Ex-post-facto law
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This article is written by Oishika Banerji of Amity Law School, Kolkata. This article deals with the possible substitutes of the provision of sedition that can be put to use to convict individuals who violate the restrictions provided by Article 19(1)(a) of the Indian Constitution.  

Introduction 

The law of sedition has been enshrined under Section 124A of the Indian Penal Code, 1860. The provision reads as, “Whoever, by words, either spoken or written, or by signs, or by visible representation, or otherwise, brings or attempts to bring into hatred or contempt, or excites or attempts to excite disaffection towards, the Government estab­lished by law in [India], shall be punished with [im­prisonment for life], to which fine may be added, or with impris­onment which may extend to three years, to which fine may be added, or with fine.”  A bare reading of the provision shows that it is very narrow by nature as irrespective of any kind of public disorder taking place, a consequence of hatred, contempt, or dissatisfaction towards the Government of India amounts to sedition within the Indian territory. Therefore, it is to be noted that the offense of sedition has to be perceived keeping in mind the spirit of the Indian Constitution, and not just what has been laid down by the provision. This article aims to provide an explanation about the possible substitutes of Section 124 A of the Indian Penal Code, 1860, and the reasons behind the need for substitution. 

A need for substitution of Section 124A of IPC

In several cases, over the years there has been discussion about the constitutional validity of Section 124 A of the Code of 1806 as the provision acts as a restriction to Article 19(1)(a) of the Indian Constitution which guarantees freedom of speech and expression as one of the fundamental rights available to the Indian citizens. The decision was finally settled in the case of Kedar Nath v. the State of Bihar (1962) where the Supreme Court observed that Article 19(2) of the Constitution provides reasonable restrictions in the interest of the sovereignty, and integrity of India which are applicated to the freedom of speech, and expression, and thus the offense of sedition falls within the reasonable restriction imposed on Article 19(1)(a). The Court further observed that there exists a very thin line between hatred towards the Government and any legitimate political activity carried by the citizens. Therefore, the imposition of Section 124 A must be done cautiously to avoid unreasonable infringement on the freedom of speech and expression of the citizens. 

The Fifth Law Commission of India had also pointed out certain loopholes which are provided below, that often restrict Section 124A from achieving its purpose thereby becoming a detriment for the country’s people:

  1. Section 124A of the Indian Penal Code, 1860 only concerns hatred, contempt, or dissatisfaction towards the Government of India thereby leaving behind construction to public order which must be the utmost ingredient of the offense of sedition. 
  2. The deterrent provided by Section 124A can be confusing in nature. This is because there lies a range of punishment which can be either as harsh as life imprisonment or as light as imprisonment for a term of three years. This deterrent composition is indeed very odd and can create hurdles during implementation. 
  3. Section 124A of the Code of 1860 only talks about hatred, contempt, or dissatisfaction towards the Government of India leaving behind the law-making body which is the legislature followed by the Indian Constitution, and ignorance of both these democratic necessities subsequently shadows the hindrance on the administration of justice in the country. 

Taking these grounds into consideration, it can be said that acquiring knowledge about possible substitutes of Section 124 A of the Indian Penal Code, 1860 stands necessary. 

The possible alternatives of Section 124A of IPC

In this article, we will take an account of three possible substitutes of the sedition provision of the Indian Penal Code, 1860 namely, the Unlawful Activities (Prevention) Act, 1967, National Security Act, 1980, and existing Public Safety Acts. 

National Security Act, 1980

The National Security Act, 1980 is a substantive preventive detention law by its very nature and extends to the whole of India. The term preventive detention symbolizes detention of a person prior to his commission of an offense on the basis of an apprehension that the same is supposed to be committed,  in order to avoid the offense from taking place in the future. Preventive detention falls within the ambit of reasonable restriction under Article 22(3)(b) of the Constitution of India, 1950, and therefore needs to be carried out only in accordance with laws made by the Indian Parliament. It is also to be noted that Article 22(4) of the Constitution mandates the detention of an individual on grounds of preventive detention for a period of three months only. 

