Sedition law reform: How preventive criminal procedure can guide the way

The 279^th Report of the Law Commission of India (LCI) on Usage of the Law of Sedition has been made public. The report proceeds on expected lines. After examining the historical background of the law of Sedition and the inter-relationship between Sedition and free speech, it establishes a need for Sedition laws by highlighting the threats to India’s national security.

It then proceeds to recommend certain procedural and substantive amendments relating to Section 124A of the Indian Penal Code (IPC). While the intent behind the recommendations must be lauded, there is a need to engage with the same critically before it is adopted by the legislature.

Firstly, even though the report does well to incorporate the protections afforded by the Supreme Court in the Kedar Nath case within the language of the provision, the same is recommended through the insertion of the phrase “with a tendency to incite violence or cause public disorder.” ‘Tendency’ is then defined to mean a ‘mere inclination’ rather than proof of actual violence or even an imminent threat of violence. It is pertinent to note that the term ‘incitement’ in and of itself pertains to a situation where the substantive offence is yet to be committed.

The amendment as recommended by the LCI, therefore, goes beyond the ratio laid down by the Supreme Court in Kedar Nath which required ‘incitement to violence’ as distinct from a ‘tendency to cause public disorder.’ By inserting the word ‘tendency’ before ‘incitement to violence,’ the LCI inadvertently ends up defining the offence in a vague and imprecise manner where the offence would come to be attracted at a stage prior to the inchoate stage of incitement.

Secondly, neither incitement nor tendency can replace established mens rea standards. One of the chief criticisms of Section 124A was that the same lacked mens rea standards such as intention, knowledge, maliciously, wantonly, recklessly or negligently, which have been used elsewhere in the Indian Penal Code. It must be noted that the report does not tackle the question of the insertion of mens rea standards within the language of the provision even though the same had been recommended by the 42^nd Report of the LCI back in 1971.

Thirdly, it is also noteworthy that the report seems to pass to the buck on the abuse of Sedition law to the police officers who register FIRs under the provision. As on the day of its abeyance, nearly thirteen thousand individuals had been charged under Section 124A since 2010 alone. At the same time, conviction rates in Sedition cases have been low, ranging between a maximum of 33.3 per cent in 2020 to an abysmal 3.3 per cent in 2019. In light of such empirical evidence of misuse, the argument that the police officers abuse the provision without approval of the political masters and register cases independent of the prevailing political will seems incredulous. It is a great disservice to our police forces.

Fourthly, the government has time and again mentioned that it seeks to get rid of the colonial baggage that we have been carrying with us for more than seventy-five years since our independence. As a part of the package of laws which are sought to be ‘decriminalized’ under this idea, we must ensure that the archaic term ‘Sedition’ is replaced with something more apt, modern and relevant. Such a change in nomenclature would also work towards ensuring that the roots of historic injustice which are attached to the term ‘Sedition’ are also surgically incised. However, despite the colonial baggage, the LCI bats for the retention of the term Sedition.

Fifthly, as it currently stands, the punishment for Sedition is imprisonment for life or imprisonment for up to three years with or without fine. The need for the rationalization of the punishment has been raised repeatedly. Even though the LCI echoes such requirement, it merely recommends the increase of the limit of imprisonment from three years to seven years. A comprehensive attempt at rationalization of punishment, however, must guide the sentencing discretion by providing for graded punishments depending on the nature of the act sought to be punished. To illustrate, a higher punishment could be provided for situations where violence is caused. The recommendations of the LCI fall short in this regard.

Lastly, apart from such substantive changes, there is also a need to engineer a shift from an ex-post view of criminal law to an ex-ante perspective. The debate on Sedition law so far has focused on the negative consequences of keeping Section 124A on the statute book versus the retributive need for its retention. The consequentialist nature of the debate, therefore, has hardly focused on the preventive aspects of Sedition law.

The existing procedure relating to Sedition provided under Chapter VIII of the Code of Criminal Procedure provides us with some guidance as to how preventive criminal law can help us rationalize Sedition laws. The chapter empowers the executive magistrate to take note of any information that a person has disseminated or attempted to disseminate or make, produce or keep for sale any seditious material. The magistrate may then require such person to give security for ensuring that he will not indulge or engage in dissemination of Sedition material. Failure to give such security may result in detention of the individual.

The preventive procedure is replete with safeguards. Firstly, the procedure requires an inquiry as to the truth of the information before the order to give security is made. Secondly, such an inquiry has to be mandatorily completed within six months, failing which the proceedings stand terminated automatically. Thirdly, the order to give security cannot be for a period exceeding one year. Fourthly, detention under the preventive procedure can only be made when a person refuses or fails to give such security. This preventive procedure, if applied effectively, has the potential to avoid the misuse of Section 124A itself.

Such procedures must be strengthened, invigorated and utilized in order to prevent an ex-post resort to substantive criminal law by successive governments. Any attempts at Sedition law reform must account for the depth in Morton Horwitz’s observation that criminal law is about reconciliation of contradictions which cannot be reconciled. Preventive criminal procedures can help us navigate such contradictions. Reform of Sedition laws, therefore, requires us to not only look at Section 124A in a substantive sense, but also to undertake an unprecedented exercise of exploration and refurbishing of existing preventive mechanisms.

GS Bajpai is Vice-Chancellor at NLU Delhi and Ankit Kaushik is an Assistant Professor at RGNUL, Punjab.