A protest demanding Kanhaiya Kumar’s release in New Delhi, March 2, 2016 (Photo: Reuters)
THE SWITCH IN the government’s position, as stated in a 19-page written submission on May 7 that held a 1962 Supreme Court ruling on sedition to be a “good law” needing no reconsideration and a much briefer affidavit a few days later, could not be more dramatic. There was a “divergence of views” among jurists, academics and intellectuals and while most agreed on the need for statutory provisions to protect the sovereignty and integrity of the country, concerns have been raised with regard to its application and abuse for purposes not intended by the law, said the fresh submission by the Union Ministry of Home Affairs.
In an unusual reference, the affidavit drew the court’s attention to Prime Minister Narendra Modi being cognisant of differing views and having spoken in favour of protecting civil liberties, respecting human rights and providing meaning to constitutionally cherished freedoms. “He has repeatedly said that one of India’s strengths is the diverse thought streams that beautifully flourish in our country,” the affidavit signed by a senior home ministry official said. The affidavit further stated that the prime minister felt India needed to work harder to shed its colonial baggage and reminded us that 1,500 outdated laws have been scrapped since 2014-15. Significantly, the Centre said the laws done away with “reeked of a colonial mindset and thus have no place in India.” Iterating that the government remains committed to maintaining and protecting India’s sovereignty, the government said it has decided to re-examine and reconsider provisions of Section 124A of the Indian Penal Code which can only be done before the competent forum. The fresh submission ended by urging the apex court not to consider the contentious matter any further and essentially to leave it to Parliament to apply necessary correctives. The Supreme Court bench headed by Chief Justice NV Ramana did not dispute the Centre’s contention, but on May 11 ruled that no FIRs will be registered until the revision promised by the government is concluded. By this act, the sedition law stands immediately suspended. As things stand, the Centre’s move might well have pre-empted the court striking down or amending the sedition law.
The Centre’s implicit admission that the sedition law may, at the least, need restrictive provisions to curtail its misuse and ensure it is invoked only in cases of serious provocation and offences sparked a heated discussion. Was it, as some opposition leaders suggested, because India is being criticised for “democratic backsliding” by a section of Western commentators, media and non-government agencies? Did it have more to do with allegedly politically inspired action against Bharatiya Janata Party (BJP) leaders in opposition-ruled states, as in the case of Delhi leader Tajinder Bagga (charged with promoting enmity and criminal intimidation) or that of MSME Minister Narayan Rane (wanton provocation and public mischief)? The questions can be debated, even though conclusive proof may be lacking, but the pointed reference in the home ministry’s affidavit to the need to shed “colonial baggage” was clearly a political signal. It was also quite intriguing for the Modi government’s critics, who have repeatedly attacked the sedition law for being a vestige of British-era provisions once used against Mahatma Gandhi and Bal Gangadhar Tilak and persisted with by the current regime to silence dissent. Seen through a political prism, the Centre has moved to avoid being seen as a holdout against enhancing personal freedom by agreeing to consider the ambit of laws dealing with offences against the state. Rather, the submissions, by invoking the prime minister’s authority, seek to argue that the government has proactively done away with archaic and suffocating laws, as well as getting rid of 25,000 compliance burdens. It has decriminalised various offences to make good on its promise to shrink the imprint of government in the daily lives of citizens.
Officials aware of the discussions within government said the relook at the sedition law will be part of a scrutiny of related laws to ensure there is no needless duplication and Sections such as 121 (attempting, waging or abetting war against the government), 122 (collecting arms and organising men) and 123 (concealing the existence of a design to wage war) would be considered in totality along with 124A and its provisions. The idea is to clearly, or closely, define what constitutes an act that amounts to exciting disaffection against the government and is against the interests of public order as set out in the law. In its approach to the sedition debate, a parallel can be seen to the Centre’s stand on the Armed Forces Special Powers Act (AFSPA) which has been withdrawn from large parts of the Northeast. The decision ran contrary to the perceived “strong state” narrative that has seen BJP’s ideological adversaries accuse the government of being heavy-handed and keen to impose a unitary, one-size-fits-all social and political construct that leaves little room for local and regional diversity.
