The colonial origins and constitutionality of ‘sedition’

The Daily Guardian

The law of sedition, specifically Section 124A of the Indian Penal Code (IPC), has been the subject of intense debate over the last few years. By and large, the criticism against the existence of the provision has been that it is a colonial instrument which is way past its shelf life, and that although the framers of the Constitution consciously rejected the use of the word “sedition” in the Constitution, sedition remains in the IPC. In short, the argument against the provision is that its presence in the IPC is at loggerheads with the express intent of the Constituent Assembly to do away with it.

Based on my reading of (a) the Constituent Assembly Debates, (b) the language of Article 19 (Article 13 of the Draft Constitution 1948), and (c) the history of Section 124A and its judicial treatment, I am unable to come to the conclusion that the opposition to the presence of Section 124A is historically or constitutionally sound. This is apart from the need for such a provision, which is a different issue altogether. I hope to address these issues in this piece and the next few pieces.

A good document to read in order to understand the history of Section 124A as well as the treatment of the subject in the UK, the USA and Australia is a 35-page Consultation Paper on Sedition prepared and published by the Law Commission of India on August 30, 2018. The issue appears to have been dealt with by the Law Commission previously in its 39th Report in 1968, the 42nd and 43rd Reports in 1971 and the 267th Report in 2017.

In Bharat, a provision relating to sedition was first included as Section 113 of the Draft Penal Code of 1837 prepared by the First Pre-Independence Law Commission under the Chairmanship of Thomas Babington Macaulay. The Commission recommended, among other things, codification of the Penal Code and the Criminal Procedure Code. However, the provision was omitted by oversight when the Indian Penal Code was finally promulgated in 1860. That the absence of sedition as an offence in the IPC of 1860 was due to oversight, and not deliberate, does not appear to be a matter of debate.

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