Note: We are a group of former civil servants of the All India and Central Services who have worked with the Central and State Governments in the course of our careers. Our group has no affiliation with any political party, and we, as its members, believe in impartiality, neutrality and commitment to the Constitution of India.

On May 11, 2022, a chorus of appreciation greeted the Supreme Court's interim orders on a batch of cases which had challenged the constitutionality of the sedition provision contained in Section 124A of the Indian Penal Code (IPC).

The Supreme Court's order was an interim one, viz. to keep in abeyance this section and all related pending trials, appeals and proceedings until further orders. While we would, like others, wish to applaud this decision of the Supreme Court, we feel that, at present, it deserves only a muted cheer.

The Supreme Court's order, inasmuch as it results in immediate relief against arrest, investigation or under-trial detention under Section 124A, is certainly laudable (provided it does not adversely affect the persons already charged). Not so laudable is the impression it gives that the suspension is a response to the union government's statement that it is reviewing Section 124A and considering its revision and reform.

Review and revision by the executive cannot be a substitute for judicial determination of the constitutional limits of the power of the executive to restrict freedom of speech and expression. It is important for the Supreme Court not to get sidetracked by the executive and instead to answer the fundamental issue raised by the petitioners, viz. is Section 124A of the IPC constitutionally valid?

Section 124A of the IPC is certainly a strange provision to have in a democracy. It criminalizes the feelings of dislike, contempt and disaffection towards "the government established by law in India", even where such feelings are not linked to any violent, illegal or criminal act.

Disaffection and contempt for the government of the day are feelings through which democratic republics are born. Such feelings are considered criminal only in autocracies. Where the government of the day can be, and is, changed through the electoral process, it can surely not be a criminal offence for any citizen to merely harbour and express feelings of disaffection, etc. towards the government.

In the words of Mahatma Gandhi: "Affection cannot be manufactured or regulated by law. If one has no affection for a person or system, one should be free to give the fullest expression to his disaffection, so long as he does not contemplate, promote, or incite to violence."

Yet this disaffection is what Section 124A treats as criminal. Sixty years ago, in Kedar Nath Singh vs. State of Bihar, a five-judge bench of the Supreme Court upheld Section 124A IPC, but qualified their decision as follows:

. . . we propose to limit [the] operation [of Section 124A] only to such activities …. involving incitement to violence or intention or tendency to create public disorder or cause disturbance of public peace.

This limiting of Section 124A to activities which involve incitement to violence or public disorder has, however, been by and large ignored in practice by the police and by the courts. As against the thousands of cases charged by the police under Section 124A and similar draconian provisions/laws, the low rate of conviction casts serious doubt about the genuineness of claims made during investigation and prosecution. It shows that the real purpose of such laws is to provide autocratic rulers a powerful weapon to suppress their rivals and control public opinion.

However, whether or not Section 124A is finally deleted or altered, it will make little difference to the common citizen insofar as freedom of speech and expression as spelt out in Article 19(1) of the Constitution is concerned. This is because, apart from Section 124A of the IPC, there are several other provisions in the IPC and other Acts which shackle this fundamental right of citizens and leave them open to arbitrary arrest and prosecution by the government.

The only way that the citizen's right to freedom of speech and expression can be protected is if the Supreme Court examines Article 19 under the "basic structure of the Constitution" principle with reference to all existing laws and provisions that put curbs on this freedom.

The armoury of arbitrary weapons used to suppress dissent and opposition and control the free formation of public opinion has expanded over the years to include a number of offences similar to those under Section 124A.

Prominent amongst these offences are Section 153A of the IPC (promoting enmity between different groups on ground of religion, race, place of birth, etc.), Section 153B (imputations, assertions prejudicial to national integration), Section 505 (statements conducive to public mischief) and Section 505(2) (statements creating or promoting enmity, hatred or ill-will between classes).

These provisions are today widely and routinely misused by the police and their political masters with the same objective as in the case of Section 124A.

Over the years, slowly and surreptitiously, the substance of the offence of sedition has been "snuck" into the Unlawful Activities (Prevention) Act, 1967 (UAPA), defined more elaborately, and with more draconian consequences, than in Section 124A. Significantly, no political party is blameless in this regard and governments of all political complexions have been trampling upon human rights and the freedom of expression

Section 13(1) of the UAPA states that "Whoever: (a) takes part in or commits, or (b) advocates, abets, advises or incites the commission of, any unlawful activity…." shall be punishable with imprisonment for a term which may extend to seven years. "Unlawful activity" as defined under Section 2(1)(o)(iii) of the UAPA is very similar to the definition of sedition contained in Sec 124A IPC.

If Section 124A of the IPC is held by the court to be unconstitutional, because speech and expression that merely create disaffection are protected (and not prohibited) under Article 19(1), Section 2(1)(o)(iii) of the UAPA will also need to be amended to delete elements imported from Section 124A, viz. the criminalization of speech and expression which is not an integral part of any violent, illegal, criminal act. Deletion of one, while retaining the other, would be irrational.

Deleting Section 124A from the IPC, while retaining criminalization of "unlawful activities" under the UAPA, will give substantial political advantage to the union government and the party in power at the national level. Currently, state governments are free to prosecute persons for offences under the IPC, including for sedition under Section 124A. No permission of the union government is required.

States ruled by political parties other than that at the national level sometimes use Section 124A to prosecute supporters of the national ruling party for sedition (as recently happened in Maharashtra). The ruling party at the union level is powerless to prevent such prosecution. The UAPA, on the other hand, vests no powers with the state governments. It provides that no court shall take cognizance of any offence of unlawful activity without the previous sanction of the Central Government.

Deleting Section 124A of the IPC will mean that the power to prosecute those who promote unfavourable opinions against the government will rest solely with the union government. This provides a major incentive for the union government to delete Section 124A under the pretext of protecting human rights while in reality strengthening its ability to suppress liberty in an even more draconian manner.

Given that no democracy can exist without freedom of speech and expression, including the right to promote opinions unfavourable to the government, the Supreme Court should use this opportunity to declare an overarching 'basic structure principle' of the Constitution protecting freedom of speech and expression including the reasonable restrictions mentioned in Article 19(2), so that government interference with individual freedom of speech and expression can be prevented.

In doing so, the Court should hew to the principle that any permissible restriction on speech and expression must be only against speech or expression that is likely to result in imminent violence or restricts the freedom of speech and expression of others.