The decision of the Supreme Court to get Section 124 A of the Indian Penal Code (IPC), also known as the sedition law, examined by a bench of at least five judges is welcome. The court’s decision comes despite the fact that the whole of IPC is under the process of being rewritten and that the government wanted the review to be halted for now.

The apex court had in 2022 ordered that the Raj-era law be put on hold and asked all agencies of the Union and state governments to desist from filing cases based on it, as it felt that it was “not in tune with the current social milieu” and that “it will be appropriate not to continue the usage of the provision of law by the governments”.

The statement reflected the judicial view of a law that was made to preserve and protect an alien government and its interests on Indian soil, and that it naturally does not square with the demands of the citizens of a republic who have now got the power to elect their government.

The attorney-general had this year told the court, which was in the process of reviewing the sedition law that was upheld by a five-member bench in 1962,   that the government was keen on pushing legal reforms and that the legislative process it had initiated to review the sedition law was in the final stages.

However, a substantial section of the legal circle is of the opinion that the draft of the Bharatiya Nyay Samhita, which will replace the IPC, has expanded the scope of the sedition law and made punishment harsher. This hardly reflects a government that intends to introduce reforms in law reflecting the times.

Perhaps the government has gone by the opinion of the Law Commission which, contrary to the opinion of the apex court, wanted the law to stay as repealing it “can have serious adverse ramifications for the security and integrity of the country”. The commission, in fact, wanted the legal provision to have “more clarity in the interpretation, understanding and usage”.

Hence the draft of the new law. As per Section 150 of the draft BNS, the accused citizen is pitted not against “the government established by law in India” but the “sovereignty or unity and integrity of India”. The government can very well argue that it has vanished from the scene as a complainant and placed the country in its stead and that acts against it are no more prosecuted. However, given the way government agencies misinterpret and misuse the law, the wider the scope of it, the more inimical it is to the citizen. A person who criticises a system in the country can be hauled up for sedition; one need not necessarily criticise the government.  

As recommended by the Law Commission, the draft, while retaining life imprisonment, has enhanced the minimum punishment from three years to seven years. It has also done away with the discretion that was available to the court to release one with a fine.

Democratic constitutions put the citizen at their core, not the state. Any law that criminalises expressions of dissent against the government or the state turns the very idea of democracy on its head. It is important that the apex court examines the contours of the sedition law in whatever form and makes its opinion known so that the government can take the cue and act before finalising the new law.