The Chief Justice of India, N.V. Ramana, as well as many editorials and op-ed columns, have hailed the assurance given by Solicitor General Tushar Mehta on 11 May 2022 on behalf of Prime Minister Narendra Modi: “At a time when the country is marking ‘Azadi ka Amrit Mahotsav,’ we need to, as a nation, work even harder to shed colonial baggage that has passed its utility, which includes outdated colonial laws and practice. In that spirit, the Government of India has scrapped over 1500 outdated laws since 2014-15…The Government of India, being fully cognizant of various views being expressed on the subject of sedition and also having considered the concern of civil liberties and human rights, while committed to maintain and protect the sovereignty and integrity of this great nation, has decided to re-examine, and re-consider the provision of Section 124A of the Indian Penal Code which can only be done before the competent forum.”
Others like to point to the counterfactual: Every single government in India—from the Jawaharlal Nehru to the Narendra Modi government—while paying lip service to the Fundamental Rights enshrined in the Constitution, have ensured that Preventive Detention (PD) and sedition-related legislation remain a part of the governance ecosystem. It is true that in Constituent Assembly debates, both PD and sedition were held to be the antithesis of the freedom movement. K.M. Munshi argued that “As a matter of fact, the essence of democracy is criticism of government.” It was due to his efforts and the strong persistence of Sardar Bhupinder Singh Mann that the word ‘sedition’ was omitted from the Constitution.
Perhaps the reason for such draconian provisions lies in the fact that except for specialist agencies like the Central Bureau of Investigation (CBI) and the National Investigation Agency (NIA), the home ministry didn’t invest adequate time and resources in strengthening the investigative competence of the police, the forensic capabilities of the labs and the legal acumen of our prosecutors. As such, unless we take a holistic view of the entire gamut of the criminal justice administration system, the temporary provision of PD, introduced by Sardar Vallabhbhai Patel on 25 February 1950 (within a month of the adoption of the Constitution), as well as Article 124A (or its variant) will most likely continue to exist on the statute book.
Sardar Patel on Preventive Detention
Let us look at the sentiment and the rationale behind the first PD legislation in the country. With regard to the sentiment, Sardar Patel told Parliament that he had spent two sleepless nights over the Bill but went on to explain the rationale. He said that the fallouts of Partition and the armed insurgency in Hyderabad (1946-1951) necessitated the need for the very same provisions that had been opposed tooth and nail when the Rowlatt Act was introduced by the British in 1919. It had been dubbed as an Act with “Na vakil, na dalil, na appeal (No counsel, no argument, and no appeal)”.
However, Patel had hoped that the Preventive Detention Act 1950 would be a purely temporary provision. He would be proved wrong soon. The Act gave way to the infamous Maintenance of Internal Security Act 1971 and later, the National Security Act 1980 under Prime Minister Indira Gandhi. What is less talked about is that when Shanti Bhushan was the Law Minister in 1977, the Code of Criminal Procedure was amended to give Preventive Detention powers to District Magistrates and police commissioners. Thus, from colonial times to Independent India till today, every government on Raisina Hill has maintained such provisions.
Jawaharlal Nehru on Sedition
Fourteen months later, on 12 May 1951 after Sardar Patel spoke on the Preventive Detention Bill, Nehru introduced the first amendment to the Constitution. We again saw a clash between sentiment and rationale. Nehru stated: “Now, so far as I am concerned, that particular Section (124A IPC) is highly objectionable and obnoxious, and it should have no place both for practical and historical reasons, if you like, in any body of laws that we might pass. The sooner we get rid of it the better.”
However, his government not only reimposed IPC Section 124A but also strengthened it by adding two expressions — ‘friendly relations with foreign State’ and ‘public order’ — as grounds for imposing ‘reasonable restrictions’ on free speech. The former was directed at Syama Prasad Mookerjee’s campaign to annul Partition, (friendly relations with Pakistan), and the latter against the Communists in Hyderabad during the Telangana Rebellion. Not only that, the first amendment created a Ninth Schedule, which Upendra Baxi, legal scholar, described as a ‘constitutional vault’ because it contained a list of laws that could not be challenged in the courts or subjected to scrutiny by the judiciary.
Legal challenges to IPC Section 124A
It bears recall that as early as 1950, the Supreme Court in the Romesh Thappar vs State of Madras case held that “Criticism of the government exciting disaffection or bad feelings towards it is not to be regarded as a justifying ground for restricting the freedom of expression and of the press unless it is such as to undermine the security of or tend to overthrow the State.” Then-CJI M. Patanjali Shastri cited the Constituent Assembly’s deliberate omission of the word ‘sedition’ from the Constitution for the liberal reading of the law.
Subsequently, the Punjab and Haryana High Court in 1951 and the Allahabad High Court in 1959 declared Section 124A to be unconstitutional. However, in 1962, in the Kedar Nath ruling on sedition, a five-judge Constitution bench overruled the High Courts and upheld the Constitutional validity of the law. But the Supreme Court clarified that unless accompanied by incitement or a call for violence, criticism of the government cannot be labelled ‘sedition’. Successive reports of the Law Commission of India, and even the Supreme Court, have underlined the rampant misuse of the sedition law. The Kedar Nath guidelines and a textual deviation in law put the onus on the police that registers a case to distinguish between a legitimate speech from seditious speech.
As things stand today, the Supreme Court has directed the Centre and states to keep in abeyance all pending trials, appeals, and proceedings with respect to charges framed under Section 124A of the IPC till the Central government fulfils its promise to reconsider and re-examine the provisions already declared unconstitutional by the courts in the UK, Australia, France, Singapore, South Korea, Indonesia, and New Zealand, among others.
Sanjeev Chopra is a historian and Festival Director of Valley of Words. Till recently, he was the Director of the Lal Bahadur Shastri National Academy of Administration. He tweets @ChopraSanjeev. Views are personal.
This article is part of ‘State of the State‘ series that analyses policy, civil services, and governance in India.