Scrap sedition. Stop UAPA’S misuse
The police, prosecutors, and political executive won’t do it. The only hope is the judiciary
With a scathing indictment of its relevance and flagrant misuse, the Chief Justice of India has, finally, joined the chorus against the sedition law. The law commission had deliberated on the issue earlier and advised its removal, even as sections of civil society, non-governmental organisations, journalists, and lawyers have consistently highlighted the misuse of this law for political purposes. This has been accompanied by demands for compensation in cases involving long periods of incarceration and acquittal, amid all-round condemnation of the continued use of such allegedly anti-democratic laws.
And yet, nothing seems to move. The Government of India (GOI) appears to be in no mood to relent. There are no fresh guidelines on the registration of such cases, nor has the subject has been discussed in the annual director-general of police (DGP) conference. Meanwhile, statistics present a grim picture: 96 persons were arrested under the sedition act in 2019 but only two were convicted. Or take the Unlawful Activities (Prevention) Act or UAPA. From 2016 to 2019, there were 5,922 arrests under UAPA, but it resulted in only 132 convictions, a pitiable rate of 2.2%.
To understand why these draconian acts persist, it is instructive to explore the role of the main actors involved in the criminal justice system – the police which registers the first information report (FIR) under these sections and investigates; the prosecution, which is independent of the police and prosecutes the cases in court; and the judiciary, which delivers the judgment.
The sedition provision or UAPA is misused at the registration stage under three conditions. First, when an investigative officer uses it to enhance the gravity of the crime, to attract the attention of his superiors. Second, when he does so on directions from above. And third, when he does it himself with the confidence that it will have the approval of higher authorities.
Why is there no systemic review to check this? A staggering number of supervisory officers choose to ignore it, right from the deputy superintendent of police (DSP), SP, deputy inspector-general (DIG), to IG. As special cases, they are also reflected in several weekly or fortnightly reports going right up the hierarchy. But rarely is there an intervention to divest the FIR of these sections. Even the DGP and home secretary are aware of such reports but choose to remain aloof. And so too the chief secretary, but as the exalted head of the bureaucracy, he perhaps sees himself well above these mundane matters.
As far as the political executive is concerned, the home minister (both at the Centre and in states) counters the charges of murder of democracy in the legislature by mounting counter charges, followed by the publicity division director issuing a well-drafted government version on the grave threat emanating from such crimes.
Unlike the commonly held view that prosecutors advise the police to put a case on a sound legal footing, the 1973 amendment of the Code of Criminal Procedure (CRPC) Act separated the prosecution from the police and made it a separate entity. Every state has a directorate of prosecution in the home ministry. Before 1973, senior officers sought the advice of prosecutors on important cases to ensure that the charge-sheet, when filed in court, had all the necessary ingredients for charges to be framed by the court. In many parts of the world, a prosecution-guided investigation ensures that the case is legally sound, and is squarely based on hard evidence and statements of eyewitnesses.
The prosecutors now do not represent the police but the State. But even shorn of the advisory role, if a prosecutor argues for the State, how can he prosecute a man charged wrongly under these acts and why does he not bring this to the court’s attention? This dilemma of the prosecutor needs to be resolved. He is seen pleading on behalf of a State before a judge in a case where he himself is not convinced of its veracity. The role of the prosecutor needs to be deliberated upon by all stakeholders.
And finally, the judiciary. The sedition law introduced in 1870 included within it almost every action and word, spoken or written, ostensibly bringing the government into disrepute, thus giving a great opportunity for misuse to overzealous police officers or a prying State. The courts, recognising this shortcoming, defined the scope of the Act in a series of judgments. In the Kedarnath case 1962, the Supreme Court averred, “comments no matter how strongly worded, expressing disapprobation of actions of Government, without exciting those feelings which generate the inclination to cause a public divide by acts of violence…” would not constitute sedition.
A copy of the FIR of every such case reaches the magistrate, and the charges are also framed by the learned judge after scrutinising the chargesheet presented by the police. Why are the charges framed under these sections by the judge, if prima facie case is not established? Liberty is sacrosanct, and hence, in cases where bail has been made so difficult, it is incumbent upon the judges to carefully scrutinise the basis of cases at this stage itself. After all, the Delhi High Court gave bail to two activists arrested under UAPA, stating that prima facie, there was no case. In Stan Swamy’s case, after his arrest, the National Investigative Agency did not even ask for his custody.
Who will bell the cat – for the sedition act to go and UAPA to be used strictly on merit? The State will not let go of its powers to use these acts, and the senior leadership of the police and bureaucracy do not seem inclined to stand up. The prosecution is just another weak limb of the home ministry. And thus, hope rests only on the Lordships to redefine the scope of UAPA and strike off the sedition act, both of which are a blot on democracy.