TOOLS OF REPRESSION
Laws meant to protect India’s sovereignty and uphold law and order are increasingly being used as a tool to silence protesters
Sedition
Section 124A of the Indian Penal Code defines sedition as any words, either spoken or written, or signs, visible representations or other communication that can cause ‘hatred or contempt’, or that ‘excites or attempts to excite disaffection’ towards the government. (Disaffection is defined as feelings of disloyalty and enmity.) However, comments that show disapproval of actions taken by the government, which are made intending to ensure the government alters those actions, are not considered sedition as long as they do not excite or attempt to excite hatred, contempt or disaffection toward the government.
Tough provisions: Sedition is a cognisable offence, which means the police can arrest a person accused of this crime without a warrant.
It is also a non-bailable and non-compoundable offence (the latter means it cannot be settled through a compromise between the accused and the victim). Those charged under 124A are barred from holding government jobs and have to surrender their passport. The punishment includes imprisonment (ranging from three years to a life sentence), a fine, or both.
National Security Act, 1980
The National Security Act, 1980 (NSA) provides for ‘preventive detention in certain cases and for matters connected therewith’. It empowers central and state governments to detain people to prevent them from acting in any manner ‘prejudicial to the security of India, the relations of India with foreign countries’ or ‘to the maintenance of public order, or the maintenance of supplies and services essential to the community’, among others.
Tough provisions: Under the NSA, people can be detained without being charged for up to 12 months. People can be detained for up to 10 days without being informed about the reasons for their detention. Detained individuals can appeal before a high court advisory board but are not allowed a lawyer during the trial.
Unlawful Activities (Prevention) Act, 1967
This law is aimed at enabling central and state governments to prevent terrorist activities against the integrity and sovereignty of India.
Tough provisions:
The UAPA permits detention without charge for up to 180 days. Amendments made in 2019 give the Union government the power to notify an individual as a ‘terrorist’ without a trial. Custody can be extended to 30 days. On February 1, 2021, the apex court ruled that bail could be granted to an accused if the right to speedy trial was violated.
spokesperson, concurs: “Everyone has freedom of speech and expression, but no one is allowed to try to defame the government by presenting false facts. Action is being taken as per the law against those who do this.”
To which former Supreme Court justice Madan Lokur counters: “The authorities have become selectively intolerant. They pick and choose the dissenters but go easy on the real antisocial elements.” Additional sessions judge Dharmender Rana was scathing in his order while granting bail to Disha Ravi (see Her Right to Dissent). “Citizens are consciencekeepers of the government,” he said. “They cannot be jailed simply because they choose to disagree with state policies. Sedition cannot be invoked to minister to the wounded vanity of the government.”
PROCESS IS THE PUNISHMENT
The sedition charge has emerged as a potent tool to quell dissent because of the pretrial harassment it involves, including the parallel trial that goes on, particularly in social media. A cognisable, nonbailable offence, a person accused of sedition can be arrested without a warrant. Punishment includes imprisonment ranging from three years to a lifetime, a fine, or both. Further, a person charged under 124A is barred from a government job and has to surrender his or her passport.
The laws involve a complex and punishing legal process at the pretrial stage and, therefore, are often intended to harass a dissenting voice rather than bring an offender to book. Anushka’s research found that people spent between Rs 90,000 and Rs 2 lakh just to get bail. “The final conclusion of the trial does not matter if one can be arrested for weeks or months without trial. These laws, therefore, have a nuisance value where the process becomes the punishment,” says Kunal Ambasta, assistant professor at the National Law School of India University, Bangalore.
That many of the sedition cases are filed without valid basis is evident in the low conviction rates over the years. While the number of sedition cases jumped from 35 in 2016 to 93 in 2019, the rate of convictions dropped from 33.3 per cent to 3.3 per cent in the same period. Anushka attributes it to the legal illiteracy among the police force as well as deliberate misuse, under pressure from the political establishment.
Even former police officers accept that the law enforcement agencies often abuse these laws to target opponents of their political masters. “It is not that the police do not understand the nuances of these laws, but there are occasions when there are unwritten directions from the executive to go hammer and tongs against a particular individual or group,” says Prakash Singh, former directorgeneral of the BSF, Uttar Pradesh Police and Assam Police.
