A Reasonable Restriction

MENTION THE WORD SEDITION AND it is likely that you will encounter extreme emo­tions. On one side are ranged defenders of civil liberties and human rights who say the ‘colo­nial’ offence has been abused in India to sup­press the rights of individuals. On the other side are authorities tasked with maintaining law and order in India’s near and far locales that are increasingly witnessing ‘designer protests’ that remain peaceful but are calculated to paralyse governments and day-to-day life.

Last year, in May, the Supreme Court agreed with the civil liber­ties perspective and halted the registration and prosecution of all cases and investigations that had been made under Section 124A of the Indian Penal Code (IPC), the part of the law that dealt with sedition. The court had asked the government to re-examine the need and necessity for Section 124A.

Now, a year later, the Law Commission of India has made a strong case for retaining Section 124A. In a comprehensively ar­gued report, issued on May 24, the commission dealt with various aspects of the law based on historical and contemporary debates. While the commission issued a report a year after the Supreme Court’s decision, it had originally been asked to examine the issue in March 2016. The subject could be examined only after the new chairman and members of the commission were appointed in November last year.

On June 12, Union Minister of Law and Justice Arjun Ram Meghwal said the commission’s report would be examined and the government would come to a decision after consulting all stakeholders. It is worth noting that Meghwal said a law should not be repealed merely because it is colonial in origin. The Su­preme Court in its decision said, “[T]he rigors of Section 124A of IPC is not in tune with the current social milieu, and was intend­ed for a time when this country was under the colonial regime.”

The commission stuck to the middle ground: It recommended retaining Section 124A but, at the same time, it added a new safe­guard to the existing law. The commission based its recommenda­tions on a number of grounds, chief being safeguarding the unity and integrity of India.

The commission’s report stated: “The ever proliferating role of social media in propagating radicalisation against India and bringing the government into hatred… all the more requires such a provision to be present in the Statute.” It went on to say that Section 124A has its utility in combating anti-national and secessionist elements as it seeks to protect the elected gov­ernment from attempts to overthrow it through violent and illegal means.

Another—ameliorating—reason given for retaining Section 124A is that it runs parallel to anti-terror laws. It has been argued that with a number of special laws, such as the Unlawful Activi­ties (Prevention) Act, 1967 (UAPA) and others, there is no need to retain sedition as an offence. The commission did not agree with this contention and said that in the absence of Section 124A, any expression that incites violence against the government would invariably be tried under special laws and counter-terrorism leg­islation which contain much more stringent provisions.

Sedition thus occupies an intermediate position between free and fair use of freedom of expression—which includes criticism of government, something that is the lifeblood of democracy—all the way to terrorism and separatist violence. (This point was made in Open earlier in ‘The Thing about Sedition’, June 14, 2021.)

The commission argued that sedition falls in the class of “reasonable restrictions” that are part of the right to freedom of expression under Article 19(2) of the Constitution. It went on to say, “Sedition does not fall foul of the freedom of speech”. Inter­estingly, the commission noted that the Constituent Assembly did not use the expression “sedition” and instead substituted it with an act “which undermines the security of, or tends to overthrow the state,” an expression that is more expansive than the definition of sedition.

Finally, the claim that sedition was a “colonial offence” was dis­missed by the commission with the simple observation that the very edifice of law—for example, the Indian Penal Code (IPC)— the administrative and police machinery are all of colonial origin.

These arguments are unlikely to move liberal opinion in India that had called for an outright removal of sedition as an offence. But the commission is an agent that balances different interests—of individuals, the government, and society—and its exercise was part of the balancing act. Instead of repealing Section 124A, the commission recommended adding another layer of safeguards. This is beyond what the Supreme Court had prescribed in a 1962 case on when a person can be charged with sedition.

The commission recommended that the “phraseology” of Section 124A should include the reasoning laid down in the 1962 case to “bring about more clarity in the interpretation, understanding and usage of the provision.” More importantly, procedural guidelines are required to prevent the misuse of the section. The commission said that a proviso should be added to Section 124A that no FIR for an offence under the section will be registered unless a preliminary inquiry is conducted by a police officer. This officer should not be below the rank of an inspector. It is on the basis of this report that Central or state governments should grant permission to register a case under Section 124A. These safeguards also take into account what the Supreme Court had observed in the case in May last year when it cried a halt to further registration of cases under Section 124A.

