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A Balancing Act: Sedition and The New Nyaya Sanhita Bill

Authored by Pathmanabhan Sooraj, a 2nd Year, Law Student at The National University of Advanced Legal Studies (NUALS), Kochi


Sedition and The New Nyaya Sanhita Bill
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Abstract

On the 11th of August 2023, a decision that could potentially alter the Indian Legal Landscape occurred; a new bill was proposed to replace the current Indian Penal Code of 1860 - The Bharatiya Nyaya Sanhita Bill. Clause 150 of the proposed legislation, which lies under the title of ‘Acts endangering sovereignty, unity and integrity of India,’ Sedition law in India since the inception of the Indian Penal Code, has been known for its draconian nature. This article attempts to bring to the fore the pertinent fact that Sedition Laws have not been repealed but rather brought in a new form through the proposed bill. 


Introduction

Sedition law in India, defined under Section 124A of the Indian Penal Code (IPC), has recently been a topic of heated debate and discussion. This law criminalises any speech or expression that brings or attempts to bring into hatred or contempt or excites or attempts to excite disaffection towards the Government established by law in India. However, the law has been widely criticised for its potential misuse and for being used as a tool to suppress dissent. In light of this, the Indian government has recently proposed a new Bill called the Bharatiya Nyaya Sanhita (BNS) Bill, 2023, which seeks to repeal the sedition law and introduce a new provision with a broader definition of the offense. The foremost argument against Sedition is that it is a remnant of the colonial past; when searching upon the antecedents of the law, it was first drafted by Macaulay in 1837 and finally added by James Stephen in 1870 as 124A of the Penal Code. The Home Minister stated that the section on Sedition Laws was repealed; at the same time, a close examination of Clause 150 of the proposed Bharatiya Nyaya Sanhita Bill reveals worrisome details.


Supreme Court And Sedition: A Complicated Narrative

In the case of S.G. Vombatkere Versus Union of India, The Supreme Court stopped the enforcement of Sedition; it directed the Central and State Governments to keep in abeyance all pending trials, appeals, and proceedings concerning Sedition. The Court treaded on a very thin line between the security concerns of the state and civil liberties that are guaranteed to citizens. It also directed the Central Government to reconsider this section of the law as it was not in line with the ‘social milieu’ in the current age. 


The Supreme Court's views on sedition have evolved over time, reflecting changing societal norms and the importance of preserving democratic values. A significant transformation in the Court's perspective is the recognition of dissent as a democratic cornerstone. Recent judgments have underscored that criticism of government policies, however vociferous, should not be equated with sedition.


One of the main vitiating factors is the contravention of Article 19 (1) (a), which guarantees the right to freedom of speech and expression; according to research conducted by the media foundation Article 14, it has found that around 11,000 individuals have been charged under sedition in the past ten years. This shows the extent to which Sedition Law has been applied in India in recent years; there is a thin line between balancing rights with concerns of national security demands a careful calibration of the existing legal framework.


The Law Commission Report: A Different View

The 279th Law Commission Report, which advocates for a more stringent form of Sedition Law, also emphasizes upholding the Kedar Nath Judgement, which upheld the validity of Sedition in India. According to the Commission, the penalty should be increased to include a fine and a sentence of seven years in jail or life imprisonment. The penalty at this time is either a three-year sentence or a life sentence in prison. The new bill has essentially incorporated some of the recommendations put forward by the law commission; the imprisonment period under Clause 150 of the new bill has increased to 7 years with fine or life imprisonment. 


The debate between national security concerns in conflict with the freedom of expression has always been a case of much uncertainty. A section by which Mahatma Gandhi himself was arrested during the colonial period signifies the detrimental effects of the law being used in arbitrary terms. In its 42nd report in 1971, the Commission recommended that the sedition law be retained but with certain modifications. It emphasised the importance of balancing the right to freedom of expression with the need to protect the security and sovereignty of the state. The Commission suggested that the term "government established by law" be replaced with "Government of India" to clarify the scope of the law and prevent its misuse against state governments.


The Commission itself accepted that the primary defect in the section is that it was not being applied purely to acts that are against the integrity, sovereignty, or public order; to avert this, a suggestion contemplated was to put in the mens rea or the ‘guilty mind’ factor as an addition to the section.