At the heart of the decision to revisit the sedition law is an adroit attempt to defuse the politically damaging charge of petitioners challenging Section 124A that the provision was being used even against people who made a very strong speech or used vigorous words to criticise the government. Though several opposition-ruled states have targeted critics, including people with no political affiliation, the pleas before the Supreme Court are intended to put the Modi government and BJP in the hot seat. Although its contention that there is no need for a revision of the 1962 Kedar Nath Singh ruling has been dramatically altered, the lengthy written submissions of Solicitor General Tushar Mehta do address the issue in detail. Mehta has pointed out that the pleas in fact do not contend that a speech or piece of writing that constitutes exciting people to violence or to generate a tendency to create public disorder should not be outside the purview of “sedition”. The solicitor general argues that harsh or even rude criticism of the government is already outside the scope of the law and that the 1962 ruling does indeed consider the need to protect free speech. In setting out legal precedents, Mehta recalls the courts have held instances such as a speech in support of the formation of Jharkhand, or even raising slogans like “Khalistan Zindabad” and “Raj Kayyam Karo” after the assassination of Indira Gandhi, did not amount to sedition keeping in mind the entire context of the incident. In the case of Khalistani slogans, the courts ruled that the act of two “lonesome appellants” who did not cause any wider response did not pass the sedition test. Neither did a demand for the creation of Jharkhand. On the other hand, in a case relating to accused who were convicted by a trial court under TADA, the plea that they were victims of unintended circumstances while the kingpin, British national Omar Sheikh, who was released as part of a hostage swap in the IC 184 hijacking, had escaped failed to wash with the higher court. In the Binayak Sen case, it held that a person does not have to author seditious material; circulating it can be an offence. And in the Kanhaiya Kumar case, the court said there were fundamental duties for citizens along with the exercise of free speech.
The solicitor general set out the parameters, noting, “But the freedom (of speech and expression) has to be guarded against becoming a licence for vilification and condemnation of the government established by law, in words which incite violence or have the tendency to create public disorder.” In his conclusion, while stating that the Kedar Nath Singh ruling had indeed adequately applied the constitutional principles of proportionality, the fundamental freedom of speech and expression and the “countervailing interest” of the state to regulate, Mehta perhaps failed to account for instances that have recently grabbed headlines, such as the arrest of Maharashtra politician couple Navneet and Ravi Rana where the court hearing their bail pleas concluded that there was insufficient ground for the use of the sedition law.
ALTHOUGH THE SEDITION DEBATE stands on its own, it is not unrelated to the discussion on cases relating to alleged “anti-national” activities like the Elgar Parishad trial where the accused, mostly held to be of Left and ultra-Left persuasion, are facing trial. The accused include high-profile individuals like Sudha Bharadwaj, Vernon Gonsalves, Rona Wilson, Hany Babu, Varavara Rao, Anand Teltumbde, Shoma Sen and Gautam Navlakha. The accused are charged under the Unlawful Activities (Prevention) Act with conspiring to establish a “people’s government” by inciting violence, organising explosives and recruiting students from universities for their cause. The cases filed by the National Investigation Agency (NIA) have been criticised by the government’s political opponents, a section of civil society and activists, as motivated and an attempt to silence dissent. The argument that the government has singled out one section of society and a certain set of accused has also been made in the February 2020 Delhi riots cases where bail has so far been refused for accused like Umar Khalid and Sharjeel Imam. Though most mainstream parties have held back from commenting on the Delhi riots cases, the underlying accusation is that those arraigned for conspiring to cause the riots are being sorted out for their opposition to the Citizenship (Amendment) Act, or CAA. The evidence gathered by Delhi Police by way of forensics, witness statements (including protected ones) and detailed chats on WhatsApp groups is considerable, but it is the political argument that has held attention. In this aspect, the theme of ‘misuse’ of the law runs like a continuous thread and this is also where any ‘reform’ of the sedition law has its limits. The argument surfaced in the defence of JNU students (some whom are now politically affiliated) in the 2016 sedition case related to an event organised to protest the hanging of the 2001 Parliament attack convict Afzal Guru. The slogans detailed by Delhi Police that were allegedly raised in praise of Guru, stating that there are many like him to follow, and that India would be vivisected, are not likely to escape the sedition law or other similar sections of IPC dealing with “anti-national” activities. This discussion, with its polarising overtones, remains a political and ideological faultline between the government and its opponents.
In its 2018 consultation paper on sedition, the Law Commission of India examines how the law evolved in countries like the UK, the US and Australia. The comparison with India which, unlike most developed nations, continues to face a serious threat of armed insurgency and separatism is limited but can still prove instructive. The UK law commission in 1997 held there was no need for an offence of sedition in the criminal code. It was scrapped in 2009 but the relevant act did note that the “same matters are dealt with under other legislation.” In the US, the Supreme Court has distinguished advocacy to overthrow as an abstract doctrine as against advocacy to action, the Law Commission of India report notes. The US constitution prescribes doctrines like the “present danger test” and its courts have held that planning a putsch is an illegal act that does not have to reach fruition. In Australia, the term sedition was replaced by “urging violence”.
In its conclusion, the Law Commission noted that every irresponsible expression of free speech cannot amount to sedition and that since the offence is against the state, it requires a higher standard of proof. Framing a set of questions, it asks if it is not time for sedition to be redefined, to what extent there should be a right to offend, if other statutes could serve the purpose of Section 124A and what manner of safeguards could prevent misuse of the law. A “public friendly” amendment, which the commission moots, may well be on the government’s mind. Its statement before the Supreme Court, promising a relook at the sedition law, has not been made lightly and the Centre can consider the benefits of a law that lends itself to a perception of being politically coloured.
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