If Country Not Open to Criticism, Independence Makes No Difference: Law Commission on Sedition

New Delhi: If there is one section that is often invoked to silence critics in India, it is Section 124 A of the Indian Penal Code.

The 21st Law Commission of India, headed by Justice Balbir Singh Chauhan, has in a consultation paper on sedition law stated that “democracy is not another name of majoritarianism; on the contrary it is a system to include every voice, where thought of every person is counted.”

The law panel has reiterated that charging the critics of government or country would only push the country back to the colonial era.

“If the country is not open to positive criticism, there lies little difference between the pre- and post-Independence eras. Right to Criticize one’s own history and the Right to Offend are rights protected under free speech,” reads the consultation paper.

It was in May this year that the government had asked the Law Commission to examine the country’s sedition laws.

The government had acknowledged that the definition of sedition law is "very wide" and said that it was to be reviewed by the Law Commission after members in Rajya Sabha demanded that it should be scrapped as it is a colonial legacy and a "relic".

A total of 112 cases of sedition under Section 124-A of the Indian Penal Code have been filed in the last 3 years, according to the Ministry of Home Affairs figure of 2017.

In October last year, Tamil Nadu government had slapped sedition charges against TTV Dinakaran who had been leading dissidence against the ruling AIADMK. The Karnataka government too in 2016 slapped a sedition case against Shashidhar Venugopal, the leader of the Akhila Karnataka Police Mahasangha for leading a protest that involved a state’s constabulary striking work. Congress MP Shashi Tharoor was also recently charged for sedition.

In its 35 page report, the Law Commission has stated that although freedom of speech and expression in India is regulated by ‘reasonable restrictions’, such restrictions need to be justified in the name of “harm.”

“The restrictions are tried to be justified on the ground of harm. For example, John Stuart Mill explains the ‘harm principle’, stating that until and unless a speech does not result into some sort of harm, the same cannot be suppressed,” reads the paper.

The barrage of sedition cases that were filed against the JNU students such as Kanhaiya Kumar and Umar Khalid had caused uproar in the country after they were booked under the colonial era law for raising ‘anti-India’ slogans.

However, the commission now believes, “every irresponsible exercise of right to free speech and expression cannot be termed seditious”.

“For merely expressing a thought that is not in consonance with the policy of the government of the day, a person should not be charged under the section. Expression of frustration over the state of affairs, for instance, calling India ‘no country for women’, or a country that is ‘racist’ for its obsession with skin colour as a marker of beauty are critiques that do not threaten‘ the idea of a nation,” the commission suggests.

The commission has also taken note of the two private members’ bill moved to amend or do away with sedition laws in the country by Shashi Tharoor and D Raja of CPIM.

However, the commission has expressed concern that sedition laws can be “misused as tool to curb free speech.”

“Dissent and criticism are essential ingredients of a robust public debate on policy issues as part of vibrant democracy. Therefore, every restriction on free speech and expression must be carefully scrutinised to avoid unwarranted restrictions,” says the paper.

The commission has expressed surprise that when the United Kingdom who introduced this law in India has itself done away with this law in their own country 10 years ago then what makes India still adhere to Section 124A?

Few other questions which the commission has placed in the public domain are: Can the section on sedition be renamed and then punishment be prescribed?

The commission has also asked to what the citizens of our country can enjoy the right to offend. Would there be a definite point where right to offend would qualify as hate speech and also what safeguard needs to be developed to prevent misuse of Section 124 A, the court has asked.