Amid a clamour for repeal of the law on sedition, Law Commission chairman Justice Ritu Raj Awasthi on June 27 said the present situation from Kashmir to Kerala and Punjab to the North-East makes it must to retain the law to safeguard the "unity and integrity of India".
Defending the panel's recommendation to retain the law, which is at present under abeyance following directions of the Supreme Court issued in May last year, he said enough safeguards have been proposed to prevent its misuse.
In an exclusive interview, he told PTI that special laws such as the Unlawful Activities (Prevention) Act and the National Security Act operate in different fields and do not cover the offence of sedition and therefore, the specific law on sedition needed to be there too.
Justice Awasthi asserted that while considering the usage of the law on sedition the panel found that “the present situation right from Kashmir to Kerala and Punjab to the North-East is such that the law on sedition is necessary to safeguard the unity and integrity of India”.
He also said that the sedition law being a colonial legacy was not a valid ground for its repeal and several countries, including the U.S., Canada, Australia and Germany, have their own such laws.
In its report submitted to the government last month, the 22nd Law Commission headed by Justice Awasthi supported retaining section 124A of the Indian Penal Code (IPC) with safeguards to prevent its misuse.
The recommendation triggered a political uproar with several opposition parties alleging that it was an attempt to stifle dissent and voices against the ruling party ahead of the Lok Sabha elections next year.
While the government said it will take an “informed and reasoned” decision on the Law Commission report after consulting all stakeholders and that the recommendations were “persuasive” but not binding, the Congress has alleged that the government wants to make the sedition law more “draconian”.
Referring to the "procedural safeguards" recommended by the commission, Justice Awasthi told PTI that the preliminary inquiry will be held by a police officer of the rank of inspector or above.
The inquiry will be done within seven days from the occurrence of the incident and the preliminary inquiry report will be submitted to the competent government authority for permission for lodging of FIR in this regard, he added.
“On the basis of the preliminary report, if the competent government authority finds any cogent evidence with regard to commissioning of the offence of sedition, it may grant permission. It is only after the grant of permission that the FIR under Section 124 A of the IPC shall be lodged,” he said.
“We have also recommended that the central government may issue guidelines which are to be followed in case of commission of any such offence and the said guidelines may clarify as to under what circumstances the said offence was committed,” the former chief justice of the Karnataka High Court said.
He also said that the law panel has not made any recommendation for enhancement of punishment "as such".
According to existing provision of section 124A, punishment can be up to three years imprisonment, with or without fine, which may go up to imprisonment for life, with or without fine.
“We have found that there is a big gap in the punishment provision as the punishment of up to three years imprisonment or a punishment of life imprisonment with or without fine may be given.
“We found this gap to be very odd and, therefore, we have said that this punishment of up to three years with or without fine maybe increased to seven years with or without fine,” he explained.
It will give discretion to the courts while imposing the punishment, he said, adding that if the courts find that the offence of sedition is proved and feel that the punishment of three years would be less, but the punishment of life in jail would be very severe, “it will have the discretion to give the punishment up to seven years with or without fine”.
“In fact, if you see the punishments provided for various offences under IPC, you will not find any such big gap. The Law Commission had earlier too considered this issue and made its recommendations on the same terms in its previous two reports,” he pointed out.
He said the panel considered that the special Acts such as the Unlawful Activities (Prevention) Act and the National Security Act operate in different fields and do not cover the offence of sedition, and the provisions of the law on sedition are necessary to be retained in the IPC.
“We have held that the law on sedition is a reasonable restriction under Article 19 (2) of the Constitution of India,” he pointed out.
Justice Awasthi felt that sedition being a colonial legacy is "not a valid ground for its repeal".
“The realities differ in every jurisdiction. Even countries such as the United States, Canada, Australia, Germany, the Netherlands, Ireland, Spain, Norway and Malaysia have the law on sedition in their country in one form or the other,” he said.
So far as the United Kingdom is concerned, the Law Commission of the UK had recommended the repeal of law on sedition in 1977.
“But the law on sedition was repealed only in 2009 only when the sufficient range of other provisions to deal with sedition-like offences were enacted and the threat of secessionist subversive activities from the Irish Republican Army (IRA) ceased to exist following the signing of the Good Friday Agreement in 1998.
“So, even the UK has sufficient safeguard to deal with the offences affecting the security and integrity of their State,” he explained.
In order to provide clarity to section 124A, the panel has suggested to add words "with a tendency to incite violence or cause public disorder". It has been borrowed from the judgment of the Constitution bench of the Supreme Court in the case of Kedarnath Singh.
The Kedarnath Singh judgment still holds the field and is the settled proposition of law, he said.
Justice Awasthi said the panel has also suggested to add one explanation defining the expression 'tendency'.