International Reforms: A Model To Emulate

When the current sedition law is being under the Supreme Court’s purview, the Nyaya Sanhita Bill bringing a law along similar lines would principally open a horizon of conflict between the legislature and the judiciary. The United Kingdom’s Sedition Act of 1661 has had a considerable influence on Indian Sedition law. In 13th-century Britain, sedition was introduced as a tool to limit the independence of the printing press and its power to criticise the King.[1]


The Sedition Act of 1661 punished anyone who wrote, printed, or preached remarks critical of the King. The Coroners and Justice Act of 2009 abolished sedition in Britain; similarly, in Singapore, Sedition was repealed after 83 years of usage by The Sedition (Repeal) Act 2021, which was first introduced in The Sedition Ordinance of 1938. The Penal Code and The Criminal Procedure Code were, in course, amended. In certain countries, such as The United States, the law remains present, but in implementation, it is a dead law. When common law countries across the world are showing a tendency to abandon the colonial era remnants of sedition, India too has finally joined the bandwagon with much pomp.


The crime of sedition, as it came to be interpreted in modern England, was much broader in its scope than how it was applied in India. The punishment prescribed for committing the crime was also disproportionately high. Commission of the act attracted imprisonment for life or a high fine. However, with the development of England's criminal and constitutional law, the crime of sedition became almost obsolete. People have been charged with the crime only a few times over the last century. The Bharatiya Nyaya Sanhita, by seeking to revoke Sedition under 124A, is a misnomer as it is currently under the purview of the Supreme Court of India and has been referred to a larger bench for finality in the matter of Sedition.


Democratic Values and Sedition Laws: Charting a New Course for India (Bharatiya Nyaya Sanhita Bill)

The existence of the sedition law in India’s legal framework raises questions about its compatibility with its democratic values. While the new Penal Code aims to do away with the essence of Sedition, the addition of Clause 150 in the new bill will only augment the previous application of the law in India. Only the word ‘Sedition’ has been removed from the Penal Code, and its procedural aspects still remain the same. The central argument against Sedition in the Penal Code postulated is the “vagueness” of its language, particularly the use of the terms “hatred,” “contempt,” and “disaffection.” This ambiguity has not been resolved in the Nyaya Sanhita Bill; for instance, the term “subversive activities” can be interpreted in any manner, but it fails to define the specific actions that may constitute the offence. The distinction between criticism and disloyalty to the government remains unanswered in the Bharatiya Nyaya Sanhita Bill. 


Another disturbing facet of the new Bill is that it continues the legacy of Sedition Law in the penal code by criminalising acts that “excites or attempts to excite secessionist activities” as well as activities that “endanger sovereignty or unity and integrity of India”, the main concern this creates is a lack of definition as to what acts constitute such activities, this was not well-defined in the Penal Code and the same is inherited by the Bharatiya Nyaya Sanhita Bill as well. The constitutionality of Clause 150 of the Nyaya Sanhita will remain uncertain as the major tenets of Sedition have unfortunately been retained in the new Bill. 


In Balwant Singh v. State of Punjab [2], the Supreme Court held that casual slogans raised without creating any sort of disturbance or affecting the law and order situation cannot be considered Sedition, the extent to what amounts to an act against the sovereignty of a nation is not identifiable in black and white, the Supreme Court has often linked Sedition as a punitive measure imposed to prevent anarchy [3] and for the safeguarding of the security of the nation. The words of hatred, contempt, and disaffection, which are ambiguous, are not found in Clause 150 of the Nyaya Sanhita Bill, which is a step in the right direction.


Conclusion

The new Bharatiya Nyaya Sanhita Bill, as a revolutionary step in reforming the Indian Judicial System, falls short in reducing the ambiguities as well as the Uncertainty that existed under Section 124A of the Indian Penal Code, the step to remove the word ‘Sedition’ in the new Bill is in furtherance of the changing view of the Supreme Court on Sedition Law, a law which evolved to safeguard the national security and the sovereignty of the nation has far exceeded its use and the misuse of the section is more prevalent than its rightful use, Clause 150 of the Bharatiya Nyaya Sanhita Bill should be brought in a manner which safeguards both the freedom of speech and expression as well as public order. Ultimately, the success of any sedition law in India or elsewhere should be measured not only by its effectiveness in maintaining national security but also by its commitment to upholding the democratic values and freedoms that are at the heart of any thriving democracy.


References

[1] Gauri Kashyap, ‘Sedition in the Common Law Jurisdictions’ (Supreme Court Observer, 20 May 2021) <https://www.scobserver.in/journal/sedition-in-the-common-law-jurisdictions-uk-usa-and-india/

[2] Balwant Singh v. State of Punjab, (1995) 3 SCC 214

[3] Niharendu Dutt Majumdar v. King Emperor, 1942 SCC OnLine FC 5

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