Watershed moment
On December 8, 2023, HM Amit Shah announced in the Lok Sabha, that new Bharatiya Sanhita legislations were being introduced to replace British era enactments relating to criminal law, to Indianize the criminal justice mechanism. The Bharatiya Nyaya (Second) Sanhita Bill 2023 (BNS, hereinafter) replaces the Indian Penal Code (IPC), Bharatiya Nagarik Suraksha (Second) Sanhita Bill 2023 (BNSS, hereinafter) replaces the Code of Criminal Procedure (CrPC), and the Bharatiya Sakshya (Second) Bill 2023 (BS, hereinafter) replaces the Indian Evidence Act (IEA). Interestingly, although Sec.124A would become inoperative with repealing IPC, the Minister was at pains to separately mention repealing IPC-124A.
On December 21, 2023, PM Modi described passage of BNS-BNSS-BS in the Rajya Sabha as a “watershed moment in our history” and “we have also bid goodbye to the outdated sections on sedition”. [Ref.1] Some consider the passage of these and other laws, after expelling almost all democratic opposition, as democracy’s darkest hour, ironically on the date with the longest hours of darkness.
Sedition
The colonial era Indian Penal Code Sec.124A (IPC-124A) is a prime example of a draconian law. A person who attempts to bring hatred or contempt, or excites or attempts to excite disaffection towards the government established according to law, can be charged with sedition.
Governments, even democratically elected governments, in attempting to retain or increase power and control, have always sought to discourage dissent, and suppress protest and opinions differing from those of the political power structure. In post-Independence India, the reason for successive elected governments supporting continuance of IPC-124A is purportedly for protecting national integrity and security.
Especially in recent years, government agencies and even private individuals have filed FIRs based on IPC-124A, against people demonstrating peacefully, or dissenting with government policies, programs, projects, etc., or making supposedly “derogatory” comments about ministers by words or cartoons, and even against persons who were yet to make a statement/joke. None of these can reasonably be interpreted as incitement to violence, but governments view these as seditious threats to governments or the State. The lower Courts have been acting on almost every such FIR. [Ref.2]
Several petitions challenging IPC-124A, were filed in Supreme Court of India, with Union of India (UoI) as Respondent. These were clubbed together under “S.G.Vombatkere v. Union of India”, and heard by a 3-Judge bench headed by the CJI.
The arguments in the Petitions are mostly centred upon the fear of arrest under IPC-124A, causing inhibition or discouragement of the “legitimate exercise of natural and legal rights” by threat of legal sanction.
IPC-124A enabled governments and individuals, to target and victimize persons in the name of protecting national security and integrity. The victims would be subjected to punishment-by-process, and the indignities and sufferings of arrest, legal proceedings and imprisonment. IPC-124A enabled rule-by-law rather than rule-of-law.
IPC-124A was prone to selective, ill-motivated, deliberate and easy misuse, because individual citizens have begun using IPC-124A to file FIRs to further personal or political agendas including vendetta, for supposed insult or criticism, or even for criticizing some third person holding high office.
This, combined with the willingness of lower courts to readily admit cases, causes the ‘chilling effect’. [Ref.3] Petitioners called for repeal of IPC-124A, as unconstitutional.
Unexpected turnabout
During the hearings until May 7, 2022, UoI was firmly defending IPC-124A as being in the legitimate state interest of protecting the country’s sovereignty and integrity. However, in an Affidavit filed [Ref.4] before the Court on May 9, 2022, UoI suddenly reversed its stance. It stated that “Hon’ble Prime Minister of India has … expressed his clear and unequivocal views in favour of protecting civil liberties” … and “we need to … shed colonial baggage [the Sedition law]”. Accordingly, government “has decided to re-examine and re-consider” the law “before the Competent Forum”, and the “Court may not invest time in examining the validity of Sec.124A once again … and await the exercise of reconsideration … before an appropriate forum”.
Taking the reversal in its stride, the Court observed in its Interim Order that UoI agreed that “the rigors of Sec.124A … is not in tune with the current social milieu” … since Sec.124A pre-dates the Constitution and … “was intended for a time when this country was under the colonial regime”. Further, that “till the re-examination of the provision is complete, it will be appropriate not to continue usage of the aforesaid provision of law by the Governments”. Significantly, UoI did not offer a timeline for re-examination/re-consideration, and the Court failed to set a timeline in its Interim Order.
Tactical withdrawal
A strong line of Petitioners’ arguments was that a charge of sedition had a ‘chilling effect’ with consequent impact on natural and legal rights, magnified by the potential for its misuse. The trend of the arguments during the hearings pointed towards upholding the chilling effect of IPC-124A. Possibly, government apprehended that the Court may strike down IPC-124A as unconstitutional, rather than reading it down.
If attenuation of natural and legal rights by the ‘chilling effect’ of a law was established, other extant laws having demonstrable ‘chilling effect’ – such as Unlawful Activities (Prevention) Act (UAPA) and National Security Act 1980 (NSA) – could also be faced with challenge on similar grounds. Such an outcome would be undesirable.
UoI’s Affidavit offering to re-examine and re-consider IPC-124A, quoting PM’s view on protecting civil liberties, was arguably triggered by this trend. It earned government time to re-strategize its stance with regard to constitutional rights and civil liberties. The turnabout of May 9, 2022, was government’s tactical withdrawal.
Sedition re-examined
Acceding to UoI’s offer to re-examine IPC-124A, the 3-Judge bench issued an Interim Order, stating: “… till the re-examination of the provision is complete, it will be appropriate not to continue usage of the aforesaid provision of law by the Governments”. Notwithstanding that the Order was more of a plaintive request and expectation of honourable and reasonable conduct on the part of governments, it was effectively a stay in favour of the Petitioners.
