India’s New Sedition Law: Old Wine, New Bottle, New Label

Home Minister Amit Shah introduced three bills on August 11 in Parliament to overhaul the country’s criminal justice system. Among them is the Bharatiya Nyaya Sanhita (Indian Justice Code), 2023, which will replace the Indian Penal Code (IPC).

“Everybody has the right and freedom to speak his or her mind,” Shah said, introducing the proposed bill. “We are repealing the sedition law completely,” he added.

Although Section 124A of the IPC does not mention the word “sedition,” it has been known as the sedition law. “Whoever, by words, either spoken or written, or by signs, or by visible representation, or otherwise, brings or attempts to bring into hatred or contempt, or excites or attempts to excite disaffection towards the Government established by law shall be punished with imprisonment for life, to which fine may be added, or with imprisonment which may extend to three years,” it reads.

Enacted in the 19th century, Section 124A was used by the British colonial government to silence voices of dissent and to deal with Indians who challenged their rule. Among those who were convicted and served long jail terms under this law was Mohandas Karamchand Gandhi, the leader of India’s freedom struggle. 

Independent India retained the sedition law. 

Shah now says that his government has scrapped it. However, this does not seem to be the case. 

Part VII of the Bharatiya Nyaya Sanhita Bill is titled “Of Offenses against the State.” It includes Section 150, which reads: 

Whoever, purposely or knowingly, by words, either spoken or written, or by signs, or by visible representation, or by electronic communication or by use of financial mean, or otherwise, excites or attempts to excite, secession or armed rebellion or subversive activities, or encourages feelings of separatist activities or endangers sovereignty or unity and integrity of India; or indulges in or commits any such act shall be punished with imprisonment for life or with imprisonment which may extend to seven years and shall also be liable to fine.

Like the colonial sedition law, the bill that will replace it does not mention the word “sedition.” However, it expressly criminalizes acts endangering the “sovereignty or unity and integrity of India.” 

Not only is Section 150 “about criminalizing sedition” but also, the definition of the offense under the new bill is “more expansive,” a senior Supreme Court advocate said. It brings under its sweep acts like engaging in secession and armed rebellion, undertaking subversive activities, or encouraging feelings of separatist activities. It also includes aiding such efforts through “financial means.”

“While the government has done well to drop words like ‘disaffection’ against the government or bringing it into ‘hatred or contempt’ that were part of Section 124A, its inclusion of overly broad terms like ‘subversive activities’ could be misused,” the advocate said.

Punishment under Section 150 is more stringent too. The minimum punishment has been increased from three years imprisonment to seven years under the proposed bill. 

Sedition laws have been useful weapons in the hands of governments across the world to crush dissidence. In India, successive governments have misused the law to silence critics and settle scores with political rivals. 

Opposition party politicians, journalists, NGOs, activists, and students have been charged under Section 124A for criticizing or even raising questions about government policies. In 2011, an entire village of some 7,000 people was slapped with sedition charges for protesting against the Kudankulam Nuclear Power Plant in Tamil Nadu. The sedition law has been invoked in the most absurd of situations – against students cheering for Pakistan in an India-Pakistan cricket match and the principal and staff of a primary school for staging a play that was critical of a controversial citizenship bill, for example.

Proponents of the sedition law maintain that India needs this to counter threats to its territorial integrity. “The present situation right from Kashmir to Kerala and Punjab to the Northeast is such that the law on sedition is necessary to safeguard the unity and integrity of India,” Law Commission Chairman Justice Ritu Raj Awasthi told the Press Trust of India soon after the panel had recommended retention of the law in June this year. 

Proponents of the sedition law have also countered criticism of the large number of cases of misuse of the law by pointing to the low conviction rate. However, the trial process is punishment enough. Those charged with sedition can languish in jail for years on end. This was the case with journalist Siddique Kappan, who was arrested in October 2020 on sedition and terrorism charges for attempting to go to Hathras in Uttar Pradesh to report one the gang rape of a Dalit woman. He spent 28 months in jail without trial before being released on bail in February this year.

Legal experts have called for procedural safeguards to prevent the misuse of the sedition law. But critics point out this isn’t enough. So long as sedition is a punishable crime, so long as the essence of sedition remains in India’s rule books, even if the word is not explicitly mentioned, it poses a threat to democracy. It has a chilling effect on people and severely restricts their constitutionally guaranteed right to freedom of speech.

While hearing petitions for scrapping Section 124A, the Supreme Court in a landmark ruling in May 2022 ordered that it be kept in abeyance until the central government completed its promised review of its provisions. The ruling nudged the Bharatiya Janata Party government to act on the matter.

Sadly, instead of scrapping the sedition law or at least diluting it, the government has chosen not only to give it a fresh lease of life but to expand its ambit with its new bill. The proposed sedition bill is old wine in a newly labeled bottle.