Trudging past 149 clauses and armed with a Hindi-to-English dictionary, Clause 150 that intends to replace sedition, stares us in the face at page 48 of the proposed Bhartiya Nyaya Sanhita, 2023, the bill seeking to replace the Indian Penal Code (IPC) 1860.

On 11 August 2023, one year and three months after the Supreme Court stayed the operation of section 124-A, home minister Amit Shah introduced three bills to overhaul the existing 163-year-old Indian Penal Code (IPC), 50-year-old Code of Criminal Procedure and the 151-year-old Indian Evidence Act, which a Committee for Reforms in Criminal Laws (CRCL) was tasked with in May 2020. The minister did this on the last day of Parliament just before it was adjourned, putting to rest any chance of a debate or a discussion on the impact of such monumental changes in the everyday lives of 1.3 billion people.

Shah said that these bills would be referred to a parliamentary standing committee, which now has approximately four months to submit its recommendations before the winter session in Parliament in November-December 2023, at which point it is highly likely that these bills will become laws. With an eye on the general elections in 2024, the home minister hopes to appeal to an audience that will applaud the optics of replacing the old colonial past with the new.

Except, has anything changed from the British Raj to now?

The answer, certainly in the proposed Clause 150, is an unambiguous no. Indeed, the ambiguity, legislative intent and punishment are starker and stronger than the old law, which itself, as Article 14’s sedition database—13,000 people charged with sedition over 11 years—clearly revealed, was widely misused in disregard of Supreme Court judgements against all manner of dissenters, journalists, minorities, political opponents and ordinary citizens.

There are several linguistic changes in the proposed Clause 150, now known widely as the replacement to sedition. Some additions include criminalising the use of “electronic communication” and “financial mean” to engage in “subversive activities”, encourage “feelings of separatist activities”, and endanger the “sovereignty or unity and integrity of India”, with the punishment increased from the earlier three years to life imprisonment, to seven years or life imprisonment.

But the biggest change is that of replacing crimes of disaffection against the government established by law, with crimes against the nation. The new Clause 150 has merged the government and the country into one entity, by removing the phrase “government established by law” that is explicitly mentioned in section 124-A.

What does such a law hold for the future?

“From 1860 To 2023—A Legacy Of Vagueness Continued”

It appears that the CRCL and the ministry of home affairs (MHA) prefer not to learn from the British Raj. The jurisprudential history (here, here and here) of section 124-A shows that the inability to interpret it caused such chaos at police stations and at all judicial levels, that the Supreme Court stayed the provision on 11 May 2022, 60 years after a constitutional bench flagged this same concern in Kedar Nath Singh.

The IPC is already rife with provisions that are vague and ambiguous, Section 124-A included. The proposed Clause 150 only builds on this legacy of vagueness in these for instance, encouraging “feelings of separatist activities”, “subversive activities”, “secession”, endangering “the unity and integrity of India”, all terms with no legal definition in any statute or laid down by any court.

Perhaps the most recent invocation that vagueness in criminal law can be unconstitutional, was present in the Supreme Court’s decision to strike down section 66-A of the Information Technology Act, 2000, in Shreya Singhal. The Supreme Court’s point, one that the CRCL and the MHA ignored in its desire to rebrand colonial criminal laws, was that a person is entitled to know what is and isn’t a crime.

Without this clarity, the powers that be can arrest and imprison at whim. Subsequently, these authorities are, at best, answerable to the court at the remand stage, and at worst (for the accused), only at trials that start and end several years after the arrest is made.

A closer examination of the kinds of sedition cases that people are forced to fight include, wearing t-Shirts, listening to a video privately, dancing, or watching cricket—these are not even instances of criticism against the government, simply people going about their lives. Yet FIRs were filed against them, with no intent to spread disaffection against the government established by law.

For instance, we found that 53 sedition cases were filed against 204 individuals in Karnataka between 2010 and 2021. Of these, 20 cases were filed against 46 individuals for their expressions on social media platforms. The accused, we reported in July 2021, included traumatised farmers, shopkeepers, daily wage workers & students.

The same criminal justice system that charged these individuals with sedition, puts further burdens by way of time taken in granting bail and concluding trials. We found that an accused was most likely to spend upto 50 days in prison until a trial court granted bail, and upto 200 days until a high court did so. We also found that trials take anywhere between 209 days to 3520 days from the time the FIR is filed until a verdict of acquittal.

Vagueness Cannot be Countered by Adding Requirement of Intent

The 2015 Shreya Singhal judgement, in which the Supreme Court held that section 66A of the IT Act is unconstitutional, is an important juncture in the development of criminal law jurisprudence because the Court clearly underlined the danger of vagueness. An unclear law means that a person can be arrested, jailed and subject to a pre-trial, trial and appeal process that drains them of all social, economic and other resources. The Supreme Court recognised the unfairness of subjecting people to grey areas in criminal law, and therefore struck down the offending section.

