Draconian Measure
CHARGES ARE BEING LEVELLED AGAINST PEOPLE AT AN EPIDEMIC RATE. AND IT’S GOING TO GET WORSE. IS THERE A CURE FOR A BAD LAW?
With 21 cases against 170 citizens already, 2016 has been the year of sedition, with the colonial-era law being slapped on people at the slightest of provocations
Divya Spandana Ramya is busy on Twitter. She is talking about the welfare of farmers, the Cauvery water row, retweeting Rahul Gandhi’s ‘Happy Teacher’s Day’ message or sending good vibes on Ganesh Chaturthi: ‘May you receive many blessings for your new beginnings.’ But sometimes, just sometimes, there’s an unsettling edge to her tweets: “Kid says Mysore ‘Pak’ is very nice. Father says—Be careful, don’t say Pak loudly, you will be labelled deshdrohi :)”. The actor-cum-politician is facing summons from a Karnataka court on October 19. She will need to explain why she should not be punished as a deshdrohi (traitor).
She is not alone. The year 2016 has turned out to be the ‘year of sedition’. Not a month has gone by without one or more people being charged with it (see graphic: This Year of Sedition). The National Crime Records Bureau (NCRB) figures for 2014 (the first year it started collecting data on sedition) say 47 cases were registered across the country, 58 people arrested and one convicted across nine Indian states—with Bihar leading the list, followed by Jharkhand, Kerala and Odisha. The NCRB’s 2015 numbers are yet to come, but at least 14 sedition charges, filed against 35 people, have been collated by media watchdog, The Hoot. This year, no less than 21 cases have already been lodged against at least 170 citizens. And those are just cases reported in the media. “The number of sedition charges is rising dramatically and most charges are in complete violation of the scope of the sedition law,” says Prashant Bhushan, counsel and member of advocacy group Common Cause, which filed a PIL against “rampant abuse of the law”,with the Supreme Court on August 16, along with S.P. Udayakumar, the anti-nuclear activist facing sedition charges for protesting against the Kudankulam Nuclear Power Plant project in Tamil Nadu.
Loyalty witch-hunt
Words, ideas and laws that seemed to be on the cusp of extinction are coming back to haunt a modern democracy. For, astonishingly, 146 years after the draconian law of sedition was
introduced in the Indian Penal Code in 1870—as a tool of colonial domination and terror—it is being levelled at the citizens of an independent nation at an alarming rate: for printing a wrong map of India, not standing up when the national anthem is played in a cinema hall, liking a Facebook post, calling a yoga guru a fraud, cheering for a rival cricket team, drawing cartoons of politicians or refusing to chant a slogan. But are these really grounds for sedition?
“Someone making a statement to criticise the government does not invoke an offence under sedition or the defamation law.” On September 5, when Supreme Court of India (SC) Justices Dipak Misra and U.U. Lalit set clear limits to the laws that criminalise dissent, Ramya’s 433K Twitter followers cheered. On August 22, she had been charged with sedition for writing in her blog, “Pakistan is not hell. People there are like us.” The complaint by a Bengaluru advocate was accepted by a judicial magistrate in Karnataka, putting Ramya at the heart of a bitter national debate: What is sedition?
Bad law breeds trouble
One of the most politically fraught laws of all time, sedition is aimed at anyone who “brings or attempts to bring into hatred or contempt, or excites or attempts to excite disaffection towards, the government established by law in India”. It is the highest form of offence against the state, merits the highest punishment and is the most misused— with successive governments using it to stifle criticism, explains jurist Ram Jethmalani. The law clashes with the right to freedom of speech and expression guaranteed by Article 19(1)(a) of the Constitution. It is not even part of the “reasonable restrictions” on free speech under Article 19(2). Yet sedition as a criminal offence remains in the Indian Penal Code (IPC) under Section 124-A, ruining lives touched by it: unwarranted arrests, confiscated passports, dismissal from government jobs, no bail, no dropping of charges without a judge, tough and expensive legal procedures, the threat of fine and incarceration for a life term. “Unless India figures out how to treat the problem of a bad law, it will only get worse,” says Jethmalani.
