India’s Top Court Suspends Colonial-Era Sedition Law

NEW DELHI — India’s top court directed the government on Wednesday to suspend a colonial-era sedition law that critics say has been abused for decades to shut down dissent.

Immediately, hundreds of people jailed under the law became eligible for bail, which is rarely given in sedition cases, and the police were prevented from bringing any new sedition charges.

The court said that the law was “not in tune with the current social milieu, and was intended for a time when this country was under the colonial regime.”

First imposed by the British colonial administration in the 19th century to quash India’s pro-independence movement, the law has been used by subsequent governments in post-independence India to control dissident speech, according to Amnesty International, which welcomed the law’s suspension.

Indian states controlled by the Bharatiya Janata Party, the Hindu nationalist ruling party of Prime Minister Narendra Modi also known as the B.J.P., have stepped up their use of the law, applying it broadly to punish people for perceived slights to India’s Hindu community and in circumstances that have drawn derision and mockery.

In the B.J.P.-controlled state of Madhya Pradesh, a Muslim comic was jailed pre-emptively for jokes that he might (but did not) make. In Uttar Pradesh, a state also controlled by the B.J.P., a journalist was arrested on sedition charges in connection with trying to report on a gang rape of a minority Dalit woman by upper-caste Hindus.

States led by opposition parties are also misusing the law, according to India’s top court. The state government in Mumbai, India’s financial capital, charged a husband and a wife, both local politicians, with sedition after they said they would recite the Hanuman Chalisa, a Hindu devotional verse, outside the residence of the state’s chief minister as an act of protest. They were detained but granted bail 12 days later in a case the top court cited as a “glaring misuse” of the law.

The ruling on Wednesday does not overturn India’s sedition law. That is something that only Parliament has the power to do. Mr. Modi’s government has pledged to review it as part of a broader project to scrap thousands of laws and rules that “reeked of a colonial mind-set,” according to an affidavit it filed with the Supreme Court.

The law came into force under British rule in 1898 to quell a pro-independence uprising. It was later used to jail thousands of Indians fighting against colonial rule, including Mohandas Karamchand Gandhi. Gandhi’s offense: a series of opinion essays in his weekly newspaper Young India. The independence leader later testified in court that the law was designed to suppress civil liberties.

The language of India’s sedition law is intentionally vague, legal experts say. It can be wielded against anyone who “brings or attempts to bring into hatred or contempt, or excites or attempts to excite dissatisfaction” toward the government.

“This is the most misused law set up by the British to control the Indians,” said Mahua Moitra, a petitioner who is also an opposition member of India’s Parliament. “The ruling government must stop using this law to suppress dissent.”

Even after the country gained independence in 1947, the law remained on the books with ruling governments often using it for political gain, according to its critics.

Since Mr. Modi came to power in 2014, activists say it has become a commonplace tool for the government and its allies to stifle dissent. In Uttar Pradesh, the police charged 28 people with sedition after they protested a law that gave fast-track citizenship to foreigners from neighboring countries of all major religious groups except Islam.

The Supreme Court took up two petitions filed last year, one by a journalism nonprofit, and the other by a retired army major-general, that said the law violated India’s constitutional protections of free speech and expression. In June, the court said it was concerned about the law’s unwieldiness, comparing it to a “carpenter being given a saw to make an item who uses it to cut the entire forest instead of a tree.”

Conviction under India’s sedition law is rare. The government has mainly failed to prove the charges in court. Nevertheless, in recent years, the number of people charged under the law has increased sharply.

A senior Indian lawyer representing the petitioners, Kapil Sibal, told the Supreme Court that around 13,000 people were currently facing the charges under the law.

According to India’s National Crime Records Bureau, out of the 548 people charged with sedition between 2015 and 2020, only a dozen were convicted. A number of academics, writers and poets are being held under antiterrorism laws, including sedition, that have been used to criminalize everything from leading rallies to posting political messages on social media.

Many languish in jails for years, fighting wave after wave of fresh charges, or because they are too poor to hire lawyers to defend them.

In 1962 when the country’s top court admitted a petition against the misuse of law, a five-judge bench upheld its constitutional validity saying the criticism of the government cannot be labeled sedition unless accompanied by a call for violence.

On Wednesday a three-judge panel said “reconsideration and re-examination” of the law’s modern application was necessary.

“It will be appropriate not to use this provision till further re-examination is over,” said Nuthalapati Venkata Ramana, the chief justice of India, ordering the Modi government to pass directives to regional governments to prevent the misuse of the law.

Initial reaction to the court’s order by Mr. Modi’s government was mixed.

“The court should respect government, legislature, so as government should also respect court. We have clear demarcation of boundary,” said Kiren Rijiju, Mr. Modi’s law minister, cautioning justices not to overstep their authority.

Anuradha Bhasin, an editor of The Kashmir Times newspaper and a petitioner, said the law had no place in any independent and democratic country.

“Things in recent years have become worse, with more and more people being charged with sedition, even though the range of cases showed that mere expression of opinion was being deemed as sedition without linking it to any kind of violence,” Ms. Bhasin said.