Legislation and Government Policy

Sedition: The Law Itself Is The Problem

Mahtab Alam

sedition post

Ever since its inception in 1860, the contentious law against sedition (section 124-A of Indian Penal Code) has been used against thousands of people. During the colonial period, the law was extensively used by the British government to stifle dissent and curb the independence movement. Among the notables who were charged under the law during this period include a galaxy of freedom fighters like Bal Gangadhar Tilak, Annie Besant, Mahatma Gandhi, Maulana Abul Kalam Azad and Jawaharlal Nehru, to name a few.

Gandhi, when charged under the law, termed it as the “prince among the political sections of the Indian Penal Code designed to suppress the liberty of the citizen.” Nehru, who was charged and convicted under the law, was of the view that this “particular Section (124A IPC) is highly objectionable and obnoxious and it should have no place both for practical and historical reasons, if you like, in any body of laws that we might pass. The sooner we get rid of it the better.” Despite that, the law not only continues to exist in our statute books but has also been brazenly used ever since India’s independence. What is important to note is that those who were charged under the law during the colonial regime were seen as Rajdrohi (one who rebels against the state or government of the day), and in post-Independent India are seen as Deshdrohi (anti-National), though nowhere in the law is it stated that sedition is an act against the country or nation. In common parlance, thanks to the media and its deliberate misinformation campaign, the ‘government’ has now become synonymous with the country.

While there lies a huge difference between someone being ‘seditious’ and ‘anti-National’, someone being anti-government or anti-establishment does not necessarily mean that the same person is also ‘anti-national’. This deliberate misinformation has created an environment where it becomes almost impossible to defend someone charged under the draconian law. The moment someone is accused of being seditious or charged under it, s/he is assumed to be guilty not just in the eyes of the public but also with a section of the legal fraternity, despite it being against the very cardinal principle of justice — innocent until proven guilty beyond reasonable doubt. The recent incident of the Hubli Bar Association passing a resolution to the effect that none of its lawyers would appear for the three Kashmiri students accused of Sedition is a case in point.

What is even more important is that a cursory glance of the sedition cases reveal that most of these have no grounds for being charged under section 124 A of the IPC. As I begin writing this piece, the news came out that noted lyricist and former Rajya Sabha MP Javed Akhtar has been charged with sedition in Bihar. According to news reports, the complaint was filed by a local lawyer Amit Kumar, before the court of the Chief Judicial Magistrate of Begusarai, Thakur Aman Kumar. The complaint refers to a tweet by Akhtar, alleging that his remarks were seditious and promoted religious hatred. The tweet, which was posted on February 27 read, ”So many killed, so many injured, so many houses burned, so many shops looted so many people turned destitute but the police has sealed only one house and are looking for its owner. Incidentally, his name is Tahir. Hats off to the consistency of the Delhi police.” One just fails to understand how could this tweet or remark be seditious.

It can be recalled that, in Kedar Nath Singh vs State of Bihar (1962), a five-judge bench of the apex court had ruled that:

“(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 against the Government established by law or with the intention of creating public disorder. The Court, has, therefore, the duty cast upon it of drawing a clear line of demarcation between the ambit of a citizen’s fundamental right guaranteed under Art. 19(1)(a) of the Constitution and the power of the legislature to impose reasonable restrictions on that guaranteed right in the interest of, inter alia, security of the State and public order.”

Inspite of this, not just the police but the courts as well have been admitting cases under Sedition on flimsy grounds such as Akhtar’s case above. Instead of outrightly rejecting the matter, it was admitted by the court and, as per media reports, it is likely to come up for hearing on March 25.