The net result is that the commission’s amended draft of Section 124A is modern and forward-looking and incorporates changes necessary today to curb seditious activities. The amend­ed draft, for example, has the expression “with a tendency to incite violence or cause public disorder”. The importance of this change cannot be overstated. To prevent any misunderstanding of the word “tendency”, the amended draft includes an explana­tion at its end. This reads as: “The expression ‘tendency’ means mere inclination to incite violence or cause public disorder rath­er than proof of actual violence or imminent threat to violence.”

These changes—including the safeguards recommended by the commission—are the need of the hour. The context in which they have been made has not sprung out of thin air. As the commission’s report notes, the danger of separatism became acute by the early 1960s when such tendencies emerged in Tamil Nadu and Punjab. At that time, the 16th Amendment to the Constitution was passed by Parliament in 1963 that strength­ened the reasonable restrictions under Article 19(2) to include the expression “sovereignty and integrity of India” among re­strictions to freedom of expression. That amendment served its purpose for more than 50 years.

In these 50 years, much has changed in terms of communica­tion. With the advent of social media, the pace of dissemination of information and ideas has quickened to almost an instanta­neous level. In such conditions, the 16th Amendment and its emphasis on “adequate powers become available for the pres­ervation and maintenance of the integrity, and sovereignty of the Union” may not be quite adequate today.

It is here that the Law Commission’s explanation about the “tendency” to incite violence or cause public disorder is prescient. The commission’s wording of the explanation for the word “ten­dency” as “mere inclination to incite violence or cause public dis­order rather than proof of actual violence or imminent threat to violence” fits the requirements for the present day when anarchic agitations have become frequent in India.

Ordinarily, any peaceful agitation squarely falls within the ambit of the freedoms available to citizens under Article 19. The Supreme Court has, in a number of judgments, widened the amplitude of this freedom quite extensively. These freedoms are now extraordinary in nature. Two examples illustrate the point. During the Shaheen Bagh agitation against the Citizenship (Amendment) Act, 2019, a section of the Muslim community blocked an arterial road connecting New Delhi with a suburb in Uttar Pradesh (UP). The protest began in mid-December 2019 and would have continued for a much longer period had the Covid-19 pandemic not struck. During this period, the Supreme Court went so far as to appoint two “interlocutors” to engage with the agitators. Had it not been for the pandemic, it is quite likely the agitation would have continued.

Six months later, farmers from Punjab, Haryana and parts of western UP laid siege to the national capital and blocked key highways leading to it. Their demand was the repeal of the three farm reform laws passed by Parliament in September 2020. The agitation continued till November 2021 when the Union govern­ment was forced to withdraw the three laws. In the interim, the Supreme Court “suspended” the laws, a unique judicial outcome seen for the first time in India.

In both cases, the agitators were given a wide berth by the government and the judiciary, the former for political reasons and the latter for a very expansive interpretation of freedom of expression. But there was something politically very unusual about these agitations. They were designed to force the govern­ment to submit. This is not the normal course of democratic politics. In both agitations, efforts were made to spread the agi­tation beyond the immediate site in an effort to bend the gov­ernment to the protesters’ will. These cases highlight the limits of where democratic politics ends and something else begins. What is the government supposed to do when a small section of individuals—with narrowly defined demands that are unrea­sonable—makes it and other citizens hostage to its demands?

This is increasingly the nature of agitations in India today. Then there are instances, such as Manipur, where protests turn violent and challenge the government’s authority by the force of arms. These cases, seemingly distinct, lie on a spectrum from ‘peaceful’ all the way to violent. But they have one common ele­ment: they aim to force the government to bow down by a show of strength.

Many such agitations should—and can—be handled by politi­cal means, such as dialogue and persuasion. But in other cases, the aim is to force the government to back off. The use of NGOs and civil society organisations to design such protests is well-known. National Security Advisor (NSA) Ajit Doval highlighted the is­sue in November 2021. Unless a protest turns violent, it is highly unlikely that any government in India will use force to quell it. The issue is about ‘designer protests’ that lie somewhere between peaceful and violent ends. Governments have few, if any, tools to handle these kinds of protests. The fact that these protests can spread by the use of new technologies makes them difficult to handle. The Law Commission’s careful recommendations on sedition should be seen in the light of this new trend in protest politics seen in different parts of the country.

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