Chief Justice of India NV Ramana’s soliloquy in the Supreme Court last Thursday, “Sedition is a colonial law. It suppresses freedoms. It was used against Mahatma Gandhi, Bal Gangadhar Tilak and continues to survive in the law books 75 years after independence.

The sedition law, or Section 124A of the Indian Penal Code, is prone to misuse by the government. The use of sedition is like giving a saw to the carpenter to cut a piece of wood and he uses it to cut the entire forest itself,” is a clear indication the time has come for the repeal of the law.

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Thanks to an amendment to the draft constitution moved by KM Munshi in the Constituent Assembly, sedition does not figure in the Constitution. Moving the amendment, Munshi said, “even holding an opinion against, which will bring ill-will towards the government, was considered sedition once…Now that we have a democratic government, a line must be drawn between criticism of government which should be welcome and incitement which would undermine the security or order on which civilised life is based, or which is calculated to overthrow the State…As a matter of fact, the essence of democracy is criticism of government.”

Munshi’s amendment was accepted and sedition did not disfigure the Constitution, but Section 124A continues to blot the IPC. If one looks at the history of Section 124A, the CJI said, the conviction rate was very low.

“There is misuse of power by executive agencies,” he said.

The Supreme Court is now seized of several cases seeking repeal of Section 124A. NGO Common Cause and former IT Minister in the Vajpayee government Arun Shourie contended in their petition that a presumption of constitutionality does not apply to pre-constitutional laws as those have been made by a “foreign legislature or body.”

In the Kedar Nath case, the Supreme Court failed to take note of a Constitution Bench judgment in Superintendent Central Prison v Ram Manohar Lohia case wherein it was held that only aggravated disturbance of public order as opposed to mere law and order could be used to restrict freedom of speech and that there should be direct and proximate connection between the instigation and the aggravated disruption of public order.

In view of the above, it was submitted that the doctrine of “reading down” in absence of presumption of constitutionality cannot be pressed into service of Section 124A of the IPC. It was used expressly to suppress dissent by the British in India.

Because of its inherent potential for misuse, the section should be struck down. There has been a dramatic jump in the number of people charged under sedition law in the recent past. In 2019, 93 cases were filed on sedition charges as compared to 33 cases in 2016, an increase of 166 per cent in just three years. The number of sedition cases filed in the last two years is staggering.

Even those airing grievances against the government’s handling of the Covid pandemic were charged with sedition. Scrapping the sedition law brooks no delay.