Apar GuptaThis week, the Supreme Court in a historic order provided a measure of relief for the offense of sedition. This colonial law which was used to prosecute freedom fighters like Bal Gangadhar Tilak has been used with increased frequency in recent years.
As per a database built by the portal Article 14, 65% of nearly 11,000 individuals in 816 sedition cases since 2010 were implicated after 2014. Many commentators have correlated this with the political environment and a shrinking space for free expression. This may provide a part of the answer, as the use of sedition is a genuinely cross-partisan issue, varying in severity and frequency of its abuse. Another significant contributor behind a rise in sedition prosecutions may be linked to the increase in internet access. Here, numbers speak for themselves. In March 2014, there were about 60 million internet connections. Today, the number stands at around 788 million. The internet has broken down the conventional model of centralised broadcasting and in doing so, it has made all of us broadcasters as users of social media platforms. Here, this archaic law poses a natural friction to the constitutional values of free expression for a digital republic. It silences and threatens people, more often those that are critical of powerful political figures. What has been the legislative response to this?
The Law Commission of India was alive to this concern, noting in a consultation paper in August 2018 that, “the global trend has largely been against sedition and in favour of free speech”. However, this paper did not result in a report, and no further reports followed as the Union government has failed to constitute it since the retirement of its chairperson Justice B S Chauhan. Subsequently, a committee was established by the ministry of home affairs in May 2020 to recommend reforms to Indian criminal law. While the committee has attempted to invite public feedback and has also made recommendations as reported in the press, concerns have been expressed on bypassing the institutional processes of the Law Commission of India. It has inspired little confidence that such recommendations, if made to strengthen the right to free expression, will be accepted. These inferences arise from a natural reading of statements by politicians and recent legislative business. For instance, take the two laws that have been passed through Parliament. The first is an amendment to the Unlawful Activities (Prevention) Amendment Act, 2019 (UAPA) that permits even individuals, not just groups, to be designated as terrorist. UAPA is being abused frequently in criminal cases being bunched alongside sedition. The second and much more recent law is the Criminal Procedure Identification Act, 2022 which expands police powers of surveillance.
This background becomes important to understand the Supreme Court’s order on sedition and the mixed reactions it has received. The order is not a final judgment but an interim relief till the constitutionality of sedition is determined. Two days before this order came to be passed, the Solicitor General of India put across the view of the Union Government in an affidavit which stated, “The Hon’ble PM believes that at a time when our nation is marking ‘Azadi Ka Amrit Mahotsav’ (75 years since independence) we need to, as a nation, work even harder to shed colonial baggage that has passed its utility, which includes outdated colonial laws and practices.” Relying on such assurances of a legislative review, the court passed directions to keep sedition cases in abeyance till the constitutionality is determined and the case before it remains alive. In effect, this provides a measure of relief to people facing sedition cases and those who may be threatened by fresh prosecutions. Some commentators have critiqued it on first principles for judicial evasion. Quite simply, if a law is unconstitutional and a case is before the court, it should perform its institutional function of judicial review rather than adjourn it on promises of legislative amendments.
Though such amendments may repeal a colonial law, they may promulgate a modern mutant with greater harm like the Criminal Procedure Identification Act, 2022. Another branch of criticism has focused on the implementation of the order given it does not give clear directions. Even enforceability remains an issue as demonstrated by cases of the unconstitutional Section 66A which despite a ruling in 2015 linger in the criminal justice system. These concerns should not distract us from the incremental relief provided by the court. We must welcome it with caution and criticality but remember it is incomplete. This relief will completely fail if sedition is not struck off our statute books by the legislature, failing which by the Supreme Court, in a timely manner. This is important for protecting the democratic rights of every Indian internet user.
Net speak: The rise in sedition cases could be linked to increase in internet access
This article was originally published in Times of India on May 14, 2022, 9:17 PM IST