks need not necessarily indicate the country. It is this phrasing that served as a loophole for various governments in the past to prosecute individuals under this law, for expressing their honest opinions in a way that was perhaps not acceptable to the government.

For several years now, arguments in favour of scrapping this law have been building up for the simple reason that the legislative intent behind this provision was to favour the actions of the Colonial Government to shut down the Indian independence movement. And given the fact that the present government of the United Kingdom has repealed this archaic law themselves, there exists no more reason for its former colony to abide by it.

Furthermore, the scrapping-off this law received more impetus after the publication of the consultation paper by the Law Commission of India in August 2018, where it had suggested that Sec.124A must only be invoked when there is a prima facie act that is coupled with an intention to overthrow the government with illicit means, while disrupting public peace. The paper also considered the scenarios where the expression of thoughts might be considered harsh to some, but that cannot serve as enough ground to give a seditious colour to those actions. 

The new act however, proposes to repeal the sedition law and has purported to substitute it with a provision that will penalise any action that would endanger the sovereignty of India under Sec.150 of the Bharatiya Nyaya Sanhita.

 Section 150 of the Bharatiya Nyaya Sanhita – an overview

It has been proposed that this provision would weed out the existing sedition law under the IPC, thus repealing it. The provision has been extracted herein for ready reference

Acts endangering sovereignty unity and integrity of India;

“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.

Explanation. –– Comments expressing disapprobation of the measures, or administrative or other action of the Government with a view to obtain their alteration by lawful means without exciting or attempting to excite the activities referred to in this section”.

It is quite interesting to note that this provision contains references to “secession”, “armed rebellion” and “subversive activities”, along with encouraging feelings of “separatist activities”. From a bare reading and interpretation of this provision, it is evident that any act that would incite a feeling of divisiveness among the citizens of the country, which would in-turn endanger the sovereignty, unity and integrity of India would be severely punishable.

Now, it is pertinent to understand the meaning of the terms mentioned in this section. Secession essentially refers to a situation where a state or states secede or withdraw from the Republic of India. Armed rebellion is a term that was inserted in the Constitution through the 44th Amendment, which is considered to be a ground for declaring national emergency, internally. The term “subversive activities” finds reference in the 43rd report on Offences Against National Security, where it lists various activities that would constitute “subversive activities”. According to the report, it consists of activities that are classified as “unlawful” under the Unlawful Activities (Prevention) Act and an additional list of activities that are not covered under this act. Further, this section also aims to punish any excitement or attempts of excitement of separatist activities.

Interpretation of Sec.150 of the Bharatiya Nyaya Sanhita

While this provision puts the unity, sovereignty and integrity of India on a high pedestal, there still exists a conundrum with regards to the notion of  “repealing of the sedition law”. In an ordinary sense, repealing would mean that the concept enshrined under the said provision of law would cease to be an offence or would cease to have the effect it previously had and would be rendered invalid. Such was the effect when a petition to repeal adultery under Sec.497 of the IPC was filed before the Supreme Court in the case of Joseph Shine vs. Union of India. Consequently, the said section was struck down, decriminalising the act of adultery. It must be noted that the entire essence of this section was invalidated and it was ensured that such a similar provision did not exist elsewhere, within the statutes.

However, on a plain comparison of the sedition law under Sec. 124 of the IPC and Acts endangering sovereignty unity and integrity of India under Sec. 150 of the BNS, it gives the impression that the latter is merely a refined form of the former. This is primarily due to the lacunae present in interpreting the terms present in the provision. There seems to be heavy concern on the usage of the term “subversive activities”, as it does not have a well-rounded definition. It also raises legitimate concerns as to whether even a protest will fall under the ambit of this term.

The challenge also lies in proving the nexus between the act committed by an individual and the resultant consequence, while evaluating the contribution of a person’s act in exciting secession, separatism, or armed rebellion. There are no quantifications or threshold activities, wherein its commission would constitute the above-mentioned offences. Here, the Law commissions consultation paper of 2018, deserves a reiteration as it rightly mentioned that “Every irresponsible exercise of right to free speech and expression cannot be termed seditious. For merely expressing a thought that is not in consonance with the policy of the Government of the day, a person should not be charged under the section”. Parallels must be drawn between this opinion and the current replacement to the sedition law. It is a rather honest question of what act will constitute an offence under this provision and what will be taken as an “irresponsible exercise”.

A shadow of doubt looms over the word “integrity” of India. Such vague terminologies would hurt the implementation of the law to the fullest extent. Given that the punishment for these acts under Sec. 150 of the BNS has been increased to either a life imprisonment or for a period of seven years, it needs to be carefully evaluated as to what actions would serve as an endangerment to the unity, sovereignty and integrity of the Country.

Conclusion

The upheaval of the criminal laws in India has contributed to widespread debates and discussions with respect to its interpretation and implementation. It would indeed be true task for advocates, judges and police officials to incorporate these laws into their day-to-day functioning. It is true that the sedition law that existed earlier was draconian and it deserved to be scrapped. However, it remains to be seen if its replacement serves the purpose of its insertion in its truest sense, without any gross misuse.

References

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