The Law Commission has said it is of the considered view that Section 124A of the Indian Penal Code dealing with sedition needs to be retained, though certain amendments could be introduced to bring about greater clarity regarding usage of the provision.
In its report submitted to the government, the panel said cognisant of the views on the misuse of Section 124A, it recommends that model guidelines curbing them be issued by the Centre.
"In this context, it is also alternatively suggested that a provision analogous to Section 196(3) of the Code of Criminal Procedure, 1973 (CrPC) may be incorporated as a proviso to Section 154 of CrPC, which would provide the requisite procedural safeguard before filing of an FIR with respect to an offence under Section 124A of IPC," chairman of the 22nd Law Commission Justice Ritu Raj Awasthi (retd) said in his covering letter to Law Minister Arjun Ram Meghwal.
While it is imperative to lay down certain procedural guidelines for curbing any misuse of Section 124A of the IPC dealing with sedition by law enforcement authorities, any allegation of misuse of the provision does not by implication warrant a call for its repeal, the report said.
The commission said sedition being a "colonial legacy" is not a valid ground for its repeal.
In its report submitted to Meghwal, the Law Commission also said the existence of laws such as Unlawful Activities (Prevention) Act and the National Security Act does not by implication cover all elements of the offence envisaged under Section 124A of the IPC.
"Further, in the absence of a provision like Section 124A of IPC, any expression that incites violence against the government would invariably be tried under the special laws and counter-terror legislations, which contain much more stringent provisions to deal with the accused," the report, ‘Usage of the Law of Sedition’, said.
It observed that each country's legal system grapples with its own different set of realities.
"Repealing Section 124A of IPC on the mere basis that certain countries have done so is essentially turning a blind eye to the glaring ground realities existing in India," it said.
In his covering letter, Justice Awasthi recalled that the constitutionality of Section 124A was challenged before the Supreme Court.
"(The) Union of India assured the Supreme Court that it was re-examining Section 124A and the court may not invest its valuable time in doing the same."
Pursuant to the same, the top court directed the central government and all the state governments to refrain from registering any FIR or taking any coercive measures, while suspending all continuing investigations in relation to Section 124A.
Further, it also directed that all pending trials, appeals, and proceedings be kept in abeyance.
The report pointed out that it is often said that the offence of sedition is a colonial legacy based on the era in which it was enacted, especially given its history of usage against India's freedom fighters.
"However, going by that virtue, the entire framework of the Indian legal system is a colonial legacy. The police force and the idea of an All-India Civil Service are also temporal remnants of the British era.
"Merely ascribing the term 'colonial' to a law or institution does not by itself ascribe to it an idea of anachronism. The colonial origins of a law are by themselves normatively neutral. The mere fact that a particular legal provision is colonial in its origin does not ipso facto validate the case for its repeal," the panel said.
"Even though, in our considered opinion, it is imperative to lay down certain procedural guidelines for curbing any misuse of Section 124A of IPC by the law enforcement authorities, any allegation of misuse of this provision does not by implication warrant a call for its repeal," it said.
There are plethora of examples of various laws being misused by ill-intentioned individuals only to settle their scores in cases of personal rivalries and vested interests, with even the Supreme Court recognising the same in a number of decisions, it noted.
"Never has there been any plausible demand to repeal any such laws merely on the ground that they are being misused by a section of the populace. This is so because for every abuser of that law, there might be ten other genuine victims of any offence who direly need the protection of such a law," the report said.
What is then required in such cases is only to introduce legal ways and means to prevent the misuse of such a law, it said.
In the same vein, while any alleged misuse of Section 124A of IPC can be reined in by laying down adequate procedural safeguards, repealing the provision altogether can have "serious adverse ramifications for the security and integrity of the country, with the subversive forces getting a free hand to further their sinister agenda as a consequence," it felt.
According to the note to the law minister, the Law Commission received a reference from the home ministry through a letter dated March 29, 2016, addressed to the department of legal affairs in the law ministry for a study of the usage of the provision of Section 124A and suggest amendments, if any.