However, even with occurrences of misuse of IPC-124A in contravention of the Interim Order, government remained silent. The sedition law was effectively in abeyance, in a state of limbo, its innards as yet unexamined.
UoI entrusted re-examination of IPC-124A to the Law Commission, chaired by Justice Ritu Raj Awasthi. After year-long deliberations, the Law Commission made its Report, recommending retention of IPC-124A. It went further, to recommend enlarging the definition of sedition to include “tendency” to incite violence or cause public disorder as constituting sedition, and enhancing the prison term on conviction from the present 3-years to 7-years or life imprisonment. It also recommended incorporating “procedural safeguards” to prevent misuse of IPC-124A.
On June 27, 2023, Justice Ritu Raj Awasthi, for his part, buttressed the arguments in the Report and endorsed the “procedural safeguards”. He justified the recommendations for the reason that the present situation from Kashmir to Kerala and Punjab to the North-East, makes it essential to retain the law to safeguard the unity and integrity of India.
Although the thrust of UoI’s pre-May 7, 2022 arguments was reversed by its offer to “re-examine and re-consider” the law because the Prime Minister was in favour of “protecting civil liberties”, the Law Commission’s Report reverted to government’s earlier stance, even strengthened it. It was clearly not in the direction of favouring or protecting civil liberties. It is almost as if protecting people’s civil liberties would compromise the unity and integrity of India.
It remains unclear whether, while re-examining IPC-124A, the Law Commission and its Chairman displayed sturdy independence of thought and approach by going against PM’s clear and unequivocal view in favour of protecting civil liberties, or whether there was an implicit element of duplicity.
The new triad of laws
A critique [Ref.5] of the BNS-BNSS-BS triad reveals that the new laws deployed to their fullest extent, provides scope to enable dramatic scaling-up of punitive action against law-abiding citizens, by governments and ill-motivated persons, for partisan reasons.
The definitions of crime and the provisions for punishment in the BNS-BNSS-BS triad, are arguably more ‘chilling’ towards legitimate exercise of civil and legal rights, than those of IPC-124A. IPC-124A was draconian, but the BNS-BNSS-BS triad is its more draconian “avatar”.
Bharatiya Sanhitas contradict PM’s view in Affidavit
It is the charter of the Executive, Legislative and Judiciary – along with other creatures of the Constitution – to enhance people’s freedoms, especially by implementing the Directive Principles of State Policy to enhance Justice, Liberty and Equality. Doubtless, laws have to be faithfully implemented by governments. But by no stretch of imagination, can implementing draconian laws which suppress, or permit motivated suppression of legitimate civic and legal rights, be a move towards enhancing freedoms.
The BNS-BNSS-BS triad legitimises and facilitates the use of criminal law for political or personal purposes, causes a ‘chilling effect’, instils fear of legal sanction and punishment-by-process, and effectively curtails people’s civil liberties. This is contradicts government’s intention expressed in the Affidavit on May 9, 2022, and especially PM’s “clear and unequivocal views in favour of protecting civil liberties”.
Unbecoming flip-flop
One cannot fail to notice government’s flip-flop: In the face of Petitioners challenging IPC-124A, UoI argues strongly for its continuance; then, UoI deftly executes a turnabout to offer re-examination of IPC-124A quoting PM’s unambiguous opinion; next, the Law Commission recommends continuance of IPC-124A with enhanced virulence; and finally, government enacts the BNS-BNSS-BS triad, which is effectively IPC-124A on steroids.
It does not speak well of government’s handling of constitutional-legal issues. PM’s “expressed clear and unequivocal view in favour of protecting civil liberties” in Court, sits uneasily with BNS-BNSS-BS passed in the apex legislature of the “Mother of Democracy” without opposition debate.
The Supreme Court, India’s last bastion for democracy and civil liberties, will face one of the greatest tests in its history when the constitutionality of BNS-BNSS-BS is challenged, even while IPC-124A remains unadjudicated.
References (already hyperlinked in the text)
1. Sravasti Dasgupta; “‘Watershed Moment,’ Says Modi as Rajya Sabha Passes Three Criminal Bills in Absence of Opposition“; <https://thewire.in/government/watershed-moment-says-modi-as-rajya-sabha-passes-three-criminal-bills-in-absence-of-opposition>; The Wire; December 21, 2023.
2. S.G.Vombatkere; “Tracking Sedition: From 1857 to the Present; <https://theleaflet.in/tracking-sedition-from-1857-to-the-present/>; The Leaflet; May 15, 2022.
3. S.G.Vombatkere; “Understanding Sedition”; <https://countercurrents.org/2022/06/understanding-sedition/>; Countercurrents.org; 18 June 2022.
4. S.G.Vombatkere; “Sedition and the Law”; <https://www.thecitizen.in/index.php/en/NewsDetail/index/4/21872/Sedition-and-the-Law>; The Citizen; May 15, 2022.
5. G.Mohan Gopal; “The Three Criminal Law Bills: Using Criminal Law to Establish Permanent Extra-Constitutional Emergency Powers; <https://thewire.in/law/the-three-criminal-law-bills-using-criminal-law-to-establish-permanent-extra-constitutional-emergency-powers>; The Wire; November 1, 2023.
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S.G.Vombatkere retired in 1996 from service in the Indian Army, in the rank of Major General. He holds a PhD in Civil structural dynamics (1987) from I.I.T., Madras, and is Life Member of the Indian Social Science Academy. He is among the Petitioners challenging the Sedition law IPC-124A.
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