“We are slapping sedition cases at a time when the draconian law is either
being scrapped or rendered toothless in most modern constitutional democracies around the world,” says P.D.T. Achary, constitutional expert and former secretary-general of the Lok Sabha. New Zealand has got rid of the law (see graphic: Sedition Around the World). Australia has narrowed its scope, eliminating imprisonment. In the US, some laws have been repealed, some have been made a dead letter. In the UK, although the last sedition trial took place in 1947, the law was abolished in 2009—217 years after Thomas Paine was convicted of sedition for writing the Rights of Man. “It puts India at par with countries with the worst human rights index,” adds Achary, “Saudi Arabia, Malaysia, Iran, Uzbekistan .... ”
Discipline and punish
Sedition entered the Indian statute books as ‘clause 113’, when T.B. Macaulay, India’s first Law Member, codified the draft Indian Penal Code in 1837. Strangely, it was kept out of the 1860 Act of the Indian Penal Code, but included in 1870, perhaps to counter a Wahhabi insurgency spreading across the country. It was not used until 1891, when in the first case of sedition in India, Judge C.J. Petheram of the Calcutta High Court convicted journalists of the Bangabasi newspaper for sedition, because they did not seem to have the “disposition to obey the lawful authority of the government” (Queen-Empress v Jogendra Chandra Bose And Ors., 1891). The scope of the term ‘sedition’ expanded continuously over the years, incorporating ‘hatred’ and ‘contempt’. Sometimes it meant any speech or writing showing disloyalty or ill feeling towards the government, sometimes it stood for acts or words inciting disorder. In the case of the Bangabasi journalists, they were considered seditious because they did not seem to have the “disposition to obey the lawful authority of the government”.
In independent India, with the Supreme Court setting guidelines through several landmark cases in the ’50s and ’60s, the law did not really bother the nation. But it thrived in stealth. No one noticed its return until it picked up pace around 2007, when human rights activist Dr Binayak Sen was accused of ‘couriering’ Naxalite letters and arrested on charges of sedition by the Chhattisgarh police. What possibly brought the law down on him was a report he had prepared on the Salwa Judum, the muchtouted “spontaneous people’s movement” against Naxalite oppression of the tribals in 2006. “The rule of law has completely broken down,” Sen had pointed out. Repeatedly detained without proper charges, denied bail, put in solitary confinement for weeks, Sen was released unconditionally on bail in 2009 by the apex court. The public furore also led former UPA law minister Veerappa Moily to declare that the Law Commission of India would take a fresh look at the sedition law. In 2012, another impassioned public debate led political leaders of all hues—L.K. Advani to Bal Thackeray, Sharad Yadav to Arvind Kejriwal—to ask for its amendment. UPA ministers came together to refer it to the Law Commission. In March this year, Union home minister Rajnath Singh told Rajya Sabha members, “The Law Commission is carrying out a review,” while the Opposition charged that the
We are slapping sedition cases at a time when the draconian law is being scrapped in most modern constitutional democracies” P.D.T. ACHARY Constitutional expert
law was being rampantly misused by the NDA government.
What passes for sedition
As the only section in the IPC where speech is the primary focus, the vagueness of language along with twists and turns in interpretation have made it a political hornet’s nest time and again. In September 2015, the BJP government in Maharashtra came out with a circular making criticism of a politician or a public servant actionable sedition. Originally drawn up by the Congress-NCP government in 2012, in the wake of the arrest of the Kanpur-based cartoonist Aseem Trivedi for parodying the political class, the clause was withdrawn within a month, thanks to public pressure.
Consider the ongoing Amnesty sedition case. A First Information Report was filed in Bengaluru against the human rights organisation by members of the right-wing Akhil Bharatiya Vidyarthi Parishad (ABVP) on August 14. Why? Anti-India slogans were allegedly raised at an event on Kashmir organised by Amnesty International, India in Bengaluru on August 13. Amnesty denied the charges, submitting video footage of the event, in defence. A massive agitation by ABVP activists, demanding a ban on Amnesty, followed. Finally, the Karnataka government woke up and gave Amnesty a clean chit. But that led to a war of words, with BJP ministers at the Centre accusing the Congress government in Karnataka of “vote-bank politics”.
A paranoid state
“The state is clearly paranoid.” On August 25, Justice Anand Byrareddy of the Karnataka High Court scoffed at the state government for pressing sedition charges on policeman Shashidhar Venugopal. The Karnataka policeman, as president of the Akhila Karnataka Police Mahasabha, was busy organising a mass leave of the constabulary on June 4—to protest the low wages and poor working conditions of the force. On June 2, the police barged into his home in the middle of the night and arrested him on charges of sedition for attempting to “destabilise the government”. They took his computer, some documents and broke the cellphone with which his wife was trying to record the arrest. Two of his comrades were also similarly arrested. While granting conditional bail to the trio, the judge commented: “There is no evidence of the entire police force rising in mutiny at the behest of the accused.”
