Sedition law: Why India should break from Britain’s abusive legacy

Britain’s legacy in India includes abusive laws to suppress any opposition to colonial rule. Chief among those is sedition, the law used by the British to imprison Indian nationalists including Mohandas Gandhi and Bal Gangadhar Tilak. While appearing in court in 1922, Gandhi called the law the “prince among the political sections of the Indian Penal Code designed to suppress the liberty of the citizen”. He was sentenced to six years in prison.

A century later, and 75 years after Independence, this law remains a powerful tool used by the authorities to criminalise dissent and arrest peaceful critics of the government. The Bharatiya Janata Party government led by Prime Minister Narendra Modi is carrying out an escalating crackdown on civil society, targeting activists, journalists, students, academics, members of religious minorities, and peaceful protesters using sedition and other draconian laws.

Parliament should overturn this law in its session that begins on July 18. The Supreme Court already has this law under consideration. If parliament does not act, it will be up to the Supreme Court to rule on the constitutionality of the law and ensure India’s compliance with international human rights law, which the sedition law plainly violates.

Exciting disaffection

India’s sedition law, section 124A of the Indian Penal Code, is absurdly broad, making it a criminal offense to “bring, or attempt to bring, into hatred or contempt, or excite disaffection towards, the Government.” “Disaffection” is defined to include “disloyalty and all feelings of enmity.” The maximum punishment is life in prison.

While the United Kingdom repealed its own sedition law in 2009, in India its use is on the rise.

Sedition cases have increased by 28% under the Modi government, according to a database compiled by news website Article-14. Since 2014, Indian authorities have filed more than 500 sedition cases involving more than 7,000 people. According to Article-14, 149 people have faced sedition charges simply for making remarks about Modi that were considered critical or derogatory.

While the courts ultimately dismiss most sedition cases, the process itself becomes the punishment. In one example, three Kashmiri Muslim students spent nearly six months in jail for allegedly celebrating Pakistan’s win over India in a cricket match in October 2021.

Rampant misuse of sedition led the Supreme Court in May 2022 to effectively halt all use of the law in an interim ruling. The court said the law was “not in tune with the current social milieu, and was intended for a time when this country was under the colonial regime” – and the Modi government agreed. However, the government asked the court for time to “re-examine and reconsider” the law. It did not, however, offer clarity on what that meant or the timeline for its decision.

In a 2015 decision holding unconstitutional a broadly worded provision of India’s Information Technology Act, section 66A, the Supreme Court stated that “[m]ere discussion or even advocacy of a particular cause howsoever unpopular, is at the heart” of the right to freedom of speech, and the government must show a proximate connection between the speech it seeks to restrict and the protection of public order”. The same is true of sedition.

While the Indian Supreme Court upheld the constitutionality of the sedition law in 1962, it did so by ignoring the very language of the law, holding that it must apply only to “acts involving intention or tendency to create disorder, or disturbance of law and order, or incitement to violence”. In the 60 years since, the police have largely ignored that ruling, and have repeatedly arrested peaceful critics of the government. The ineffectiveness of the court’s attempt to limit the reach of the law makes clear that full repeal is essential.

The law also violates article 19 of the International Covenant on Civil and Political Rights, which India ratified in 1979. Under the covenant, restrictions on expression must be narrowly drawn on principles of necessity and proportionality to curtail speech as little as possible.

International experience

Courts in several former British colonies have already ruled that colonial-era sedition laws violate the right to freedom of expression. In 2010, the Constitutional Court in Uganda struck down the law as unconstitutional. In 2018, the Community Court of Justice of the Economic Community of West African States (better known as the ECOWAS Court) held that the offense of sedition in Gambia violated the right to freedom of expression under African regional and international law.

The Court of Appeal in Nigeria, when ruling the sedition law unconstitutional in 1985, said: “Let us not diminish from the freedom gained from our colonial masters by resorting to laws enacted by them to suit their purpose.”

India needs to heed that message.

Linda Lakhdhir is Asia Legal Advisor at Human Rights Watch. Jayshree Bajoria is a senior researcher at Human Rights Watch. They co-authored the 2016 Human Rights Watch report, “Stifling Dissent: The Criminalization of Peaceful Expression in India.”