The Law Commission of India published its Consultation Paper on Sedition on August 30. The Paper did not make any recommendations. However, they did highlight the need to revisit the law on sedition contained in section 124A of the Indian Penal Code (IPC). The Paper also highlighted the need for an informed debate on the law "so that a public friendly amendment could be brought about."
The paper began by looking into the law on sedition in three other common law countries, viz. the United Kingdom (UK), United States of America (USA) and Australia. In the UK, the sedition law was repealed in 2009 through section 73 of the Coroners and Justice Act. One of the reasons for abolishing the law of sedition was stated as:
"Having an unnecessary and overbroad common law offence of sedition, when the same matters are dealt with under other legislation, is not only confusing and unnecessary, it may have a chilling effect on freedom of speech and sends the wrong signal to other countries which maintain and actually use sedition offences as a means of limiting political debate."
In the USA, the law exists as a part of the Alien Registration Act, 1940. However, several decisions of the Supreme Court of the United States have limited its application sufficiently. At present, the doctrines of "reasonable listeners test", "present danger test" and "fighting words" are applied to determine whether a particular speech amounts to sedition or not. The reasonable listeners test determines whether the speech in question could be construed as an attempt to incite rebellion. The present danger test ascertains whether the words can have an immediate effect in inciting rebellion. The fighting words test is used to determine whether the words represent a call for violence. Hence, the prime test in restricting free speech through sedition is that the words must represent a credible call for violence and rebellion.
Australia has removed the term 'sedition' from its legal lexicon, however, it still exists in a limited sense through the phrase 'urging violence offences'. This change was first recommended by the Royal Commission on Australia's Security and Intelligence Agencies, Report on the Australian Security Intelligence Organization in 1985. This was reiterated in 2006 through the Australian Law Reform Commission's Report on Fighting Words: A Review of Sedition Laws in India. In 2010, the change was finally made in the law. What this shows is that apart from the UK, which has completely done away with the sedition law, the other two common law countries that have retained it in different avatars have done so after limiting it solely to speech that incites violence.
Sedition in India is a colonial era offence. It was first introduced under section 113 in the original 1860 IPC drafted by Macaulay. This was replaced in1870 through an amendment that introduced the familiar section 124A. According to the Law Commission's Paper, "The intent of the section was to punish an act of exciting feelings of disaffection towards the government, but this disaffection was to be distinguished from disapprobation. Thus, people were free to voice their feelings against the government as long as they projected a will to obey its lawful authority."
The subsequent amendments to this provision saw the punishments for sedition change, as well as including 'bringing or attempting to bring in hatred or contempt towards the government' as a part of the offence. What is striking in this is that the word 'government' is used rather than 'State'. In a democracy, governments change but the State remains. Hence, contempt or hatred for a government does not necessarily mean contempt or hatred for a State.
The current section 124A in the IPC states:
"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, 102 [***] the Government established by law in 103 [India], [***] shall be punished with 104 [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.
Explanation 1.-The expression "disaffection" includes disloyalty and all feelings of enmity.
Explanation 2.-Comments expressing disapprobation of the measures of the Government with a view to obtain their alteration by lawful means, without exciting or attempting to excite hatred, contempt or disaffection, do not constitute an offence under this section.
Explanation 3.-Comments expressing disapprobation of the administrative or other action of the Government without exciting or attempting to excite hatred, contempt or disaffection, do not constitute an offence under this section."
From a bare perusal of the contents of this section, it appears that the entire object is to restrict criticism of the government. However, case law has limited the application of this section solely to speech that incites violence against the State. However, unless the Court's views on the offence of sedition is written into the statute book, the provision in all probability is still going to be prone to misuse by the executive.
Commenting on the relationship between free speech and sedition, the Law Commission's Paper states:
"In a democracy, singing from the same songbook is not a benchmark of patriotism. People should be at liberty to show their affection towards their country in their own way. For doing the same, one might indulge in constructive criticism or debates, pointing out the loopholes in the policy of the Government. Expressions used in such thoughts might be harsh and unpleasant to some, but that does not render the actions to be branded seditious. Section 124A should be invoked only in cases where the intention behind any act is to disrupt public order or to overthrow the Government with violence and illegal means."
Continuing in the same vein, the Commission also stated:
"While it is essential to protect national integrity, it should not be misused as a tool to curb free speech. Dissent and criticism are essential ingredients of a robust public debate on policy issues as part of vibrant democracy. Therefore, every restriction on free speech and expression must be carefully scrutinised to avoid unwarranted restrictions."