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Dissent & Democracy: Why the Sentinel Should Strike Down IPC Sec. 124A

Sedition laws sit at the crossroads of politics and society, and law and justice. The political nature of this “offence against the state” tests the limits of free speech a citizen can rightfully enjoy. India’s polity has changed since 1870, when Sedition was added as an offence under Section 124A of the Indian Penal Code (IPC) to govern restive subjects of the British Crown. This stifling legislation, conceived as a colonial tool to incarcerate freedom fighters, continues to be quickly invoked by free India’s elected rulers against dissenting citizens, deeply damaging the country’s democratic fabric.

This law which chips away at the essence of republican democracy – the right to dissent – has a chequered journey in independent India starting from 1950, when courts upheld free speech. However, the First Amendment to the Constitution put a damper on such liberal judicial interventions. Since then, although judgments urged governments to exercise restraint, the latter chose to unreservedly invoke Sec. 124A to quell dissenters—including protest movements and individuals—expressing views that run afoul of ruling establishments. On May 11, 2022, the Supreme Court accepted the Union Government’s plea that it would re-examine Sec. 124A, but suspended pending criminal trials and court proceedings, and said that it “hopes and expects” Union and State governments to refrain from using this legal provision while it is under reconsideration.

In this essay, Eklavya Vasudev, a Lawyer and Doctoral candidate in Law at the Friedrich-Alexander-Universität Erlangen-Nuremberg, Germany, argues the case for a well-reasoned judgment by the Supreme Court striking down Sec. 124A of the IPC in its entirety by asserting its role as the sentinel of the Constitution. Doing so, he points out, will forestall any moves by governments to abuse the law in some form or the other, be consistent with positions taken by previous Supreme Court judgments and give life to the vision of the founders of the Constitution who unanimously voted against using “sedition” to restrict free speech. On the other hand, leaving Sec. 124A as it is, narrowing its scope, or letting the government replace it with either an updated or a different legislation, will mean a judicial nod for the “sedition juggernaut to roll on in one form or the other to thwart dissent in a secular and democratic republic”.

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The Law of Sedition and India: An Evolutionary Overview

Article 124A, characterised aptly by the Father of the Nation, Mahatma Gandhi, as the “prince among the political sections of the Indian Penal Code designed to suppress the liberty of the citizen”, has a long legal history, originating from English Law.

In this article, Saptarshi Bhattacharya, Senior Coordinator, The Hindu Centre for Politics and Public Policy, traces the journey of the law from 13th century England through the colonial rule in India and the developments in independent India to its present status where the operation of the law has been put on hold by the Supreme Court of India on May 11, 2022.

Bhattacharya throws light on the key doctrines that directed the sedition law, the manner in which it was applied to suit the times over the centuries, the judicial pronouncements that shaped its application, and the manner in which it has been easily used as a political tool to thwart dissent in free India.

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