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Reviewing the sedition law

Under the Narendra Modi government over 120 obsolete laws have reportedly been repealed. According to the data compiled by the Legislative Department of the Law Ministry, with the passage of two bills in Parliament, 125 archaic laws have been repealed. But it is the sedition law under Section 124(A) of the Indian Penal Code, which has sparked a serious public debate. In a positive move, the Centre has informed Parliament that the Law Commission has set up a team to study the alleged abuse of the colonial-era sedition law. Such a move comes amidst nationwide outrage over the decision to book JNUSU president Kanhaiya Kumar for sedition for allegedly “anti-national” sloganeering. 

Under Section 124(A) of the Indian Penal Code, a person can be charged with sedition if his speech or act “attempts to bring into hatred or contempt, or excites or attempts to excite disaffection towards the government”. The sedition law was first promulgated by the British Raj in an obvious bid to stifle free speech and expression. Many freedom fighters during the anti-colonial struggle were jailed under the sedition law, including Lokmanya Tilak and Mahatma Gandhi. In response to being charged under Section 124A, Gandhi once told a British judge that “sedition was the highest moral duty of a citizen”. 

Since the law is about “disaffection against the state”, Gandhi said that “affection cannot be manufactured or regulated by law”. Due to its extremely wide ambit, the law is still often used by the police as a tool to silence dissidents. Fortunately, convictions under the sedition law are rare because of a caveat added by the Supreme Court to the sedition law in a 1962 judgment. The apex court made it abundantly clear that seditious speech and expression could be punished only if the speech is accompanied by “violence” or leads to a direct “incitement” to “violence”. 

In a subsequent judgment, the apex court went one step further and unambiguously stated that only speech that amounts to “incitement to imminent lawless action” can be criminalised. Merely making calls for a violent revolution against the State cannot amount to sedition unless it can be proven that there is an incitement to “imminent” violence. More importantly, in its popular judgment on Section 66 of the IT Act in 2015, the apex court makes a clear distinction between “advocacy” and “incitement”, stating that only the latter can be punished as per law.
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