This jurisprudential line of thought is ignored in the 2023 replacement penal code.

In the days and weeks to come, we can expect several comparative tables between existing laws, and the new bills that will highlight the almost verbatim text copied from one to the other. However, a bare reading of the proposed penal code reveals that no changes have been made to existing ambiguous laws.

Sections 153-A, 153-B, and 295-A in the IPC—all criminalising the spread of “feelings of enmity, hate and ill will” towards other people and towards national integration—find their counterparts in the proposed new penal code that copies the same language (See Clauses 194, 195 and 297). The new bill therefore addresses none of the anxieties brought on by vagueness, that the Supreme Court posed in Shreya Singhal.

Instead, it has been argued that the addition of the words “purposely and knowingly”, in Clause 150, will weed out instances of misuse that had plagued Section 124-A, since these words indicate criminal intent or state of mind. Presumably therefore, Clause 150 will never be invoked by the police against those who did not intend to encourage separatist feelings or endanger the unity of India, and were simply in the wrong place at the wrong time, or were peacefully criticising the government.

This is a misplaced argument.

Clause 150 and Section 124-A face common problems

Over 11 years, 106 sedition cases were filed against those who posted allegedly “anti national” or “pro Pakistan” content on social media: Facebook, Twitter, WhatsApp, Youtube and Tiktok. Except for one case, all were filed after 2014.

Further, despite legislative explanations that criticism is not seditious and a 1962 constitutional bench judgement to this effect, 96% of sedition cases filed against 405 Indians for criticising politicians & govts between 2010 & 2021 were registered after 2014, 149 were accused of making “critical” and/or “derogatory” remarks against Prime Narendra Modi, and 144 against Uttar Pradesh (UP) chief minister Yogi Adityanath.

The problem of misuse is one that originates from the police station, and not the courts. Safeguards that were thought to be effective against this misuse, including the Kedar Nath Singh test that only criminalised incitement to violence, did not work.

For those claiming that guidelines to curb police power will be effective, need only look at the example of Feroz Ahmed, an electrician with a small shop in Nautanwa market in Uttar Pradesh. Ahmad, then 36, was arrested on 9 November 2018 and charged with sedition. Police accused him of forwarding a WhatsApp message, which the men of the Hindu Yuva Vahini, a right-wing organisation established and nurtured by UP chief minister Yogi Adityanath, claimed had hurt the religious sentiments of Hindus.

At the time of his arrest, about 20 men of the Hindu Yuva Vahini were already there at the police station shouting “Jai Shri Ram.” One of these men then proceeded to dictate the laws to be invoked in the FIR, to the police officer.

These arguments calling for a repeal of the law on grounds of vagueness, misuse, abuse of police power, inability to reconcile procedural safeguards with the fundamental meaning of sedition, and the outdated Kedar Nath Singh test, were made before the Supreme Court by public interest petitioners, and the provision is now stayed. The proposed Clause 150 nullifies every public effort made to highlight and address those issues with sedition.

New Bills Reinforce Colonial Legacy

The government’s inability to hear critical voices has dogged the very structure and process of the CRLC, borne out in Article 14’s investigative reporting from three years ago.

The terms of the CRLC’s reference were never made public, the composition of the committee lacked any diverse or representative voices of people across disciplines and capacities, and the committee was given a shocking six months to overhaul three major criminal laws.

“What is the purpose of discussing such questions?” retired Bombay High Court judge Abhay Thipsay said about the CRLC’s methodology. “Procedural laws are more troublesome and need urgent attention. In fact some of the new acts are thoughtlessly drafted and poorly implemented.”

“Even if these reforms are necessary, they only serve a theoretical purpose,” said Justice Thipsay “The point to be made is, these are not topics requiring any urgent reforms.”

These efforts to rename existing criminal laws from English to Hindi, is equivalent to demonetisation—where much was promised by way of economic progress and little in that direction was achieved. It appears that this formula is now being used on the architecture of the existing sedition law, in saying that only a complete striking down of the building will yield reform and a breakaway from a colonial past.

However, even one reading of the new bill will demonstrate the hollowness of this claim.

There is a problem in how the legacy of coloniality is being framed by the government and its efforts to distance itself from the methods used by the British Raj to subjugate people. Clause 150 proposes that the government is the nation. There is no difference between the two, just as there was once no difference between god, king and country.

(Lubhyathi Rangarajan is a lawyer and Editor-Databases at Article 14, She led and conceptualised the sedition database, ‘A Decade of Darkness-The Story of Sedition in India’. Courtesy: Article 14, a joint effort between lawyers, journalists, and academics that provides intensive research and reportage, data and varied perspectives on issues necessary to safeguard democracy and the rule of law.)