Written by Srikantha Parthasarathy
Section 124A of the Indian Penal Code (IPC), the Sedition Act, was questioned in the Supreme Court of India for justifiable reasons as it was not compatible with international law. The SC wanted to examine the constitutionality of the law, but the government said it would review the law.
This has raised many questions, including the filing of new cases under this section. The SC properly dismissed it, ordering that no more cases be registered under the sedition law.
The IPC’s call for 124A is inherently short-sighted, and has multiple limbs and nails to catch anyone making anti-state remarks. The first such case in independent India was Ram Nandan v. State of Uttar Pradesh (1958), and since then the case has had a barrage.
The problem with the sedition law in India is not just 124A, but the entire length and breadth of section 121-124A of the IPC which relates to “waging war against the state”. Charges under multiple headings as defined by these sections – so as to give the public prosecutor sufficient foothold to prosecute a person under ‘effective treason’ – are not uncommon. The National Crime Research Bureau has released figures for 2010-2020 showing that 168 sedition cases were registered in Bihar alone.
A meaningful position on the question of criminalization of ‘sedition’ activity is not another law, but the complete repeal of sedition law. The SC has made it clear that it will not entertain any case arising out of a sedition FIR. One would normally assume that the Supreme Court today decided to overturn the way the law stands. The SC’s intentions are commendable, but law enforcement, without stating 124A, may resort to additional provisions of Sections 121-124. Are those cases automatically barred by this order? Nothing like that.
The problem with sedition charges is not only because of the 124A, but also because of the add-ons created in the chargesheet, which makes it difficult for an accused to get protection due to the 124A prohibition on calling a complaint. It is like cutting down a branch of a tree which has produced a poisonous fruit but has made the tree look the same through other branches.
Another question that needs to be considered is whether the SC has thrown a wrench in the consultative process that the government aspires for. The Supreme Court has duly acknowledged the government’s delaying deployment tactics, but has failed to provide relief in the case of 324 cases of treason registered between 2014-2019 – with a 99.98% acquittal rate, provided the cases go to trial.
Again, redemption was a six-year struggle. Restrictions on 124A in FIRs are likely to affect a statistically consistent ~ 50 persons per year. The Supreme Court order thus effectively protects a small group, but slapping a ে 500 person on a charge of treason does not provide any relief because there are charges other than 124A to fight against them.
The problem with the Supreme Court order is the trial of the sedition cases registered so far. If it hurts the law, it will not undo the wrongs of the past. The Supreme Court must urge the government very clearly that any law that seeks to enact later should have a clear precautionary order before documenting sedition as a crime. This presents a paradox, and thus the only solution is to repeal the sedition law.
It has an international precedent. The UN General Assembly adopted the International Covenant on Civil and Political Rights (ICCPR) on December 16, 1966. Article 19 of the resolution states that “everyone shall have the right to freedom of expression (sic) regardless of borders, orally, in writing or in print” (sic). The ICCPR now states that it is the responsibility of the prosecution to prove beyond doubt that alternative means were available (Shetko v. Belarus, 2006).
In Erbakan v. Turkey, the European Court of Human Rights has concluded that even if an activity does not promote secularism, it will not arbitrarily revoke freedom of expression and upholds Article 10 of the Human Rights Act (equivalent to the EU). Article 19 of the ICCPR).
The court further held that the onus is on the state to satisfy the court that there is no alternative remedy other than filing a criminal case against the person.
The ban imposed by the SC on the new case is emotional; It is still widely used by law enforcement agencies and is another way to charge a person to be deployed at the drop of a hat.
The author is a professor in the Department of International Law