Friday, December 8, 2023

How Not To Pursue Law Reform

The Report recommends against the total repeal of the sedition law and is in favour of retaining and enlarging the offence. It could have thought of amendments to terror laws that would study the distinction between anti-State and constitutionally sincere criticism of governance.

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By Prof Upendra Baxi

Union Law Minister Arjun Ram Meghwal recently said that the recommendations made by the Law Commission of India (LCI) in its 278th Report on the “usage” of  the law on sedition are “persuasive and not binding”. At one level, the learned minister was only stating the legal obvious; the recommendations of a non-statutory body are never binding. But no LCI Report, as far as I know, has been greeted this way so far. 

Perhaps, the reason for this was that the matter was sub judice, the constitutionality of Section 124A of the IPC having been challenged before the Supreme Court in S.G. Vombatkere vs Union of India1 where “concerns are raised about its application and abuse for “purposes not intended by law”.

The Union of India (UoI) had assured the Court that it may not “invest its valuable time” and itself will re-examine Section 124A and revert to the Court. The Court, which had been mulling over a reference to a larger Bench of seven justices, yielded to this request and in a widely welcomed order (May 11, 2022) provided interim relief by directing that registration of any FIR or coercive measures may be taken, while suspending all continuing investigations concerning Section 124A. Further, it also directed that all pending trials, appeals, and proceedings be kept in abeyance. One is altogether at a loss to grasp where was the “urgency”of the matter [para 1:3] in a “subject of continuous and ceaseless debate” [Para 5:4].

The UoI apparently had other pressing matters than return to the Court with its submissions. And even the 22nd Law Commission was appointed only on November 7, 2022, after the term of the 21st LCI had expired in 2018. Even then, the LCI could only hold consultations with a few stakeholders and the Union law minister now wishes to hold wider consultations than the LCI had.

The problem of “urgency” of law reform seems only self-created by the LCI. In the seven months to prepare and submit the Report, did the temporary condition of seditionless India that is Bharat cause any major setbacks to her internal security? That should have been enough for the LCI to observe somewhat larger periods of gestation considered normal for any well considered law reform report.  

Besides, on June 14, 2013, a “comprehensive review of the Criminal Laws” was urged by UOI, but the LCI submitted a few “piecemeal” reports: “Report Nos. 264, 267, 268, 271, 273 and 277, covering various aspects relating to the Criminal Justice System” (Para I:2). Why so? This not merely raises the question of fidelity to actual terms of reference, but a more fundamental question and concern was the fragmentation of law reform. If we are ever to move from merely the administration of criminal justice to a criminal justice system2, we need to have a comprehensive outlook. That is what the UOI wanted and needed (and so do citizens), but they did not get it even from the LCI!

Chapter Six and Seven respectively state: “Threats to India’s Internal Security” and “Alleged Misuse of Section 124a of the IPC”. As to the former, no honest citizen would deny the logic of human right to collective security against armed opposition groups, and counter-insurgency measures. However, the question always remains alive (besides comparative law and jurisprudence, international customary right state of self-defense), in the art of judgment concerning the nature and scope of counter-insurgency violence and accountability for use of surplus force (adjudged as unreasonable and disproportionate force).

Broadly, the Report supports the retention of the offence of sedition, enhancement of imprisonment for seven years to life imprisonment, with or without the fine, direct incorporation of the definition of offence the judicially defined criterion of the tendency to incite violence or a breach of public order. It recognizes a considerable overlap among “terror”, “security” and “sedition” laws, but it also maintains that only “Section 124A of IPC seeks to prevent the violent, illegal, and unconstitutional overthrow of a democratically elected government established by law” [ Para 9:7]. While it is legitimate to maintain some distinction between offences against the State and those against the government, what remains objectionable is that the criminal justice process, power and practice investigates and indicts people with ingredients of all the security and anti-terror offences and is subjected to long pre-trial detention. The “chilling effect” of charges of sedition on dissent from honest criticism of government (which is protected) is yet to be studied and measured.3 The task is difficult but not impossible and crucial for any honest citizen guide to crime control.

