Archaic laws can damage the fabric of democracy

The Indian Penal Code, introduced by the British in 1860, is said to be the oldest of its kind still in force anywhere in the world. This bit of information may be of interest to students of legal history. But it is not something worthy of celebration.

A legal system must keep pace with changes in the society. The 161 years since the IPC came into force saw India’s transformation from a colony to a sovereign republic with a Constitution committed to democracy and socialism. Is the IPC a fit instrument to meet the present needs?

The British drew up the IPC after overcoming a strong challenge from their Indian soldiers and dissatisfied local rulers. Colonial historians recorded the event as a mutiny by sepoys. Indians named it the First War of Independence.

An immediate objective of the new penal system was to protect colonial interests. This is not to suggest that it was intrinsically bad. It included many features of English law of the time and was, in fact, a vast improvement on the caste-centric system that prevailed in many parts of the subcontinent.

According to historians, the Buddhist Maura empire had a reasonably just legal system. The Brahmin Sunga dynasty that followed introduced a new code named Manusmriti. It exempted Brahmins from capital punishment.

If a Brahmin commits murder, the ruler must let him leave the kingdom, it said. Manusmriti still has a lot of admirers. At the time of Independence the Rashtriya Swayamsevak  Sangh, which champions the Hindu cause, wanted it to be adopted as India’s Constitution.    

Britain’s legal system has undergone big changes in recent years. In 2009, the country scrapped the sedition law, saying it was inconsistent with freedom of thought and expression, which became a protected right under the 1998 Human Rights Act.    

Freedom of speech and expression is a fundamental right of Indian citizens under the 1950 Constitution. Yet the sedition provision the British put in the IPC remains and is used more widely than ever.

The colonial regime had invoked the sedition law against several freedom-fighters, including Gandhi and Bal Gangadhar Tilak. The governments at the Centre and in the states now use it against their political opponents, human rights activists and media persons.

Even private players invoke it. Members of the ruling Bhaaratiya Janata Party routinely file complaints levelling sedition charges against the party’s critics. The rate of conviction in sedition cases is low. This, however, can give little comfort to the hapless victims. They must go through a long, costly and vexatious legal process before being pronounced not guilty.  

As successor to the colonial regime, the government of free India had inherited all the laws it had promulgated. The Constitution saved the provisions of these laws which were not in conflict with its own provisions.

In 1962, the Supreme Court, in the Kedarnath case, upheld the validity of Section 124A of the IPC which deals with sedition. It, however, restricted the scope of the section.

A citizen has the right to say or write whatever he likes about the government or its measures by way of criticism so long as he does not incite people to violence against the government or act with the intention of creating public disorder, it said.

But the police continued to register cases even against those who only exercised the right to freedom of speech and expression. There has been a spurt in sedition cases across the country in recent years. According to the National Crime Records Bureau,93 sedition cases were filed in 2019. This was 165 per cent more than in 2016.

Signs, visible representations, or words, spoken or written, that can cause hatred or contempt, or excite or attempt to excite disaffection towards the government come within the definition of sedition in the IPC.

Both Central and state governments have shown scant regard for the apex court’s ruling that there can be no sedition if there was no intent to incite violence. Last year police filed a sedition case against noted TV journalist Vinod Dua after he uploaded on YouTube a video criticising the Narendra Modi administration’s Covid lockdown. The Supreme Court quickly quashed the case.

It is not often that one charged with sedition gets relief so fast. At the Supreme Court, Chief Justice NV Ramana’s bench is now hearing a set of petitions challenging the constitutional validity of the IPC provision relating to sedition.

Last week, during the proceedings, Justice Ramana asked Attorney General KK Venugopal why, after 75 years of Independence, the government needed a colonial law that had been used against Gandhi and Tilak. Venugopal suggested that instead of striking down the IPC provision “guidelines need to be set out so that section meets its legal purpose”.

His response tacitly acknowledged complaints of misuse of the law. He offered no explanation for the authorities’ failure to observe the safeguards the court laid down six decades ago.

Two other petitions challenging the sedition law, filed by Sashi Kumar, Chairman of Asian College of Journalism, and Arun Shourie, who is a former journalist as well as a former BJP minister, are before other benches of the Supreme Court.

The Chief Justice is expected to constitute a Constitution Bench to hear all the petitions together. Its verdict will hopefully settle the issue of the archaic sedition law.

But the sedition law is not the only anachronistic provision of Indian law. According to a newspaper report, Home Minister Amit Shah has asked the Bureau of Police Research and Development to examine the issue of overhaul of the IPC as well as the Code of Criminal Procedure, which too originated in the colonial period. Two expert committees are said to have been constituted for the purpose.

Reform of penal laws is not a matter that can be left to the police and experts picked by the government   to decide in secrecy. It must be done in a transparent manner.  

The Central government’s position on the sedition provision, outlined by its top law officer in the apex court, does not inspire much confidence in its approach in this matter.