Legal experts say that enforcement agencies take advantage of the elastic framework of provisions such as 124A. Even the subsequent Supreme Court judgments—in the Kedar Nath Singh and Balwant Singh cases—have left room for misinterpretation and misuse by the police and political establishment. “In India, we lack the kind of jurisprudence that lays down norms connecting speech more proximately to its effect and upholds people’s liberty. The Supreme Court in 1962 in the Kedar Nath Singh case ruled that tendency to incite violence is sedition. The word tendency is such a loose and ambiguous term that anything can be interpreted as tending towards violence,” says Anushka.
OTHER INSTRUMENTS IN THE TOOLKIT
Not just 124A, other draconian laws such as the Unlawful Activities (Prevention) Act or UAPA, 1967; the National Security Act or NSA, 1980; the Jammu & Kashmir Public Safety Act or
The judiciary as the protector of people’s freedom must jealously guard the right to personal liberty. Lately, there has been less demonstration of such commitment. Many critics today call our judiciary more executive-minded than the executive itself
Everyone has freedom of speech and expression, but no one is allowed to defame a government by presenting false facts. Action is being taken as per the law against those who do this
Up until a few weeks ago, 21-year-old Disha Ravi was just another enthusiastic climate activist, but on February 14, as the world celebrated Valentine’s Day, the Bengaluru girl was arrested by the Delhi Police for sowing “disaffection” against the Centre. That is what Section 124A of the Indian Penal Code, under which Ravi was held, says in the statute book. After spending five days in police custody and four days in judicial custody, she was released on bail, with a Delhi court scathingly observing that her actions did not amount to sedition.
Ravi, along with Mumbai-based lawyer Nikita Jacob and Pune-based engineer Shantanu Muluk, was accused of making edits to an online “toolkit” for the farmers’ protests, which is now being probed in connection with the violence in Delhi on January 26. Ravi is the India head of climate action group Fridays for Future (FFF), started in 2018 by Swedish climate activist Greta Thunberg. Jacob and Muluk are a part of Extinction Rebellion, a global environmental movement.
The toolkit allegedly mentions action points, a social media-driven digital campaign and physical action during a tractor rally by farmers. According to the police, the violence that took place on January 26 reveals “a copycat execution of the action plan” detailed in the toolkit, which also mentions “disruption of India’s cultural heritage, such as yoga and tea, and targeting of Indian embassies abroad in various capitals”. The urgent actions listed included a “Twitter storm” and protests outside embassies. In the first week of February, several global personalities, including American pop star Rihanna, lawyer-activist Meena Harris (niece of US vice-president Kamala Harris) and former adult entertainer Mia Khalifa, tweeted in support of the farmers’ protests.
The police claim the toolkit was created by the Canada-based Poetic Justice Foundation (PJF), an alleged pro-Khalistan group, and edited by Ravi, who later shared it with Thunberg. On February 2, Thunberg accidentally tweeted the toolkit, bringing it to global focus. Leaked chat transcripts show that moments after Thunberg’s tweet, Ravi had asked her to not post the document as both their names were on it. She also asked Thunberg to “not say anything at all for a while” as they could face action under the Unlawful Activities (Prevention) Act, 1967.
Ravi’s fears about a police crackdown were proven right on February 4, when the Delhi Police registered an FIR against the creators of the toolkit, charging them with, among other things, sedition. They also claim that Ravi, Jacob and Muluk attended a PJF Zoom meeting, and cited as further evidence Muluk’s presence at the farmers’ protests at Delhi’s Tikri border between January 21 and 27. Ravi said in court that she did not make the toolkit, but admitted to having “edited two lines” of it.
On February 23, while granting bail to Ravi, additional sessions judge Dharmender Rana said: “Considering the scanty and sketchy evidence on record, I do not find any palpable reason to deny bail.” Observing that citizens cannot be put behind bars for disagreeing with state policies, he said: “In the absence of any evidence to the effect that the applicant/ accused agreed or shared a common purpose to cause violence on January 26, 2021, with the founders of PJF, it cannot be presumed by resorting to surmises or conjectures that she also supported the secessionist tendencies or the violence caused on January 26 simply because she shared a platform with people, who have gathered to oppose the legislation.”