There are eighteen provisions in the National Security Act, 1980 that function with the underlying principle of preventive detention. Section 2(a) read with Section 3 of the Act of 1980 provides that the appropriate government which includes both the Central Government and the State Governments for the purpose of this Act will have the power to make orders for detaining certain persons. The circumstances which will initiate the invocation of Section 3 are provided hereunder:

  1. Act prejudicial to the security, and defense of India; or
  2. Regulating a foreigner living in India for a prolonged period; 
  3. Causing prejudice in the maintenance of public order.

It is ideal to take a pause while discussing Section 3 of the Act as it fulfills one of the loopholes existing in Section 124 A of the Indian Penal Code, 1860 that is “any manner in which prejudice is caused in maintaining public order”.  While reading Section 3 of the Act, Section 5A of the legislation must not be ignored as the provision ensures restriction of misuse of power vested on the appropriate government by the former provision. Section 5A, which provides that grounds for detention of an individual are severable, makes it mandatory under clause (b) of the Section for the appropriate government to abide by it. 

Further, the Act vests the procedural responsibility that is the execution of the orders on detention upon the Code of Criminal Procedure, 1973 as have been provided under Section 4 of the statute. Section 8 of the Act of 1980 which makes it necessary for the authority to process the detention of an individual to let the person know about the whereabouts of the detention, draws special attention. The provision also obligates the authority to afford an opportunity to the detained individual to make a representation against the appropriate government’s order, as early as possible. Both Section 4, and 8 of the Act can be taken up for a discussion together as Section 8 aligns itself according to the procedural rules of the Code of Criminal Procedure, 1973 which also ensures protection of the rights of the arrested person.  

The Act lays down provisions that facilitate the setting up of Advisory Boards for the appropriate government to consult before, or after detaining a person. The role of the Advisory Boards is to ascertain whether the detention of an individual has been carried out on a justified ground taking into concern the Principles of Natural Justice, and in accordance with the procedure provided by the Code of Criminal Procedure, 1973, or not. In a way, the provisions on Advisory Boards behave as a check and balance to Section 3, and Section 5A of the Act of 1980. It is noteworthy to mention that Section 14A of the Act lays down certain scenarios in which it occurs that the detention of a person can be made for a longer-term than have been provided by the Act and without reference from the Advisory Boards. But in such scenarios, the period for the imprisonment of an individual must not exceed six months. 

The Act vests importance on good faith under Section 16 thereby restricting detention of an individual if actions of the same are meant to be on grounds of good faith. With a prospective operation as enshrined under Section 17 of the Act, the National Security Act, 1980 has been prey to certain drawbacks which are presented hereunder; 

  • There has been no record of the number of detentions made under this Act which puts a question on the efficiency, and implementation of the Act. 
  • Governments’ have often used the Act as an extra-judicial power which defeats the purpose of the Act.
  • The Act, being promulgated several years ago needs modifications to keep a hold on arbitrary functioning. 

Unlawful Activities (Prevention) Act, 1967

An Act that has received much of the spotlight over the years in India is the anti-terrorism law recognized by the name of the Unlawful Activities (Prevention) Act, 1967. Formulated with the aim of preserving, and maintaining the sovereignty, and integrity of India, the Act has been subjected to several amendments in order to avoid losing the purpose it is meant to serve. It implements the reasonable restrictions imposed on the following fundamental rights:

  1. Freedom of Speech, and Expression;
  2. Right to form an association, and unions;
  3. Right to assembly peacefully.

The UAPA Act, 1967 defines “unlawful activity” under Section 2(1)(o) as, “in relation to an individual or association, means any action taken by such individual or association (whether by committing an act or by words, either spoken or written or by signs or by visible representation or otherwise),

(i) which is intended, or supports any claim, to bring about, on any ground whatsoever, the cession of a part of the territory of India or the secession of a part of the territory of India from the Union, or which incites any individual or group of individuals to bring about such cession or secession; or

(ii) which disclaims, questions, disrupts, or is intended to disrupt the sovereignty and territorial integrity of India; or

(iii) which causes or is intended to cause disaffection against India.”

