Sedition is a perennial weapon in the armoury of the governments against those who dissent.
Sedition, an offence wrought 150 years ago, to quell each voice of dissent, endured long in the independent India – until it did no more. Now, as it stands reformed, it must be sought, whether it is a herald justice or suppression veiled anew?
Overview of Sedition under 124A of Indian Penal Code 1857
Sedition, under Section 124A of the Indian Penal Code (now repealed) penalised any act committed by words, signs or visible representation which attempted to bring hatred or excite disaffection towards the government established by law in India. This act, if proven in a court of law, was punishable with either life imprisonment, or imprisonment extending up to 3 years, with a fine also possible. Moreover, the offence constituted under IPC was a non-bailable and cognisable offence.
Since the enactment of the offence of Sedition, the provision has been challenged again and again in court of law. The first lawsuit to challenge the legitimacy of Section 124 was Ram Nandan v. State of Uttar Pradesh, wherein the Allahabad High Court declared this provision unconstitutional. This decision was overturned by the Supreme Court in Kedar Nath v State of Bihar (1962), wherein Sedition was declared constitutional. However, the court held that its scope should be limited to acts involving intention to create public disorder and violence, since a wider interpretation of Sedition would not sustain the test of constitutionality.
Taking into consideration the immense misuse of the Sedition law to harass, intimidate and persecute human right defenders, journalists, writers, and so on, the Supreme Court in the recent case of Vinod Dua v. Union of India held Sedition in abeyance and suspended the use of Sedition by Indian authorities.
Comparative Analysis of Old and New Legislation
The offence of Sedition under Section 124A has been removed and replaced by Section 152 of BNS which provides a new robe to the offence with a wider fabric of what will constitute “Acts Endangering sovereignty, unity and integrity of India”. While introducing the bill, Home minister Amit Shah stated in the Lok Sabha that the new law will not punish any individual who criticises the government. However, a deeper analysis of both the laws tells that Section 152 is just a new body with the same soul.
The offence under Section 152 has now been categorised as “Deshdroh” instead of “Rajdroh” and a notable change made is the augmentation of punishment to life imprisonment or imprisonment extending up to 7 years, excluding the provision of fine. Earlier, the punishment was life imprisonment with a fine, or imprisonment for up to 3 years with a fine, or just a fine. This is antithetical to what the home minister claimed while proposing the bill. An attempt to remove the ambiguity from the words like ‘hatred’, ‘contempt’ and ‘disaffection’ has been rendered futile by the addition of more vague terms like “endangering sovereignty or unity and integrity of India”. This has given a wider scope of abuse of power to the government as all these words are open to massive interpretations. A broader overview of the two laws makes it clear that nothing has been made evident or progressive if not vaguer and more regressive, and the same essence has been held onto in the new section.
Examining the Potential for Abuse Under the Replaced Provision
The major qualm concerning the provision of Sedition has majorly revolved around its interpretation and application, either as an offence against the governing body (Rajdroh), that is the British Monarch during the section’s inception and later, the governing parties of democratic India, or as a crime against one’s country and its people (Deshdroh). The government has tried to eradicate this issue through the Bharatiya Nyaya Sanhita, 2024 by introducing a new nomenclature and substituting it with Section 152, which seeks to punish only those acts which endangers the sovereignty, unity and integrity of India. Thus, it has been advocated that the offence of Rajdroh has been replaced by the offence of Deshdroh. Though the introduction of the substituted provision has been welcomed owing to the draconian implications of precursory section, some researchers speculate that it is the same as the erstwhile package, but in a reinvigorated cover with a wider ambit for exploitation.
Firstly, the provision, through the words “purposely or knowingly” gives primacy to the aspect of intention or mens rea, which is known as the basic ingredient of any crime – actus non facit reum nisi mens sit rea (there is no crime without a guilty mind). Though, this aspect of mens rea was not worded in the precursory provision, any act seen to be inciting disaffection against the government could not be slapped with the offence of sedition. The Supreme Court, through its 1962 verdict in the case of Kedar Nath Singh v State of Bihar, had interpreted the provision and introduced the feature of ‘intention’. That, a person must intentionally incite or attempt to incite disaffection towards the government to constitute an offence.
Mens Rea is an abstract concept, representing the manifestation of the accused’s mind, and since it is so innate a concept, it is difficult to establish in the court of law. Therefore, mens rea is often presumed by the courts through the acts of the accused. Besides, throughout various cases, the requirement of mens rea is construed to be silently intrinsic and inherent in every offence, unless a contrary requirement of intention is stated or implied. Henceforth, the addition does not do much towards enhancing the implementation of the statute, since it was always a requirement after the judgement of Kedar Nath (1962).
Moreover, the purview of the offence has been augmented by incorporating the words “by electronic communication” and “by use of financial means”. Further, the provision includes “indulges in or commits any such act”, leaving up to the discretion of the law enforcements to decide what activities can be brought under the scope of this offence. The ambiguity of “acts” which can be entailed as endangering sovereignty leaves a huge scope for exploitation by the legislative entities; and entrusts a huge responsibility on them to appropriately lay down which act would comprise under the delphic purview of the provision. This certainly raises wariness and suspicion regarding its practical application, wherein it is left to the government to decide which acts does or does not attempt to excite secession and subversive activities.
The 22nd Law Commission, headed by former Karnataka High Court Justice Ritu Raj Awasthi in its 279th Report has recommended retention of the provision of Sedition, and that it should be amended as per the 1962 verdict of Supreme Court to bring clarity in interpretation, usage, and understanding of the provision. Though, the act has been repacked in a new package, it has been made all the way more ambiguous, especially considering its wider scope which does not restrict itself to curbing disaffection towards government, but extends to punish any act which is seen as endangering sovereignty, unity and integrity of India, gives more ground to the governing authorities for exploitation and suppression.
The recent case of Tejender Pal Singh v. State of Rajasthan (2024) raises significant concerns regarding potential misuse in the application of the new provision. Tejender Pal was charged under Section 152 for posting a video on Facebook expressing sympathy for a pro-Khalistani leader Amritpal Singh. In this case, the court observed that Section 152 has its roots in Section 124A of IPC and stated that it requires vigilant application so that it remains in harmony with the right of freedom of speech and expression. Though, the FIR against Tejender Pal was quashed by Rajasthan High Court, the court hinted that the specter of draconian law of Sedition still looms large.
Conclusion
The new Section 152 which has been introduced as a step forward to read perspicuity in the former provision of Sedition lacks the rational nexus as the ambit for abuse has apparently widened following its introduction. The judicial interpretations which have been done to blow clarity into the former provisions have been nullified by its repeal and the new law demands fresh interpretations which can take a while. In order to reinvent the whole cycle, many cases have to make it to the courts and then await a decision. In the meantime, the provisions of the new law are open for the authorities to use in their favour and endanger the rights of its citizens. As has been said by Jonathan Swift, “”Laws are like cobwebs, which may catch small flies, but let wasps and hornets break through.” This new provision has been poorly crafted to leave loopholes in its application and dissuade dissent in a democratic country which can erode public confidence in the justice system of the country. Therefore, in the absence of any lucid clarification, the wider ambit of this provision will only give way to colonial suppression in the Bharatiya form.