Let me cite another recent case in which a local court in Bihar acted in a similar manner. In October, an FIR was registered in Bihar’s Muzzaffarpur district against 49 persons, including historian Ramachandra Guha, film maker Mani Ratnam and actress Aparna Sen, who wrote an open letter to Prime Minister Narendra Modi raising concern over the growing incidents of mob lynching. The case was registered after an order was passed by the chief judicial magistrate of Muzaffarpur, Surya Kant Tiwari, acting upon a petition filed by a local lawyer Sudhir Kumar Ojha. According to the petitioner, the accused “tarnished the image of the country and undermined the impressive performance of the Prime Minister” besides “supporting secessionist tendencies”. After much criticism, the case was closed by the state police, calling it false. However, what is to be underlined here is that a court of law passed such an order. Moreover, to think that the misuse of 124A is just limited to Bihar would be a huge mistake. As per latest available information, the five top most states in India, in terms of using the sedition law in the recent years (2014-2018) are : Assam, Jharkhand, Haryana, Bihar and Kerala.

The Bidar case in Karnataka is yet another example of the flimsy grounds on which the law is used. On January 26, the Bidar police registered a case of sedition against the principal and other authorities of a local school for allowing its students to stage a drama which allegedly portrayed Prime Minister Narendra Modi in poor light in connection with the Citizenship (Amendment) Act and National Register of Citizens. They were later arrested and released on bail after spending more than two weeks in Jail. Moreover, the minor students who took part in the drama were also subjected to questioning several times. Only recently, the district and sessions court in Bidar noted that the drama did not cause any disharmony in society and cited lack of grounds for sedition.

Another recent case is that of activist Amulya Leona, who raised ‘Pakistan Zindabad’ slogans along with ‘Hindustan Zindabad, etc. during an anti-CAA rally in Bengaluru’s Freedom Park on February 20. Her father’s house was later attacked and members of the Bajrang Dal and other Hindutva outfits threatened them with ‘dire consequences’. A Sri Ram Sene leader Sanjeev Marady announced a bounty of Rs 10 lakh for anyone who would kill her. Not only that, B.C. Patel, the agriculture minister of Karnataka also called for a law to “shoot at sight” those who spoke against India or raised pro-Pakistan slogans. This despite the fact that the apex court in Balwant Singh v State of Punjab (1995), indicated that mere sloganeering is not a seditious crime. In this case, the accused was charged with sedition for shouting slogans such as “Khalistan Zindabaad” and “Raj Karega Khalsa” outside a cinema hall after Indira Gandhi’s assassination. The court noted:

“It appears to us that the raising some slogans only a couple of times by the two lonesome appellants, which neither evoked any response nor any reaction from anyone in the public can neither attract the provisions of Section 124A or Section 153A IPC. Some more overt act was required to bring home the charge to the two appellants, who are Government servants. The police officials exhibited lack of maturity and more of sensitivity in arresting the appellants for raising the slogans – which arrest -and act the casual raising of one or two slogans – could have created a law and order situation, keeping in view the tense situation prevailing on the date of the assassination of Smt. Indira Gandhi. In situations like that, over sensitiveness sometimes is counter-productive and can result in 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 as by law established nor could the same give rise to feelings of enmity or hatred among different communities or religious or other groups.”

One can draw a long list of people who have been been charged under the law against sedition in the recent years. To name a few, politician Simranjit Singh Mann (2005), medical doctor and human rights activist Binayak Sen (2007), thousands from Kudankulam in Tamil Nadu (2011), cartoonist Aseem Trivedi (2012), student leader Kanhaiya Kumar and others (2016), hundreds of tribals of Pathalgarhi in Jharkhand (2018), Chattisgarh journalist Kamal Shukla (2018), Assamese scholar Hiren Gohain (2019), students activist Sharjeel Imam and anti-CAA protesters in Azamgarh (Uttar Pradesh) have been charged under the law. An analysis of these cases indicates that the (mis)use of the law against Sedition in Independent India is not different from that in the colonial era. As per the latest National Crime Records Bureau (NCRB) data, the conviction rate in these cases is very low. According to the NCRB, only four people were convicted in four years (2015-2018). It can be noted that as per the available data, as many as 233 Sedition cases were registered between 2014 to 2018. The NCRB data also informs us that while in the last four years, 191 cases were registered, trials in only 43 cases were completed during the same period. It should be noted that while the conviction rate might have been very low, it serves the prime purpose for which the law of against Sedition was designed — to stifle dissent and curb freedom of expression.