Citizens are conscience keepers of government... they cannot be jailed simply because they disagree with state policies…the offence of sedition cannot be invoked to minister to the wounded vanity of governments
DHARMENDER RANA Additional Sessions Judge
PSA, 1978; and the Prevention of Money-Laundering Act or PMLA, 2002, are also being blatantly abused, either in conjunction or in isolation with 124A. They are useful for what they provide to the government—the right to detain without trial for a reasonably long period.
The UAPA, for instance, permits detention without charge for up to 180 days. Amendments to the legislation in 2019 have given the Centre the power to notify an individual as a ‘terrorist’ without a trial. The UAPA does not provide either individuals or organisations listed as terrorists any judicial mechanism to challenge the designation. One has to apply to the central government to get a denotification.
Two glaring examples of the abuse of UAPA have been the trial of CPI (Maoist) spokesperson Gour Chakraborty and activist Arun Ferreira. In June 2009, a day after the then Congress-led UPA government banned the CPI (Maoist), Chakraborty was arrested in West Bengal, then ruled by the CPI(M), and charged under UAPA and spent seven years in jail before being acquitted in 2016. Ferreira, too, was arrested under UAPA in 2007 by the Congress-led Maharashtra government and spent five years in jail before his acquittal. “Poor and bad investigation and supervision, coupled with worse prosecution, result in high acquittals. It’s important to fix responsibilities when acquittals happen. That will prevent both misuse of the law and poor investigation and prosecution,” says Vikram Singh, former DGP of Uttar Pradesh.
Ferreira, along with several others including lawyer Sudha Bhardwaj and activists Gautam Navlakha and Vernon Gonsalves, is currently lodged in jail for his alleged involvement in Bhima-Koregaon violence in 2018.
They were all charged under UAPA by Pune police. Poet and Maoist ideologue Varavara Rao, 80, got bail last week on health grounds. In 2020, the investigation was taken over by the National Investigation Agency (NIA), which arrested Jharkhand-based activist Stan Swamy and charged him under UAPA as well.
In fact, this long wait for bail makes UAPA an instrument of state repression against individual liberty. Between 2016 and 2018, 3,005 cases were registered under this anti-terror law, but chargesheets were filed only in 821 cases within the stipulated period of 180 days. Between 2016 and 2019, 5,922 individuals were arrested under UAPA, but only 132 were convicted. Worried over this long period of incarceration, the Supreme Court on February 1 ruled that even if a person is charged under UAPA, they still have the fundamental right to a speedy trial and are eligible for bail if this right is violated.
However, more than UAPA, it is NSA which has often been used disproportionately. The Act, meant to prevent individuals from acting in a manner prejudicial to certain state objectives, including national security, public order and maintenance of supplies and services essential to the community, allows the government to detain a person for up to 10 days without informing him of the reasons for doing so and detention up to 12 months without charges.
In February 2019, the then Congress-led government in Madhya Pradesh invoked this act against five persons accused of cow slaughter and smuggling. Despite the Union minister of state for home affairs categorically stating in Parliament on December 3, 2019 that “transporting of cattle for farm activities and cow slaughter is not a punishable offence under the NSA”, the UP police had till August 19, 2020 invoked NSA against 76 people for cow slaughter. “Chief Minister Yogi Adityanath has directed that NSA be slapped in case of crimes which may affect public order so that there is a feeling of fear among criminals and a feeling of safety among the public,” Awanish Kumar Awasthi, the additional chief secretary (home), said at a press conference.
The same law was used to keep the controversial doctor Kafeel Khan in detention for seven months without trial. On January 31, the UP police arrested Khan for allegedly making an inflammatory and provocative speech during an anti-CAA protest at Aligarh Muslim University in December 2019. On February 10, an Aligarh court granted him bail but four days later charges under NSA were invoked against Khan. On September 1, 2020, the Allahabad High Court set aside Khan’s detention under NSA and released him from jail. Minister Siddharth Singh, however, asserts that action has been taken in Khan’s case as per the law. Madhya Pradesh remains the leader among states invoking NSA, accounting for the highest number of detentions—795 of the 1,198 people held under NSA between 2017 and 2018.
