Law Commission Recommends Retaining Sedition Law with Amendments and Safeguards [Read Report]

NEW DELHI: Amid clamour to repeal the penal provision on sedition due to its misuse, the Law Commission of India has suggested the Union government to retain it with safeguards, while rejecting the contention that it is just a colonial legacy and employed to crush dissent. 

"The Commission is of the considered view that Section 124A (sedition) needs to be retained in the Indian Penal Code, though certain amendments may be introduced in it by incorporating the ratio decidendi of Kedar Nath Singh v. State of Bihar (1962) so as to bring about greater clarity regarding the usage of the provision," it said.

At present, the penal law carried the maximum penalty of life term.

On May 11, 2022, the Supreme Court directed all the State Governments and the Central Government to keep all pending trials, appeals and proceedings arising out of a charge framed under Section 124A to be kept in abeyance.

The Court, in its prima facie observation, held that the rigours of Section 124A of IPC were not in tune with the current social milieu, and were intended for a time when this country was under the colonial regime. The order had then come in a clutch of PIL filed by S G Vombatkere and others.

The Commission, however, looked into the issue related to the penal law upon a reference made by the Union Home Ministry on March 29, 2016.

It said that colonial legacy is not a valid ground for its repeal.

"However, going by that virtue, the entire framework of the Indian legal system is a colonial legacy. The police force and the idea of an All- India Civil Service are also temporal remnants of the British era. Merely ascribing the term 'colonial' to a law or institution does not by itself ascribe to it an idea of anachronism. The colonial origins of a law are by themselves normatively neutral. The mere fact that a particular legal provision is colonial in its origin does not ipso facto validate the case for its repeal," the Commission said.

The 22 nd Commission headed by Justice Ritu Raj Awasthi sent the detailed report to Law Minister Arjun Ram Meghwal.

The Commission, in its 279 th report, recommended that the scheme of punishment provided under the said section should be amended to ensure that it is brought in parity with the other offences under Chapter VI of IPC.

"Moreover, cognizant of the views regarding the misuse of Section 124A, the Commission recommends that model guidelines curbing the same be issued by the Central Government. In this context, it is also alternatively suggested that a provision analogous to Section 196(3) (preliminary investigation) of the Code of Criminal Procedure, 1973 (CrPC) may be incorporated as a proviso to Section 154 of CrPC, which would provide the requisite procedural safeguard before filing of a FIR with respect to an offence under Section 124A of IPC," it said.

The panel said the most advanced democracies of the world including the US, UK, etc have their own history, geography, population, diversity, laws, etc which are not comparable to Indian circumstances.

"Despite this, what some of these countries have actually done is that they have merged their sedition law with counter terror legislations," it said.

The Commission also opined that repealing the provision on the mere basis that certain countries have done so is essentially turning a blind eye to the glaring ground realities existing in India.

"Each country's legal system grapples with its own different set of realities. Repealing Section 124A of IPC on the mere basis that certain countries have done so is essentially turning a blind eye to the glaring ground realities existing in India," it said.

The panel also highlighted what Section 124A of IPC seeks to penalise is only the pernicious tendency to incite violence or cause public disorder in the guise of exercising right to freedom of speech and expression.

"Even though, in our considered opinion, it is imperative to lay down certain procedural guidelines for curbing any misuse of Section 124A of IPC by the law enforcement authorities, any allegation of misuse of this provision does not by implication warrant a call for its repeal," it said.

The Commission also emphasised the utility of the provision in combating anti-national and secessionist elements which used violent and illegal means to overthrow the elected governments.

It also referred to threats to India's internal security by Maoist extremism, militancy and ethnic Conflict in the Northeast, terrorism in Jammu & Kashmir and secessionist activities in other parts of the country.

"The continued existence of the government established by law is an essential condition for the security and stability of the State. In this context, it becomes imperative to retain Section 124 A and ensure that all such subversive activities are nipped in their incipiency," the panel said.

Among the procedural guidelines to prevent its misuse, the Commission said a police officer, not below the rank of Inspector, should conduct a preliminary inquiry within seven days for the limited purpose of ascertaining as to whether a prima facie case is made out and some cogent evidence exists and then record the reasons for the same in writing and only thereafter, permission shall be granted for the FIR.

This safeguard is being recommended by the Law Commission taking into consideration the observations made by the Supreme Court in S G Vombatkere case, it added.

[Read Report]