SEDITION LAW: ‘A BLOT ON OUR DEMOCRACY’
It is very unusual for three benches of the Supreme Court to express their views almost simultaneously on the sedition law—Sec. 124A of the Indian Penal Code. For decades, farmers, artists, activists, trade unionists, journalists and others have been arrested for speaking out boldly against government. Peaceful anti-CAA (Citizenship Amendment Act) protesters were arrested in hundreds. Tribals in the Pathalgadi movement in Jharkhand had thousands of FIRs registered against them for telling the government they did not care for their Aadhaar cards and that tribal self-rule would be established in the state. Kishore Chandra Wangkhem, the journalist from Manipur, was arrested for using an expletive against the chief minister. Swearing is not even a crime, let alone an act of sedition. Freedom of speech includes the right to swear. Likewise, the JNU protesters were arrested for nothing other than criticism of the State.
During these decades, the judiciary saw these cases being discussed in the media, but it remained strangely quiet, watching young activists rot in jails and suffer torture even though it was clear that none of them had engaged in violence. This inaction had terrible consequences as it encouraged the police to carry on. Not a single judge dared to dismiss these cases for not having any ingredient of a crime. It was as if the judiciary had lost its institutional spine. That there were no judges willing to look at the FIRs and chargesheets and ask “where is the offence?” was a telling indictment of how low the judiciary had sunk.
When a politician wins a huge mandate at the polls and continues his winning streak into the next term, judges seem to lose their determination to speak truth to power. Judges were told that the allegations of terrorism would be proved during the trial. In that case, the activists should have been arrested when the proof materialised. No person should spend a single day in jail on the assurance that proof justifying the incarceration will materialise some time in the future. In that case, judges are required under law to discharge the accused or release them on bail. That never happened and so acquittals became the rule under the terrorism statutes for lack of evidence.
A judgment of the Supreme Court that requires particular attention is the one delivered in the National Investigation Agency vs Zahoor Ahmad Shah Watali case, 2019. The judges held that prosecution evidence that would not be legally admissible during trial (such as hearsay evidence) could nevertheless form the basis for denial of bail. This is an incredible proposition since criminal law mandates that a person can be incarcerated only on the basis of evidence admissible in law. The civil rights activists arrested in the Bhima-Koregaon case are suffering illegal incarceration on account of this terrible judgment.
Two earlier judgments of the Supreme Court should have given the judges courage to prevent the meaningless arrests on sedition charges. The first was Bilal Ahmed Kaloo vs State, where the accused exhorted his fellow Kashmiris to take up arms against the State for azadi. He was arrested and convicted under the sedition law. However, when the matter reached the Supreme Court, the judges asked if he had engaged in or incited an act of violence, and on receiving an answer in the negative, promptly acquitted the accused. A similar case from Punjab, Balwant Singh vs State, also resulted in the acquittal of the accused who had shouted pro-Khalistani slogans. The only charge against him was that he had raised these slogans. The principle, then, is this: strong words for the overthrow of the State are not enough to invite the charge of sedition; it requires violent action threatening the government in power. The use of hateful words against a government is not even a crime, and is completely protected by Article 19(i)(a) of the Constitution— Freedom of Speech and Expression. The judiciary has a lot of catching up to do. Judges must now act decisively. They must declare Sec. 124A unconstitutional, and by doing so, erase from the statute book one of the darkest blots on our democracy.
When a politician wins a huge mandate at the polls and continues winning, judges seem to lose their determination to speak truth to power