‘Sedition Removal Won’t Hurt The State, Will Preserve Individual Rights’

As narrated to BQ Prime.

The first point to note is that it is a very positive move that the union government has decided to reconsider the law on sedition. This is a colonial-era archaic law that needs to go. The fact that the government has decided to relook at it is a very positive step.

In this act, we must recognise the government’s sensitivity to citizens’ rights, especially under Article 19 and also under Article 21 of the Constitution.

The second point is that the solution that the Supreme Court had suggested on May 10 [of the central government writing an advisory to states] was not workable. Therefore, the court rightly has taken a decision that since the government is having a relook, this provision and prosecutions in relation to it be kept in abeyance in the meanwhile.

As to how that will work out in practice may require some fine-tuning, because there are trials that have Section 124A of the Indian Penal Code as well as other provisions being used. Having said that, at least for future cases, S. 124A is not going to be invoked for now, which is a great relief.

Both the government and the courts have come out better and stronger, and it's a move in the right direction from the perspective of citizens and non-citizens.

Impact On Existing Proceedings

Coincidently, I had been arguing a Section 124A matter of the journalist Aman Chopra of News18 [before the Jodhpur Bench of the Rajasthan High Court] since Monday. On Tuesday, we got a stay order in our favour.

On Wednesday, as this order came in from the Supreme Court, we apprised the high court of it, the Court took cognizance of it and the interim order was continued and expanded in scope. As in this instance, the issue of the application of this appropriate order of the Supreme Court is going to be relied upon by different accused before the Indian courts.

Insofar as sedition is concerned, there will be no invocation in future cases. In pending cases, the aspect of sedition will not be proceeded with. That’s where fine-tuning may be needed.

Of course, the state or the accused may argue that both these are two parts of a whole and are inter-connected, and therefore you cannot stay only one and the complete proceedings may come to a halt.

Government’s Reconsideration Exercise

All over the world, there are audits of legislation, sometimes with a five-year or ten-year gap. They have these periodical audits which take place to see if a law that’s been brought in is working or not, does it need to be fine-tuned, retained or does it need to be revoked? That exercise goes on in many countries.

There is also the concept of desuetude—the principle that when a law is not being used for a very long time, the court can say that such old law has no relevance in today's age as it has fallen to disuse and declare it to be void. In 2011, I had argued desuetude, (unsuccessfully) in the first round of the challenge to Section 377 of the IPC on unnatural sex.

The government is now to take a call on reconsideration of the sedition provision keeping in view today’s information age.

Once it does that, it would possibly look at two things.

First, is there an adequate provision to cover offensive acts which are brought under the scope of sedition?

Second, after reviewing the sedition provision, the government would then send it as an amendment to Parliament. Then Parliament will have to amend or repeal this provision or reject the amendment bill. That is the way the executive will put it before the legislature and the legislature will take a call on it.

Under the Unlawful Activities Prevention Act and under other provisions of the IPC, there is enough provision for prosecuting violent acts against the state. The offence of sedition, which arises from a time when there were kings and emperors, is no longer relevant in a democracy where we govern ourselves as a people. The Preamble to the Constitution refers to “we the people of India”, giving ourselves this constitution. If we are electing representatives to represent us, then a critique of the representation or a critique of the government should not be an offence. We are entitled to critique our own government because we are the ones who elect them, people are sovereign.

Scope Of Use Of Other Laws

The other provisions deal with violent acts or acts of disturbing public order. Sedition deals with spoken or written words of disaffection. If a person commits an act that is violent or disturbing public order, for that there are adequate provisions in the law. We don't need to use sedition for the spoken or written word which leads to the violent act because the violent act is punishable.

Therefore, even if sedition goes, there are existing provisions that can be used by the state.

Acts of violence are punishable under special provisions. Unfortunately, sedition is also applied in addition to that. The removal of sedition will not be detrimental to state interest and will preserve and ensure individuals’ fundamental rights and interests.

Sidharth Luthra is a Senior Advocate at the Supreme Court of India, and a former Additional Solicitor General of India.

The views expressed here are those of the author, and do not necessarily represent the views of BQ Prime or its editorial team.