The government’s admission in Parliament that the
present definition of ‘sedition’ in the Indian Penal Code is too wide and requires reconsideration, is the first indication that the fallout of the Kanhaiya Kumar episode has had a chastening effect on the ruling party. There seems to be a realisation that invoking the draconian penal provision against students of the Jawaharlal Nehru University was an act of overreach by the Delhi Police. Further, legal luminaries had pointed out that the essential ingredient of sedition — an imminent threat to public order — was absent in the case. Opinion is growing that the relevant provision, Section 124-A, has no place on the statute book. While Union Home Minister Rajnath Singh assured Opposition members that an all-party meeting on the issue would be convened after the Law Commission submitted its report on the matter, Minister of State for Home Kiren Rijiju made a pointed reference to concerns that the definition of ‘sedition’ was very wide. He also sought to clarify that he was not discussing the
merits of the case against JNU students or defending the action of the Delhi Police, indicating a significant political climbdown. In other remarks, Mr. Rijiju recalled that the Law Commission in its 42nd Report had rejected the idea of repealing the section altogether. A look at the 1971 report shows that in fact it wanted to expand the term relating to exciting “disaffection towards the government established by law” to cover disaffection towards the Constitution, Parliament, the government and legislatures of the States, and the administration of justice.
In penal law, vague and ‘over-broad’ definitions of offences often result in mindless prosecutions based merely on the wording of the act that seems to allow both provocative and innocuous speeches to be treated as equally criminal. While upholding sedition as an offence that fell under the ‘public order’ restriction on free speech, the Supreme Court ruled that it ought to be invoked only if a particular speech or action had a “pernicious tendency to create public disorder”. Words such as “excites or attempts to excite disaffection” or “brings into or attempts to bring into hatred or contempt” are unacceptably vague, and the further explanation that ‘disaffection’ includes “disloyalty and all feelings of enmity” compounds the problem. The provision in effect appears to demand ‘affection’ towards the government, except for a general exception allowing disapproval of governmental measures. Two High Courts had declared Section 124-A unconstitutional before the Supreme Court upheld the section in 1962 in Kedar Nath Singh v. State of Bihar. The Law Commission, while revisiting the issue, should take into account recent developments, especially the flagrant instances of misuse of the sedition law and the tendency to invoke it against those involved in strident forms of political dissent and scathing criticism of governments. One way to limit its mischief is to narrow the definition; but a more rational and constitutional option would be to scrap the provision altogether.
