Towards freedom of expression

Repealing 124A should be seen as a starting point

The Supreme Court’s decision last week to hear a plea challenging the constitutional validity of the sedition law under Section 124A of the Indian Penal Code could mark the start of a belated process to strengthen Indian citizens’ right to freedom of expression. A review was long overdue, given the conspicuous misuse of the sedition law by the central and state governments. Chief Justice of India N V Ramana pertinently asked the government’s legal representatives why a colonial-era law passed to control a subjugated people was needed 75 years after independence. The significance of this statement is that it marks an important step forward from the Supreme Court’s 1962 ruling in the landmark case Kedarnath versus State of Bihar, which upheld the statute but set the limits of its application to criticism that induced discontent and insurrection and incited the public to violence. Yet, even this clear specification has proved capacious enough for successive administrations to arrest any Indian citizen voicing criticism that governments do not like — students, activists, cartoonists, academics, comedians, and journalists.

Justice Ramana’s remarks, together with Supreme Court judge D Y Chandrachud’s comments last month that protest cannot be considered sedition and that this law has no place in a modern democracy, may reflect the judicial fraternity’s thinking that Section 124A has outlived its utility. Several rulings on sedition cases by the Supreme Court and lower courts point in this direction, too. Since the start of the 21st century, several democracies have taken sedition laws off their books — Australia from 2005, New Zealand and Indonesia in 2007, the UK in 2009, for example. It remains on the US statute books but as a dead letter. India remains in the company of some of the world’s more insalubrious regimes to retain and wield sedition laws: Saudi Arabia, Iran, Uzbekistan, and Turkey.

Repealing Section 124A, however, should be the start of an energetic programme to review several other draconian laws that governments have used to stifle dissent. The half-century-old Unlawful Activities (Prevention) Act, or UAPA, is a case in point. The UAPA, the country’s anti-terror law, is particularly egregious because it requires the accused to prove themselves innocent, a situation that makes bail a near impossibility (as the appalling treatment of the late Stan Swamy highlighted) and extends pre-chargesheet custody for 180 days. Again, some lower courts have courageously pointed to the basic flaw in the application of the UAPA in conflating protest with terrorism.

Less noticed but no less ominous is the National Security Act, also a variation of colonial-era laws (including the infamous Rowlatt Act) that allow governments to detain a citizen deemed a threat to national security for up to 12 months or longer if the government finds evidence. This law strips a person of basic rights: To consult a lawyer and to be informed of the reason for her arrest within five days, and gives the government the powers to withhold information in the name of national security. This law has been used to detain people associated with an alleged cow-slaughter case, and a Manipuri journalist for a controversial Facebook post. India would benefit if these laws, too, were read down from the statute books. Doing so would help India, which signed a joint statement supporting freedom of expression at the G7 meeting as recently as June 2021, regain something of its tarnished global reputation.