On August 2, Kashmiri youth Tauseef Ahmad Bhat, 29, an engineer with a mobile phone company in Chhattisgarh, was dragged out of a train by the police and put in solitary confinement in Durg jail for Facebook posts, (allegedly) “liking, sharing and posting anti-India content”, on complaints by Bajrang Dal activists. The police maintain that Tauseef “was not found to be involved in any other activity”. Indian courts have ruled repeatedly that freedom of expression can be restricted only when it involves incitement to imminent violence or disorder. In March 2015, the Supreme Court struck down Section 66A of the Information Technology Act, observing: “Discussion, or even advocacy, of a particular cause, howsoever unpopular, is at the heart of [the right to freedom of expression]”. Yet in 2015, more than 3,000 people—or four people every 12 hours—were arrested under section 66A (NCRB): Was the law being abused well after it was struck down?
Forgetting the law
“The police, politicians and the public have largely forgotten the apex court’s interpretation,” says K.T.S. Tulsi, senior advocate and Member of Parliament— that uttering slogans by itself does not constitute sedition, unless there is exhortation to overthrow the government by taking recourse to violence. He mentions the landmark 1962 case
The police, politicians and the public have forgotten the SC’s interpretation... uttering slogans by itself does not constitute sedition” K.T.S. TULSI Senior advocate and MP
(Kedar Nath Singh vs State of Bihar), where the Supreme Court had stated: “A citizen has a right to say or write whatever he likes about the government, or its measures, by way of criticism or comment, so long as he does not incite people to violence.”
Tulsi mentions yet another verdict on October 31, 1984, the day former Prime Minister Indira Gandhi was assassinated. Two men were arrested and charged under section 124-A for raising ‘anti-India’ slogans in a crowded piazza of the Sector 17 market in Chandigarh: ‘Khalistan Zindabad’, ‘Raj Karega Khalsa’, and ‘Hinduan Nun Punjab Chon Kadh Ke Chhadange, Hun Mauka Aya Hai Raj Kayam Karan Da (We will drive Hindus out of Punjab; now is the chance to establish our rule)’. But Supreme Court Justices A.S. Anand and Faizan Uddin had acquitted them with the words: “In situations like that, over-sensitiveness sometimes is counter-productive and can result is inviting trouble…. Raising of some lonesome slogans, a couple of times by two individuals, without anything more, did not constitute any threat to the Government of India… [nor] could [it] give rise to feelings of enmity or hatred among different communities….”
Police and prosecution
The SC judgements were forgotten in February this year, when the then Delhi police commissioner Bhim Sain Bassi booked five students of the Jawaharlal Nehru University and a number of political leaders for sedition. On February 9, it was alleged that JNU students had raised anti-India slogans to mark the anniversary of a controversial execution—of Afzal Guru, convicted for the 2001 terrorist attack on Parliament. Bassi not only called the slogans ‘anti-national’, but asked for an amendment to the law of sedition “to remove all scope of ambiguity, so that citizens have no doubt about what constitutes an anti-national act”.
“The casualness with which sedition is being used, with tacit approval of those in power, is a question of fact and judgement on the part of police, prosecution and the courts,” says legal scholar N.R. Madhava Menon. It is unfortunate that the police and a section of the trial courts have often failed to appreciate the line set by the SC, he says. The apex court has had to set aside sedition convictions time and again, deprecating the manner in which either the police had filed a FIR or a trial court had convicted an accused. “What’s needed, therefore, is to educate law enforcement agencies about the nature of the offence under the 1962 Kedarnath formula and caution trial courts to strictly follow the law when cognisance is taken of a case, involving alleged sedition,” says Menon.
The road ahead
“None of the recent cases qualify for invocation of Section 124-A,” says Rebecca John, senior advocate and counsel for JNU Student’s Union president Kanhaiya Kumar. To her, the rise in sedition charges point to a deeper malaise: the rise of rage. “We are rude, on a short fuse, abusive. And that abuse goes unchecked,” she says. In an atmosphere where anger has almost become a new democratic right, criticism is confused with sedition. “The rampant misuse of the sedition law, despite the judicial pronouncements, makes a serious case for repealing it,” she adds.
While a growing number of lawyers and activists seek to make 124-A unconstitutional, others say frequent misuse is not a ground for repealing a law, in the present security situation of India. According to senior advocate Ramachandran Raju, no political party would support such a move: “They would not like to lose a weapon which can be used on dissenting voices.” The solution might be for the SC to come forward and provide procedural safeguards to be followed by law enforcement agencies.
For India, it’s a question of walking the fine line between liberty and security, tough choices and hard lessons. And hoping that reason prevails over politics when it comes to freedom.
Follow the writer on Twitter @DattaDamayanti
The casualness with which sedition is being used...is a question of fact and judgement on the part of police, prosecution and the courts” N.R. MADHAVA MENON Legal scholar