This definition is wide enough to incorporate several acts that are not reasonable by nature and can be threatening to the country at large. 

One cannot ignore the fact that this Act is an over-used tool by the government to threaten the citizens of the country by unnecessarily curbing their fundamental rights to free speech and expression along with the human rights that every individual has been vested with. The latest reform that has been brought to this Act is by the Unlawful Activities (Prevention) Amendment Act, 2019 (UAPA, 2019) which provides a divergent connotation to the term “terrorist” defined in the Act along with which it gives immense power in the hands of the Central Government to declare any individual as a terrorist. More than helping, this legislation proves to be detrimental to the integrity of the country. The different grounds by which this legislation proves to be a terrorist in itself have been listed hereunder:

  1. Section 13 of the UAPA, 1967 was invoked by the police force of Jammu & Kashmir during the imposition of the ban on the internet, on the individuals who had used social media thereby infringing the restrictions. Anyway, accessing social media was in no way possessing any threat to the security of the democratic country. 
  2. The Act allows the detention of a person booked under it to be behind the bars for a period of six months without filing a charge sheet. This aspect of the Act also makes it against the fundamentals of the Code of Criminal Procedure, 1973 that acts as a procedural law for the Act. 
  3. As the Act provides discretionary powers to the government, it was imposed on journalists covering the Covid-19 pandemic on grounds that their news coverage can be invoking the general public to act against the government. 
  4. Amidst the CAA protest, the Act was used to put students belonging to universities behind the bars on grounds of their dissent on the government’s decision. Students were charged with inciting communal violence among the public at large. 

Public Safety Acts

Just like the National Security Act, 1980, any kind of Public Safety Act in the country will also be a preventive detention law. When it comes to the discussion regarding Public Safety Acts, the Jammu & Kashmir Public Safety Act (PSA), 1978 needs a special reference. Individuals under this Act are taken into custody when any of their acts prove to be prejudicial to the state’s security, and maintenance of public order. Walking in the same direction as the National Security Act, 1980, the Act of 1978 is ornamented with certain as have been provided below:

  1. Detention of any individual under this Act need not follow the procedure of the Code of Criminal Procedure, 1973 which means the production of the individual before the magistrate within 24 hours of his detention does not stand mandatory.
  2. Detention under the Act can be made without any specific charge and formal trial.
  3. The person who has been detained under the Act will not be vested with the right to file a bail application. 
  4. The Act does not distinguish between major, and minor offenses.
  5. The Act provides limited legal remedies to the person detained. 

With recent amendments of the Act, Section 14 has been introduced as a provision to allow the formation of advisory committees to handle matters of detention under the Act. Much in debate due to the restrictive nature of the Act, the Supreme Court of India has repeatedly warned against the rare use of the legislation to avoid injustice from taking place. 

Conclusion 

As we come to the end of this article, what we can infer from it is that any substitute of Section 124 A of the Indian Penal Code, 1860, will come with its own set of pros and cons. The legislation discussed above cannot be said to be wrong completely, instead, it is the implementation of the same that decides whether the Act is beneficial, or detrimental. It is therefore the sole responsibility of the three organs of the government of India to ensure the balance between safeguarding the rights available to the citizens of the nation, and the reasonable restriction imposed on the same to ensure maintenance of the sovereignty and the integrity of the largest democracy of this world.  

References

  1. https://www.jurist.org/commentary/2020/05/agarwal-sharma-national-security-act-1980/
  2. https://www.jurist.org/commentary/2020/06/bhandari-pokhriyal-uapa-free-speech/
  3. https://cjp.org.in/ready-reckoner-to-the-unlawful-activities-prevention-act-1967/
  4. https://www.livelaw.in/columns/sedition-ipc-124a-article-19-1-a-of-the-indian-constitution-independence-of-the-judiciary-178280

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