Once charged under the law, it becomes very difficult to avail bail while the trial stretches on for years. The recent case of the three Kashmiri students accused of sedition in Hubli (as mentioned above) is a good example. The local court rejected their bail plea saying that “(t)he safety and security of this Country gets priority over all. We must allow the investigation agency to do its job without any body’s intervention, by considering the nature of the allegation, until completion of the Investigation, the petitioners are not entitled for the bail as prayed therein, even on any ground they are not made out of the grounds to grant the bail.” In many ways, the process itself ends up becoming the punishment. Moreover, even if most of those accused of Sedition are acquitted at the end of the long (financially as well as emotionally) draining legal battle, the process ensures that the same person will think twice before using the constitutionally guaranteed right to freedom of expression. It will also have a chilling effect on people at large. Thanks to the rampant (mis)use of the law, it is being used to create fear among the masses of being involved in long drawn out cases charged for speaking ‘too much’ or raising their voice, even for constitutionally legitimate concerns. Furthermore, due to the demonisation and media trail of the accused in these cases, life becomes very difficult even if they are acquitted by the court. They are constantly watched over and seen suspiciously (with their allegiance in question) both by state agencies as well as the society. Moreover, it has been observed that the law is often selectively used to target and criminalise marginalised and vulnerable communities such as Dalits, Tribals and Muslims.

Given the scenario, one would have thought that the apex court would come to the rescue but, as advocate Chitranshul Sinha explains in his book The Great Repression: The Story of Sedition in India, even the Court has failed to act in this regard. He draws our attention towards a PIL filed in the apex court by the NGO Common Cause and Kudankulam activist S.P. Udayakumar. The prayer before the court was to lay down specific guidelines for sedition cases in the absence of specific guidelines. As Sinha rightly points out, specific guidelines are urgently needed because the Kedar Nath judgement “does not provide (guidelines) for pre-arrest requirements and compliances. Any person arrested for sedition will have to obtain bail, attend proceedings, make themselves present for investigations, etc. before the chargesheet is filed or the case is closed.”

A similar if not identical PIL was filed in the Supreme Court recently. According to Live Law, the petition was filed by activist Yogita Bhayana, in the wake of recurring instances of sedition FIRs, particularly the recent case registered in Bidar. The Court refused to entertain the PIL, which sought guidelines for registering criminal cases for sedition under Section 124A Indian Penal Code. The bench comprising Justices A M Khanwilkar and Dinesh Maheshwari reportedly said, “let the aggrieved party come before the Court.” This was a bit strange on the part of the court because when S.P. Udayakumar, an aggrieved person, had approached the apex court, the matter was disposed of saying “we don’t have to explain the sedition law. It’s already there in the five-judges constitution bench judgement in Kedar Nath Singh v state of Bihar of 1962.” But fact of the matter remains that the said guidelines have hardly ever been followed.

In my understanding, there is no other way to stop it but to strike down section 124A from the statue book. That’s because the problem is not just of its rampant (mis)use, but the law which is a problem in itself. And as long as it is a part of the IPC, it is bound to be misused. Unfortunately, no ruling party or government is willing to remove it as the very law comes handy while targeting dissidents and political opponents. There is no surprise that in the recent years when, at least on two occasions (once during the Congress led UPA government in 2011 and once during the BJP led NDA rule in 2015), attempts were made in the parliament either to fully repeal the law or amend it, the proposal was either not entertained or sidelined by making some false promise. As recently as July 2019, the government informed the parliament that, ”there is no proposal to scrap the provision under the IPC dealing with the offence of sedition.” According to the Minister of State for Home Affairs Nityanand Rai, “there is a need to retain the provision to effectively combat anti-national, secessionist and terrorist elements.” However, there is hardly any data explaining how many ‘anti-national’, ‘secessionist’ and ‘terrorist elements’ have been convicted under the law.

(Mahtab Alam is a Delhi based multilingual journalist. He writes on issues related to politics, law, media, human rights and tweets @MahtabNama. )

Editorial Assistance – Bharat Harne