Background: The Colonial Origins of Sedition Law

Section 124A of the IPC was drafted by Thomas Babington Macaulay in 1837 but was omitted when the IPC was first enacted in 1860. The provision was reintroduced in 1890 through Special Act XVII specifically to suppress rising nationalist dissent. The law carries harsh penalties including life imprisonment.

Use Against Freedom Fighters

  • Bal Gangadhar Tilak: Tried three times for his writings in Kesari
  • Mahatma Gandhi: Prosecuted for articles in Young India in 1922
  • Gandhi famously described Section 124A as "the prince among the political sections of the Indian Penal Code designed to suppress the liberty of the citizen"

Key Judicial Pronouncements

Romesh Thapar v. State of Madras (1950)

The Supreme Court held that mere criticism of the government or creation of disaffection cannot justify restrictions on free speech unless it threatens the security of the State or seeks to overthrow it.

Tara Singh Gopi Chand v. The State (1951) - Punjab and Haryana High Court

Declared Section 124A unconstitutional, noting it was primarily a tool for colonial masters to quell discontent.

Ram Nandan v. State of Uttar Pradesh (1959) - Allahabad High Court

Declared the provision unconstitutional on similar grounds.

Kedar Nath Singh v. State of Bihar (1962)

The Supreme Court upheld the constitutional validity of Section 124A but severely restricted its application. The Court ruled that mere strong criticism is not sedition unless accompanied by incitement to violence or intention to create public disorder.

Balwant Singh v. State of Punjab (1995)

The Supreme Court held that mere casual raising of anti-national slogans by individuals, without public response or violence, does not amount to sedition.

S.G. Vombatkere Freeze (2022)

In S.G. Vombatkere v. Union of India, the Supreme Court placed Section 124A in complete abeyance:

  • No fresh FIRs to be registered
  • No investigations to continue
  • No coercive measures under Section 124A
  • All pending trials to be kept in abeyance
  • The Court observed the law was "engineered for a colonial regime and entirely out of sync with modern democratic social milieu"

Transition to Bharatiya Nyaya Sanhita (BNS), 2023

With the repeal of the IPC, sedition has transitioned to Section 152 of BNS:

  • The term "sedition" (Rajdroh) has been consciously dropped
  • Section 152 penalizes acts endangering "sovereignty, unity, and integrity of India"
  • Shifts focus from penalizing disaffection towards Government to penalizing acts threatening the State itself
  • Criminalizes secessionist activities, armed rebellion, or subversive activities
  • Punishment: Up to life imprisonment or seven years with fine

22nd Law Commission Recommendations (2020)

The Commission strongly recommended retaining the sedition law:

  • To safeguard internal security against extremism and separatism
  • Argued "colonial legacy" tag is insufficient reason for repeal

Proposed Amendments:

  • Incorporate Kedar Nath judicial safeguard by requiring "tendency to incite violence or cause public disorder"
  • Mandatory preliminary inquiry by Inspector-level officer
  • Prior permission from government before FIR registration
  • Warning that complete repeal would force prosecution under more draconian laws like UAPA

Concerns Raised by Revival of Section 124A

  1. Questionable Consent: Accused persons facing prolonged imprisonment may consent out of desperation for bail, raising doubts about voluntary nature
  1. Problem of Co-Accused Persons: Order does not clarify situations where one accused agrees while co-accused refuse, leading to fragmented trials
  1. Chilling Effect on Free Speech: Law frequently misused to intimidate journalists, human rights activists, political dissidents, and students
  1. Colonial Relic: United Kingdom abolished its sedition laws in 2009, arguing it had no place in modern democracy

Steps to Address the Issue

  1. Expedite Seven-Judge Bench: Convene Constitution Bench to rule definitively on constitutional validity under Article 14 (proportionality) and Article 21 (right to life with dignity)
  1. Establish Single Test for Sovereignty: Create unified constitutional standard separating legitimate political speech from actual security threats
  1. Shift Burden of Proof for Misuse: Mandatory disciplinary action against officers weaponizing security charges
  1. Police Training: Sensitize local police to distinguish protected dissent from actual offenses against State
  1. Define Ambiguous Terminology: Narrowly define terms like "subversive activities," "electronic communication," and "feelings of separatist activities" in Section 152 BNS

Constitutional Framework

  • Article 14: Right to equality and proportionality
  • Article 21: Right to life and personal liberty with dignity
  • Article 19(1)(a): Freedom of speech and expression
  • Article 19(2): Reasonable restrictions in interest of sovereignty and integrity of India

Conclusion

India's transition from Section 124A to Section 152 of BNS reflects a shift from protecting the government from criticism to safeguarding national sovereignty from genuine threats. True democratic security lies not in suppressing dissent but in protecting free speech while ensuring narrowly defined laws, judicial safeguards, and accountability.