Central Idea

• French author Andre Gide’s statement, “Everything has been said before, but since nobody listens, we have to keep going back and beginning all over again,” aptly reflects the current state of the sedition debate in India. The 279th Law Commission Report, which upholds the sedition law, symbolizes the lack of attention paid to public opinion.

Historical Perspective of Sedition law

• Section 124A of the IPC was introduced during the British Raj in 1870 to suppress dissent and protest against the colonial government.
• The then British government in India feared that religious preachers on the Indian subcontinent would wage a war against the government.
  Particularly after the successful suppression of the Wahabi/Waliullah Movement by the British, the need was felt for such law.
• Throughout the Raj, this section was used to suppress activists in favor of national independence, including Tilak and Mahatma Gandhi, both of whom were found guilty and imprisoned

What is the ‘Tendency’ Jurisprudence?

• The tendency jurisprudence refers to the legal concept or approach that considers the potential or inclination of an act to incite violence or disturb public order, rather than requiring evidence of actual violence or an imminent threat of violence.
• In the context of sedition laws, it implies that expressions or actions that have a tendency to incite violence or promote hatred, contempt, or disaffection against the government can be penalized, regardless of whether they directly lead to public disorder.

Key points related to the ‘Tendency’ Jurisprudence

• Ambiguity: The ‘tendency’ standard is often criticized for its ambiguity and lack of clarity. It allows for the inclusion of acts or expressions that may not have a direct causal connection with public disorder, making it difficult for judicial and executive bodies to interpret and apply consistently.
• Loose Formulation: The ‘tendency’ standard is a loose formulation that can encompass a wide range of acts or expressions. It opens the possibility of penalizing speech or actions that may not pose an immediate threat but are perceived to have the potential to incite violence or disrupt public order in the future.
• Judicial Challenges: The ‘tendency’ jurisprudence has been subject to legal challenges in various jurisdictions. Critics argue that it can be misused to suppress dissent, curtail freedom of expression, and stifle legitimate criticism of the government, as it broadens the scope of what can be considered seditious.
• Pending Petitions: In the Indian context, there are currently nine petitions pending before the Supreme Court challenging the constitutionality of Section 124A (the sedition law). These petitions raise concerns about the ambiguity and potential misuse of the ‘tendency’ standard, highlighting the need for a clearer and more precise definition of sedition.
• Relevance to Sedition Laws: The ‘tendency’ jurisprudence is significant in the context of sedition laws because it determines whether an act or expression falls within the purview of sedition. By assessing the inclination or potential of an act to incite violence or disrupt public order, authorities can decide whether to initiate sedition charges against individuals.
• Need for Clarity: Critics argue that the ‘tendency’ standard lacks objective criteria and can be subject to interpretation and abuse. There is a demand for a more precise and narrowly defined standard that clearly distinguishes between protected speech and seditious activities to safeguard freedom of expression and prevent misuse of the law.

Concerns over the Power of the police in the enforcement of sedition laws

• Investigation and Enquiry: The Law Commission’s recommendation that a police officer, holding the rank of an Inspector or higher, should conduct a “preliminary enquiry” before registering a First Information Report (FIR) in sedition cases. This suggests that the police are granted the power to determine whether an act or expression has the tendency to incite violence, even without proof of actual violence or imminent threat.
• Ambiguous Standards: The proposed amendment to include the “tendency to incite violence” in sedition laws further adds ambiguity to the assessment of seditious acts. This gives police officers discretionary power to judge whether an act has an inclination towards violence, creating potential room for misuse or subjective interpretations.
• Wide Net and Misuse: The are concerns that the proposed amendment and the broad discretion given to police officers could result in a wide net being cast, potentially encompassing acts that have no real connection to public disorder.
• Political Influence: The police officers, especially when influenced by those with political clout at the local, state, or national level, may exercise their power selectively and target individuals or groups critical of the government. This can lead to a suppression of dissent and the abuse of police power for political purposes.

Disregard for Ground Realities

• Invalidation of Sedition Laws: The Law Commission overlooks developments in other countries where sedition laws have been invalidated or repealed. It suggests that the Commission dismisses these developments by claiming that the “ground realities” in India are different.
• High Number of Cases: India has witnessed a significant number of sedition cases filed against individuals for criticizing the government or engaging in harmless activities. It cites the example of 174 cases of sedition filed against nearly 950 individuals since 2010.
• Confusion caused by Precedent: The confusion caused by the Kedar Nath Singh precedent is another aspect of ground realities that the Commission failed to address. The Supreme Court’s admission of multiple petitions challenging the constitutionality of Section 124A, based on the confusion stemming from the Kedar Nath Singh case, indicates the need for clarity and reform in the interpretation and application of sedition laws.
• Impact on Freedom of Expression: The disregard for ground realities also encompasses the impact of sedition laws on freedom of expression and dissent. The Commission’s recommendation to retain sedition laws fails to consider the stifling effect these laws can have on individuals’ ability to question authority, engage in political criticism, or express dissenting views without fear of criminal repercussions

Way forward

• Narrowing the Definition of Sedition: Refining and narrowing the definition of sedition can help prevent its misuse. The focus should be on acts or speech that directly incite violence or pose a genuine threat to the territorial integrity or sovereignty of the country.
• Safeguarding Freedom of Speech: Safeguards should be put in place to protect individuals’ right to free speech and expression, while allowing for robust public debate and the peaceful expression of dissenting opinions.
• Transparency and Accountability: Establish mechanisms to promote transparency and accountability in the application of sedition laws. This includes clear guidelines for law enforcement agencies, regular review of cases, and strict consequences for misuse of the law.
• Public Awareness and Legal Education: Promote public awareness and legal education about the scope and limitations of the sedition law. This can help individuals understand their rights and responsibilities, empowering them to exercise their freedom of speech responsibly while avoiding unlawful acts.
• Focus on Alternative Measures: Emphasize the use of alternative legal measures, such as laws related to defamation, incitement to violence, or hate speech, to address genuine threats to public order or national security. These laws should be effectively enforced to protect individuals without infringing upon their fundamental rights.

Conclusion

• The Law Commission’s recommendations, which include vague standards and police empowerment, do not address the fundamental issues with the sedition law. Lingual changes and procedural reforms alone cannot rectify the deep-rooted problems associated with Section 124A. It is imperative to promote free speech, protect dissent, and foster accountability in a post-colonial democracy like India.

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