Since its inception in 2002, and after the amendments in 2019, the Prevention of Money-Laundering Act has remained highly complex and controversial, particularly in relation to
The trajectory of events between 2014 and 2021 indicates that perhaps no government in recent times has faced such a consistent, organised and massive assault on its functioning by elements who are willing to take help from foreign organisations and even questionable forces
arrest and grant of bail to an accused. PMLA offences are cognisable and non-bailable, and officers of the Enforcement Directorate (ED) are empowered to arrest an accused without warrant, subject to certain conditions. This is what has made the ED one of the most potent wings of the Union government, more than the CBI.
The law requires that before making an arrest, there must be “reason to believe” that the accused is guilty of the offence of money-laundering on the basis of the material collected during investigation. The reason must be recorded in writing before an arrest. So, in a way, the law shields individuals from arrest on mere suspicion.
Despite these prescribed guidelines, convictions in PMLA cases have remained abysmally low. The ED conducted over 1,700 raids under PMLA between March 2011 and January 2020 in connection with 1,569 specific investigations. However, it managed to secure convictions in only nine. Between April 2017 and February 2020, 578 cases have been registered under PMLA, and the ED summoned nearly 25,000 persons or entities in connection with investigations related to money-laundering, as revealed by Anurag Thakur, the Union minister of state for finance, in Parliament on March 23, 2020.
Another stringent act, the application of whose provisions have been questionable, is the PSA in J&K. A preventive detention law, under which a person is taken into custody to prevent them from acting in any manner prejudicial to “the security of the state or the maintenance of the public order”, it allows detention without trial for three months, extendable up to six, and to two years in case of a “threat to the security of the state”.
Enacted in 1978 by Sheikh Abdullah explicitly to target timber smugglers, the law for decades has been used as a tool for political vendetta. In 2015, in response to an RTI, the government disclosed that 16,329 persons had been detained under PSA since 1988. Between 2007 and 2016, over 2,400 PSA detention orders were passed, 58 per cent of which were quashed by the courts.
Interestingly, it remains one of the few laws of the erstwhile J&K state that have been retained in toto after the repeal of Article 370 in August 2019. Since then, PSA has been invoked against a large number of political leaders, including former chief ministers Mehbooba Mufti and Omar Abdullah. A report by the J&K Coalition of Civil Society and Association of Parents of Disappeared Persons estimates that 662 persons were booked under PSA in 2019. Some reasons for invoking this draconian law has come under severe criticism. Mehbooba Mufti’s dossier, for instance, said that her party’s flag was green, indicating radical intent.
But it is a non-existent provision in the Information Technology Act, 2000—Section 66A—that epitomises the tyranny of law. Section 66A penalised sending “offensive messages” via online communication, empowering authorities to arrest anyone, though the law did not specify what constituted being “offensive”. Politicians have often used this section to silence critical voices. In April 2012, Professor Ambikesh Mahapatra, who teaches Chemistry at the Jadavpur University in Kolkata, was arrested for forwarding an e-mail that had a cartoon lampooning West Bengal Chief Minister Mamata Banerjee to 65 people. He and his neighbour, Subrata Sengupta, had to spend a night in the Jadavpur police station lock-up for violating Section 66A. In March 2015, the Supreme Court declared the section unconstitutional given the excessive vagueness of its provisions allowing its frequent abuse by enforcement authorities. Yet, between April 2015 and February 2020, 1,297 cases are in the courts across 10 states in India, according to a tracker run by the Internet Freedom Foundation (IFF).
“If it is unconstitutional, how can fresh and older prosecution continue against people under this particular section?” asks Apar Gupta, executive director of IFF. “Some police officials appreciate the flexibility that the vagueness in wording and scope of these legal provisions gives them. So, they keep using this unconstitutional provision because it helps them fit this into whatever type of online crime they notice.” Gupta, along with Delhi High Court lawyer Abhinav Sekhri, submitted a paper in the Supreme Court bringing to the apex court’s notice its blatant misuse. The Supreme Court, in February 2019, directed that all police stations and district courts be provided a copy of its 2015 judgment. A year after its direction, the IFF tracker found 245 cases under Section 66A in various courts in 10 states.
