Merely because a legal provision has colonial origin does not make a case for its repeal: Law Commission of India Report recommends to retain Section 124A IPC

  • Sakshi Shukla
  • 03:21 PM, 05 Jun 2023

Read Time: 07 minutes


The Law Commission of India recently published its 279th Report titled Usage of the Law of Sedition.

The Law Commission of India, in its 279th Report titled Usage of the Law of Sedition, recommended retaining Section 124A of the Indian Penal Code, 1860 with certain modifications.

The report suggests conducting a preliminary inquiry before the registration of FIR as a procedural safeguard against misuse of Section 124A, consistency in punishment stipulated under the said provision and inclusion of the phrase tendency to incite violence or cause public disorder where tendency would mean mere inclination to incite violence or public disorder.

The ratio of the decision in Kedar Nath Singh has been further recommended to be included in the phraseology of Section 124A, so as to bring better clarity and usage of the provision.

“The ever-proliferating role of social media in propagating radicalisation against India and bringing the government into hatred, many a time at the initiation and facilitation by adversarial foreign powers, all the more requires such a provision to be present in the statute. Section I 24A of IPC has its utility in combating anti-national and secessionist elements as it seeks to protect the elected government from attempts to overthrow it through violent and illegal means. The continued existence of the government established by law is an essential condition for the security and stability of the State. In this context, it becomes imperative to retain Section l24A and ensure that all such subversive activities are nipped in their incipiency”, the report states.

It further provides that neither the colonial nature of the legislation nor counter-terror legislations such as the Unlawful Activities Prevention Act, 1967, are enough to obviate the need for Section 124A of the Penal Code, 1860.

“It is often said that the offence of sedition is a colonial legacy based on the era in which it was enacted, especially given its history of usage against India's freedom fighters. However, going by that virtue, the entire framework of the Indian legal system is a colonial legacy. The Police force and the idea of an All India Civil Service are also temporal remnants of the British era. Merely ascribing the term 'colonial' to a law or institution does not by itself ascribe to it an idea of anachronism. The colonial origins of a law are by themselves normatively neutral. The mere fact that a particular legal provision is colonial in its origin does not ipso facto validate the case for its repeal”, the report further adds.

Union Law Minister, Sri Arjun Ram Meghwal on recommendations of the Law Commission recently said, “The law commission report on Sedition is one of the steps in the extensive consultative process. The recommendations made in the report are persuasive and not binding. Ultimately, the final decision will be taken only after consulting all the stakeholders.”

The Constitutionality of Section 124A of IPC was challenged before the Supreme Court in S.G. Vombatkere v. Union of India, (2022) 7 SCC 433.

On May 11, 2022, the Top Court directed the Central Government and all the State Governments to refrain from registering any FIR or taking any coercive measures while suspending all continuing investigations in relation to Section 124A. Directions were also issued that all pending trials, appeals and proceedings be kept in abeyance.

The 22nd Law Commission after the appointment of the Chairperson and other members vide notification dated 07.11.2022, took up this reference and submitted the final Report last week. A comprehensive study relating to sedition and its usage in India, genesis and history of the law, both in colonial and independent India, the application of sedition law in various jurisdictions, and judicial pronouncements on the subject were discussed and elaborated upon.