Presently, the law has been put at abeyance by a three-judge bench of the Supreme Court of India headed by the then Chief Justice of India N V Ramana who had on May 11, 2022 made the relevant order but deferred deciding on its validity on assurance of the Union Government that they would re-examine and reconsider whether the sedition law needs to be retained.

Since the Centre had been misusing the sedition law under Section 124 A of the Indian Penal Code for quite some time, and no amount of criticism from the civil society could stop the BJP-led government at the Centre and States from launching prosecutions against those who happened to oppose their arrogance with overt and covert intentions of manipulating the policies of the country to the cost of general people, the assurance given was just considered an attempt to trick the Supreme Court on issue of reviewing the law. The apprehension has now come to be true, as we can see in the Law Commission’s report.

In the report titled “Usage of the Law of Sedition”, the 22nd Law Commission of India headed by former Chief Justice of the High Court of Karnataka, Justice Ritu Raj Awasthi, has not only recommended retention of the sedition law under section 124 A of the Indian Penal Code (IPC), but also enhancing the penal provision upto 3 years of imprisonment to 7 years, while retaining the other provision punishment of imprisonment for life.

The commission has said that the "repealing Section 124A of IPC on the mere basis that certain countries have done so is essentially turning a blind eye to the glaring ground realities existing in India. … people are at liberty to indulge in healthy and constructive criticism of their government in a democratic set-up but what section 124 A of IPC seeks to penalise is only the pernicious tendency to incite violence or cause public disorder in the guise of exercising right to freedom of speech and expression." It was the reply of the demand and argument that the sedition law must be scraped owing to its colonial legacy.

The recommendation has also added “with a tendency to incite violence or cause public disorder” in the section 124 A of IPC enlarging its scope of application of the present provision. The expression “tendency” has been clarified by the report that it would mean mere inclination to incite violence or cause public disorder rather than proof of actual violence or imminent threat to violence.

It shows that the Modi government’s love for the sedition law remains intact. Even on October 31, 2022, the Centre has sought more time from the Supreme Court to review the colonial provision. Attorney General R Venkataramani requested the SC bench comprising Chief Justice Uday Umesh Lalit and Justices S Ravindra Bhat and Bela M Trivedi that some more time be granted to the Centre as “something may happen in the Winter Session of Parliament”. The top law officer of the government further said that the issue had been under consideration by the authorities concerned and moreover, there was “no reason to worry” in view of the May 11 interim order, which had put the use of the provision on hold.

On such an assurance and request, the SC bench hearing the petitions on the misuse of the sedition law had granted additional time to the Centre to take “appropriate steps” with regard to the reviewing of the colonial-era provision, which means continuation of the interim order putting on hold the contentious sedition law and the consequential registration of FIRs. “In view of the interim directions issued by this court … dated May 11, 2022, every interest and concern stand protected and as such there would be no prejudice to anyone. At his request, we adjourn the matter to the second week of January, 2023,” the bench had said.

Supreme Court has taken the Centre on its face value, but in reality Modi government was in reality trying to find out some clever ways to somehow retain the sedition law, and make it more stringent with widening its scope and ambit, while the bench had directed the ongoing probes, pending trials, and all proceedings under the sedition law to be kept in abeyance across the country and those in jail on sedition charges could approach the court for bail.

The promised review has come in the form of the Law Commission Report that said, “Section 124A needs to be retained in the Indian Penal Code, though certain amendments, as suggested, may be introduced in it by incorporating the ratio decidendi of Kedar Nath Singh v. State of Bihar so as to bring about greater clarity regarding the usage of the provision."

The report has further stated, "The 42nd Report of the Law Commission termed the punishment for Section l24Ato be very 'odd'. It could be either imprisonment for life or imprisonment up to three years only, but nothing in between, with the minimum punishment being only fine. A comparison of the sentences as provided for the offences in Chapter VI of the IPC suggests that there is a glaring disparity in the punishment prescribed for Section 124A. It is, therefore, suggested that the provision be revised to bring it in consonance with the scheme of punishment provided for other offences under Chapter VI. This would allow the Courts greater room to award punishment for a case of sedition in accordance with the scale and gravity of the act committed."

The Commission has also suggested to amend section 154 of the Criminal Procedure Code (CrPC) to incorporate another suggestion regarding FIR. It has suggested that no FIR dealing with Section 124A be registered "unless a police officer, not below the rank of Inspector, conducts a preliminary inquiry and on the basis of the report made by the said police officer the Central Government or the State Government, as the case may be, grants permission for registering a First Information Report."

It should be recalled that the Supreme Court Bench had emphasized that it was concerned about “misuse of the law and lack of accountability of executive and the investigating agencies.” (IPA Service)