Section 124A and sovereignty

The inappropriate use of Section 124A as a tool of political opportunism erodes the sovereignty of the elected government

On August 26, the Supreme Court of India made certain critical observations with regard to the application of Section 124A of the Indian Penal Code (IPC). The remarks came during the hearing of a case of an IPS officer of Chhattisgarh, who has been serving in various capacities in police and investigative agencies.

In this ongoing case, i.e., Gurjinder Pal Singh vs The State of Chhattisgarh (2021), the court has given directions to the state government for the non-arrest of the petitioner until further orders. It also directed the petitioner to fully cooperate with the investigating agencies and to participate in the inquiry/investigation without fail. The top court noticed that the filing of sedition cases, especially when the regime in power changes, is a worrying trend in the country. The remarks are significant in the context of the ongoing hearing of the public interest litigation (PIL) questioning the constitutional and legal validity of Section 124A.

The Law Commission of India, in its consultation paper on sedition in 2018, argued for a debate among various stakeholders to bring in a “friendly” amendment. Set against this backdrop, here an attempt is made to analyse the nuances and subtleties of Section 124A and its linkage with the state’s sovereignty. The central questions are: Why have the successive governments continued to hang on to this colonial rule/provision when the United Kingdom abolished the same in 2009? What are the contributing factors that explain the sustenance of sedition law in the IPC despite democratic associations and civil society organisations advocating its striking down? The current discourse has argued for the (i) abolition and (ii) repeal of Section 124A on the basis of democracy and its irrelevance in the contemporary period.

Broadly, these two sides of arguments are located in the concepts of rights and liberty rooted in constitutional governance. Both the rights of a citizen to differ from the opinion of the government including dissent and liberty as a political value in a democratic set-up are indeed well-settled principles to argue for the abolition or repeal of Section 124A. In spite of these democratic norms, the successive governments in India — for that matter, across the world — continued to have such provisions in their legal codes. The main argument for the continuation and sustenance of seditious laws is the necessity to curb the elements of secession or terrorism or anti-nationalism, as argued by the Ministry of Home Affairs in its written reply to the Rajya Sabha in 2019. Where does the state find the basis for this argument? The roots are to be found in the concept of sovereignty, precisely the state’s sovereignty.

The term sovereignty has been derived from the Latin word superanus, meaning supreme. Harold Laski (1925) observes, “It is by possession of sovereignty that the State is distinguished from all other forms of human associations.” In simple form, sovereignty is the supreme authority or power of the state having legality to enforce its will through coercive apparatuses or institutions. Section 124A and its sustenance by successive governments draw the legal basis from John Austin’s work namely ‘Lectures on Jurisprudence’ (1832), whose expositions form the legal theory of sovereignty. This aspect is known as legal sovereignty and the second aspect is political sovereignty.

In India, since Independence, the governments have relied mostly upon the aspects of legal sovereignty in pursuing Section 124A. One of the main arguments of Austin’s theory is that “the sovereign is legally unlimited and there are no legal limits to his/her authority”. This theoretical stand provides a well-established ground for states to apply Section 124A on its citizens.

No doubt, legal sovereignty does give scope to the state to enforce Section 124A to protect from the forces of balkanisation. There is a very thin line that divides the freedom of speech and expression from that of causing disaffection towards the government. The problem arises when the government perceives only the latter aspect than the former element in filing such cases. In the process, what the governments are missing is the dimension of political sovereignty and its role in establishing the social legitimacy of the ruling dispensation. The legal aspect of sovereignty is mostly visible, codified and external in nature whereas the political aspect is related to the invisible, uncodified and internal. Underlining the importance of political sovereignty, A V Dicey observes, “Behind the sovereign, which the lawyer recognises, there is another sovereign, to whom the legal sovereign must bow.” Seen from this perspective, Section 124A and its application in India are politically unjustified in addition to the legal validity. The low conviction rate of sedition cases illustrates this point in a reasonable manner.

The way forward

Our Constitution has clearly recognised the sovereign will of citizens in the preamble, i.e., “We the People of India…”. The founders of the Constitution have vehemently opposed the usage of the term sedition in Constituent Assembly debates and hence, it has not found place in the Constitution. While there is a definite need to repeal Section 124A, given the extent of its misuse by elected governments for political gains and to suppress the voices of dissent, it is undeniable that the state must protect the society from anti-national elements but with due respect to people’s rights and liberty.

The due process of rule of law is critical in balancing people’s rights and state responsibility. The inappropriate use of Section 124A as a tool of political opportunism erodes the political sovereignty of the elected government and disturbs the social contract between the state and the citizen. Political sovereignty has a variety of forms and the governments have to acknowledge and appreciate the political demands of the people that were ingrained in the new forms of social movements to protect and preserve the legitimacy of the ruling dispensation.

(The writer is PhD Fellow, Institute for Social and Economic Change, Bengaluru)