On May 11, 2022, the Supreme a three-judge bench of the Supreme Court of India headed by the then Chief Justice of India N V Ramana had just stopped the application of the sedition law under section 124 A of the Indian Penal Code (IPC) and wanted to decide on its constitutional validity, but it differed the decision on assurance of the Union Government that they would re-examine and reconsider the law. Centre asked more time in October 2022, in January 2023, and in May 2023, informing the Supreme Court bench now led by Chief Justice D Y Chandrachud that “consultations are at substantially advanced stage” and therefore “proceeding may be posted in the second week of August”, which the court granted.

Attorney General R Venkataramani had also told the Bench on May 1, 2023, in the beginning of May that the process of “reexamination” was on and “once it is finalised before it goes to Parliament, probably they will come back to me about what exactly the shape of the provision to come.” He had also said that “the government is also very keen to push it as early as possible” and “in the monsoon session, probably something may happen.”

Whatever have transpired in the Supreme Court of India in the last one year, especially after its order to stay the application of section 124 A of IPC, the general impression given by the Centre was that the law was intended to be repeal, or at least sufficiently diluted to allow valid criticism of the government that is cornerstone of democracy and freedom of speech as guaranteed by the Constitution of India. However, Modi government was in reality planning otherwise. They were looking for ways and means to retain the law with certain change in wordings. Within about three weeks after the last assurance in May, Law commission of India has come with its recommendation to make the law even more stringent by enhancing the minimum punishment of 3 years of imprisonment to 7 years as well as widening its scope to application to cover entire range of criticism of the government by opposition leaders, journalists, and common people with recommendation of adding “with a tendency to incite violence or cause public disorder” in the section 124 A of the IPC. The expression “tendency”, as clarified by the report itself would mean mere inclination to incite violence or cause public disorder rather than proof of actual violence or imminent threat to violence.

It goes without saying that the proposed amendments would put the very freedom of expression on the mercy of the government and criticising the government’s wrong doings and erroneous policies would become far more difficult if government comes with a legislation in the line of recommendation of the law commission, which the Union government is inclined to.

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. … 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."

The track record of the Modi government on its political propaganda concerning national security, and its clamping down on criticism in media outlets and social media that led to hundreds of arrests and actions against journalists, leaders of opposition and other critics as well as recent IT legislation to curb online criticism of the government shows that they are still in love with the sedition law, and they are set to make it more stringent.

It may be recalled that the then Union Minister of Home Rajnath Singh, who is now Minister of Defence, had made a statement during the election campaign in May 2019, we “will make sedition law more stringent” if we return to power. He had said that the sedition law would be strengthened so that even the soul of the anti-nationals would shiver. He was hitting at the Congress for promising to abolish sedition law in their poll manifesto.

By 2018, sedition cases rose by 28 per cent, and were chiefly registered against critics of the Modi government and the BJP, who were severely criticising their communal Hindutva agenda, minority lynching, demonetisation, GST, privatisation of public sector, pro-corporate policies, unprecedented level of unemployment that was 45 years high etc. Hundreds of them were labelled as security threat to the country, booked under sedition, and arrested. It had politically threatened the Modi government who wanted to suppress the opposition voice and resorted to large scale misuse of the sedition laws. It was in that backdrop Congress had promised abolition of the sedition law in their 2019 election manifesto. The law was misused even during the pandemic year 2020 and during the farmers agitation in 2021.

The misuse was even noted by the Supreme Court bench while it kept the law at abeyance on May 11, 2022 and emphasised that the bench was concerned with “misuse of the law and lack of accountability of executive and the investigating agencies.” The bench had also ordered that the government would not register any fresh case under this law and those who were put behind bars could approach court for bail. Later in October 2022, the bench headed by Chief Justice of India UU Lalit, had deferred the cate to January 2023, on assurance by the Centre that “appropriate steps” would be taken.

Now the same security threat is being quoted after five years of the statement of Rajnath Singh during election 2019, this time just before the general election 2024. Modi government is being severely criticised by the opposition leaders, journalists, and other critics in the media. The situation is turning fast against their rule as it was evident from the Karnataka election where the “Hindu Hriday Samrat” could be defeated by “Pappu” even when he was disqualified from Lok Sabha membership for the offence of criticising PM Narendra Modi during the Lok Sabha election 2019. The punishment is arguably disproportionately high in a democracy. Political threat to Modi led BJP is very high since their several key alliance partners had left them, Modi’s Karishma is on the wane, and their support base is eroding fast across the country. They are running a risk to be reducer below 200 seats in the Lok Sabha against their 303 seats won in 2019. Public criticism has become even more severe than in 2019, and hence the they are mulling a stringent sedition law to stifle the opposing voice in the name of national security.

The law commission has provided them a basis to do that. Section 124A needs to be retained in IPC, it has recommended on national security reasons along with widening its scope and making it stringent. It also suggested to amend section 154 of the Criminal Procedure Code (CrPC) to incorporate another suggestion regarding FIR. The commission has said that repealing the law can have serious adverse ramification for the security and integrity of the country. It becomes imperative to retain it and ensure that “all such subversive activities are nipped in their incipiency.”

The recommendations are just opposite to the view of the Supreme Court of India and its order on the petitions filed by the TMC, Editors Guild of India, Journalists, PUCL and others who had prayed for scraping the sedition law.

The recommendations are contrary to the ethos and the very foundation of the republic, the Rajya Sabha MP and former Union Minister of Law Kapi Sibal has said. He has reminded that after 2014, there have been more than 10,000 cases of sedition out of which only 239 had conviction. Obviously, it is being unfairly used to supress criticism of the government.

On behalf of Congress, senior leader Abhishek Manu Singhvi said that BJP planning to make the law more “draconian” drastic and deadly than the colonial regime and wanted to send a message before the next general election that it would be used against opposition leaders. BJP used the sedition law as a tool of “subversing, subjugating, and silencing dissent” he alleged.

Nevertheless, it would depend on the Supreme Court of India, whether it vacates its stay of application of the sedition law or not, or whether it decides the constitutional validity of the law when it the case comes for hearing in the second week of August. It is also likely that the case is referred to larger bench than the present three-member bench, since the earlier judgement in Kedar Nath Singh v. State of Bihar case was delivered by five-judge bench.