ROLE OF THE JUDICIARY
This nonchalance of the executive to judicial orders has also brought under public scrutiny the role of the judiciary in ensuring individual liberty. Constitutional experts and
jurists believe the courts have failed to play a timely and pro-active role in protecting the fundamental rights of the citizens. In most laws with provisions for preventive detention, the only scope for redressal is a habeas corpus petition in the high courts and the Supreme Court.
However, India’s slow-moving judiciary, hobbled by an ever-rising number of pending cases, has failed to respond promptly on a number of occasions. “The judiciary must jealously guard the right to personal liberty. Lately, there has been less demonstration of such commitment. By not hearing habeas corpus petitions for months and denying bail in genuine cases, the judiciary has invited criticism. Ideally, the courts should attach the highest priority to habeas corpus petitions as someone’s life or liberty is at stake,” says Prof. Faizan Mustafa, constitutional expert and vice-chancellor of the NALSAR University of Law, Hyderabad. Justice Lokur is more scathing of his colleagues. “The judiciary has, unfortunately, been timid, and the authorities are taking advantage of this. How else do you explain people remaining under preventive detention for months together?” he enquires.
On March 6, for instance, a Supreme Court bench declined to entertain a plea seeking guidelines for the registration of criminal cases for sedition. This reluctance, legal experts believe, also stems from the judiciary’s extra-cautious approach in matters relating to national security. “When something has been presented as a threat to national security, the judiciary has taken a stand of deference towards the executive as we saw in the upholding of the constitutionality of TADA and POTA. The national security discourse overshadows the rights jurisprudence,” says Anushka. “Some of the inexplicable acts of the judiciary have fuelled the perception that it is unwilling or unable to act as the sentinel of the fundamental rights of the people. It is for the judiciary to introspect and take steps to dispel such a perception,” adds Justice Srikrishna.
This criticism of the judiciary’s reported failure to consistently act proactively in upholding individual liberty has also fuelled the demand for a repeal of these acts. “Sedition laws have a history of being used by colonial powers to curb dissent and disaffection. Their position or desirability in democracies, which should encourage debate and dissent, needs to be questioned,” says Ambasta.
In 2018, the Law Commission of India published a consultation paper recommending that it was time to re-think or maybe even repeal Section 124A. The United Kingdom, where the sedition law originated, banned it in 2009. Not everyone in India, however, thinks we should follow the British example, as these stringent laws are needed to deal with the threat of terrorism and to tackle separatist and secessionist tendencies. “Any legitimate protest can degenerate into a law and order situation if lumpen elements infect it,” says Justice Srikrishna. “This has happened in the past also. It is the responsibility of the government in power to send them a clear message that such hooliganism will not be tolerated.”
There is, however, almost complete unanimity on the urgent need to amend in how these laws are implemented on the ground. “If the sedition law is to be implemented in the manner in which it is done today, it must certainly be taken off the statute book. If it is to remain on the statute book, Parliament must decide that it has to be used very, very sparingly,” says Justice Lokur. Former DGP Vikram Singh suggests that regular workshops to train police personnel, particularly the investigators, on the scope of various laws be held across the country.
Last week, a Delhi court, while granting bail to two men facing sedition charges for allegedly sharing a Facebook post on the Delhi Police during the farmers’ protests, observed that the law of sedition “is a powerful tool in the hands of the state” and “cannot be invoked to quieten the disquiet under the pretence of muzzling the miscreants”. Given that in a democracy like India governments survive on public mandate, it should be mature enough to handle criticism of its policies and correct course rather than seek to penalise its own people. While national security and integrity of the country are non-negotiable, the democratic principles enshrined in the Constitution must also never be compromised.
The laws definitely need to be more humane and must also be implemented in a humane manner. In many instances, the police have deliberately and craftily misused procedural laws and abused substantive laws