Soon after introducing the Indian Penal Code (IPC) in the 19th century, the British colonial administration put in it a provision to punish those who worked against its interests on charges of sedition. The provision, incorporated in Section 124-A of the IPC, was used against several freedom fighters, including the tallest of them all, Mahatma Gandhi. As a law inconsistent with the principles of democracy, Section 124-A should have been scrapped when the country gained freedom. But it remained on the statute book.

Mercifully, the early governments invoked this section only rarely. Lately, however, there has been a spurt in its use. When Prime Minister Narendra Modi took office in 2014, there were only 14 sedition cases before courts across the country. Early this month, the number of sedition cases was about 13,000. Of course, all these cases were not instituted by the Modi regime. They include cases launched by the state governments as well.

Civil society activists working among the poor, particularly Adivasis, and journalists were among those against whom the Bharatiya Janata Party government slapped sedition charges. The conviction rate in sedition cases is very low. But that does not appear to have diminished governments’ enthusiasm to pursue them. Even when they are not able to secure a conviction, the police and prosecutors appear to derive satisfaction from that they were able to hold the accused in jail without bail during the usually long trial period.

Recently, the Chief Justice of the Supreme Court of India, N.V. Ramana, decided to consider a batch of writ petitions challenging the sedition law, which had mostly been filed by human rights activists. In doing so, he asked the Central government to respond to the petitions. The Centre told the court that the law must remain.

The Centre soon realised that the Court was inclined to do away with the colonial law anyway. Within 24 hours, the Centre’s counsel told the court that many colonial laws were outdated and the government had already done away with a large number of them. He said the Prime Minister had asked the government to review the remaining colonial laws, including Section 124-A of the IPC, and eliminate outdated ones.

But the court did not want to leave it to the Centre to decide the future of the sedition law. Through an interim order, the Chief Justice’s court asked the Central and state governments not to register any new sedition cases. The government’s counsel argued that the court did not have the power to ask governments not to invoke a law that was on the statute book.

The court did not expressly respond to the argument. It said all those who are in jail in sedition cases can apply for bail, citing this interim order. Although a large number of persons are facing sedition charges, so far there is no report of a rush of bail applications. Thereby hangs a tale. The police and prosecutors routinely include charges under various draconian laws like the Unlawful Activities Prevention Act (UAPA) in the charge-sheets against those accused of sedition to strengthen their cases against them. Bail is difficult to get in UAPA cases too.

Even if the lower courts, honouring the apex court’s interim order, grant bail in the sedition case, the accused will not be able to leave the prison until he gets bail in the other cases as well. Civil society activists and relatives of those accused of sedition have publicly drawn the court’s attention to the UAPA albatross around their necks. Hopefully, the court will address this issue suitably when the matter comes up again.

The real problem in the sedition issue is that our democratic sensibilities are weak. Many come to power believing that their electoral mandate gives them the right to ride roughshod over the rights of citizens. The judiciary has a big role to play in curbing such thinking. This is not, however, something that can be remedied easily.