It is not the normative distinction which is questioned but the institutional add-ons in the framing of a chargesheet. The LCI does not examine the idea, often repeated, that the process is the punishment. But it is suddenly seized with the care of the victims of the process when it says “in the absence of a provision like Section 124A of IPC, any expression that incites violence against the Government would invariably be tried under the special laws and anti-terror legislations, which contain much more stringent provisions to deal with the accuse” (Para 9:8). The LCI, instead, could have thought, but does not, of proposing amendments to security and terror laws that would more specifically distinguish between anti-state action and constitutionally recognized criticism and non-violent dissent. 

No one should be opposed to decent and humane practices of jurisdiction of suspicion but a colonial intent and practice is by definition devoid of these democratic virtues. What is quite offensive in the Report is the observation that the “entire framework of the Indian legal system is a colonial legacy” [Para 9:1]. Assume that it is true, counterfactually though; the question is should the LCI have thus gone so far to justify retaining the offence of sedition, and even to increase its penal sway (seven years or like imprisonment? [Para 10:C]. Justice Dr. Durga Das Basu has long repudiated the idea that the Constitution of India is a replica of the Government of India Act, 1935 in a capital font!!4 (It is indeed remarkable that all of India state law reformers subscribe to this viewpoint.)

Surely, those who regard the offences an obnoxious relic of colonialism wish to say that the colonial law is an emissary of the Empire that was bereft of the very idea of emancipatory interest. But Article 13 of the Constitution now stands as a bulwark against any effective residues of colonialism by making void all existing laws found inconsistent with fundamental rights

The LCI, in its manifest enthusiasm for retaining sedition as an offence, emphasises, time and again, the power to prescribe “reasonable restrictions” on the rights guaranteed by Part III of the Constitution. But it does not invoke reasonableness as nowadays understood by the Supreme Court of India through the strict proportionality standard.5 Indeed, it would not be erroneous now to say that a person has an Article 21 right against arbitrary restriction of Part III rights as expounded by Kesava­nanda Bharati and subsequently by  social action litigation.

Reasons of space forbid discussion of among others constitutional debates concerning sedition [Chapter 3], or foreign legislative patterns and judicial precedents [Chapter 8], both of which have justified the LCI conclusions and recommendations. Suffice it to say that these aspects could have benefitted with a closer attention to the other side. I know that an LCI report is not a judicial judgment, but neither should it be a piece of sustained advocacy of perspective or position. Nor does the Report give us any grounds for the belief that demonstrable abuse of power to prosecute for the offence of sedition will yield a slew of any further directions, which have been judicially issued by the Supreme Court and High Courts.

The Report again illustrates that, howsoever we wish otherwise, the role of the Law Commission is neither that of a statutory body nor a constitutional authority; it has been that way since the inception of the Constitution. The legitimacy of the LCI lies in its great legacy of unhurried juristic analyses, wise and will-crafted counsel, and a steadfast awareness that it is always sculpting the future of Indian law under the Constitution. 

—The author is an internationally-renowned law scholar, an acclaimed teacher and a well-known writer


1 (2022) 7 SCC 433].

2 See, Upendra Baxi, NHRC “Human Rights in the Administration of Justice: The Concept of Fair Trial”, Journal of Human Rights Commission of India, 19:1-22 (2000).

3 See, Pamela Philipose, “Backstory: Supreme Court’s Observations on Sedition, Journalism Welcome But Don’t Go Far Enough”, Wire, June 5, 2021:…. See also,  Gautam Bhatia, “The Nine Lives of Sedition Law”, The Mint January 24, 2026.

4 As amply illustrated in his earlier work now summated in Durga Das Basu, Limited Government and Judicial Review, 473 (Gurgaon, Haryana, India: LexisNexis; Ishwara Bhat, ed., 2016).

5 See, Upendra Baxi, “Enlarging the Core Values: Re-Structuring Proportionality?” India Legal, June 23, 2023.

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