In its defence of sedition law, the Centre, through the Press Information Bureau, chose to rebut the US-based NGO Freedom House’s ranking of India’s level of freedom thus:
“‘Public Order’ and ‘Police’ are state subjects under India’s federal structure of governance. The responsibility of maintaining law and order, including investigation, registration and prosecution of crimes, protection of life and property etc. rests primarily with the concerned State Governments. Therefore, measures as deemed fit are taken by law enforcement authorities to preserve public order.”
The Centre’s defence of the sedition law, making the state governments scapegoats for its misuse, is amusing. Under Section 124A of the Indian Penal Code, whoever, by words, either spoken or written, or by signs, or by visible representation, or otherwise, brings or attempts to bring into hatred or contempt, or excites or attempts to excite disaffection towards the Government established by law in India shall be punished with imprisonment to which fine may be added or with fine. The imprisonment may be either for life or may extend to three years. The words “Government established by law in India” will bring within their ambit, both the Central and the state governments. As law and order is a state subject, the state governments, in the normal course, are called upon to opine in a particular case, whether an action brought into hatred or contempt or excited disaffection towards the Central government, irrespective of whether the Central agencies have a different view on it.
In practice, however, the state governments are guided by the Centre’s informal advice on the matter, and sometimes, may be proactive without such advice, just to please the ruling party at the Centre. Whatever the compulsion, can the Centre appear to absolve itself from the consequences of wrongful use of the sedition law?
Centre cannot pretend it has no control
The use of sedition law by the Delhi Police and by the National Investigation Agency in many cases is ample proof that the Centre’s claim is entirely deceptive. As both the Delhi Police and the NIA are under the Centre’s jurisdiction, the Centre cannot pretend that it has no control over measures that are deemed fit by law enforcement authorities to preserve public order.
The arrest of Disha Ravi, the young environmental activist, by the Delhi Police for sedition, clearly shows that the Centre cannot absolve itself from such professional decisions taken by the agencies under it. The Delhi Police went beyond its territorial jurisdiction to arrest her in Bengaluru and brought her to Delhi without even a transit warrant from a local court. One wonders why the Union home ministry did not advise the Delhi Police to desist from this misadventure, considering its “respect” for India’s federal structure.
File photo of environmental activist Disha Ravi. Photo: Mid-Day
Will the Centre at least belatedly deplore the arrests made by the state governments, in cases which did not warrant arrests, irrespective of the parties in power in those states in the light of its rebuttal of the allegation that there has been misuse of the sedition law? The release of Ravi on bail, by a Delhi court, should make the Centre introspect how international bodies could interpret it as a vindication of their view that India’s status as a free country has declined, and freedom in the country is only tentative.
Persons arrested for sedition invariably spend long periods in prisons. Judges are reluctant to give bail to people accused of sedition, with Ravi’s case being seen as an admirable exception. If the Centre is really feeling helpless about state governments misusing the sedition law against dissenters, it must immediately amend or repeal Section 124A of the Indian Penal Code – dealing with sedition – to prevent further abuse.
Sedition is classified as a “cognisable” offence, that is, the investigation process (including the powers to arrest) can be triggered merely by filing an FIR, without a judicial authority having to take cognisance. It is also “non-bailable”, that is, the accused cannot get bail as a matter of right, but is subject to the discretion of the sessions judge.
No doubt, Section 124A is followed by a proviso that clarifies that mere disapprobation of the administrative or other action of the government without exciting or attempting to excite hatred, contempt or disaffection, do not constitute an offence under this section. The reading down of the provision by the apex court in Kedarnath to mean that only those expressions that either intend to or have the tendency of causing violence are punishable has not been able to prevent its abuse. Neither the proviso, nor the Supreme Court’s order, could halt the misuse of the law against dissenters.
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Sedition cases were filed against six journalists and former junior foreign minister, Shashi Tharoor, on January 28 across five states where the police are controlled by the same party which rules the Centre. It is naïve to believe that the timing of the filing of these FIRs is coincidental, even if based on individual complaints to authorities. Interestingly, when the case was heard by the Supreme Court on February 9, it was the solicitor general Tushar Mehta who responded to writ petitions filed by those accused in the FIRs, clearly suggesting that the Centre found merit in these FIRs filed by different states, including the Delhi Police.
The taking over of the Bhima Koregaon case by the NIA from the Maharashtra Police after the change of government in the state makes it appear that the Centre actively backs the pursuit of sedition cases against dissenters. But by dropping the sedition charge against the arrested activists, the NIA perhaps strengthens the Centre’s latest stand that it has nothing to do with the sedition cases initiated by the state governments.
Under Section 196 of the Code of Criminal Procedure, courts cannot take cognisance of any offence punishable under Chapter VI of the Indian Penal Code – which includes Section 124A – “except with the previous sanction of the Central government or of the state government”. The role of the Central government in granting or refusing sanction to prosecute a person accused of sedition is clearly envisaged under the law, even though in most cases registered by the state police, it is the state government which grants this sanction.
What a database tells us
According to Article 14’s recently-released sedition database, 65% of nearly 11,000 individuals in 816 sedition cases registered since 2010 were implicated after 2014. Opposition politicians, students, journalists, authors and academics were among those charged with sedition. In addition, 96% of sedition cases filed against 405 Indians for criticising politicians and governments over the last decade were registered after 2014, with 149 accused of making “critical” and/or “derogatory” remarks against Prime Minister Narendra Modi, and 144 against Uttar Pradesh chief minister Yogi Adityanath.
The Chief Minister, Uttar Pradesh, Yogi Adityanath calls on the Prime Minister, Shri Narendra Modi, in New Delhi on December 02, 2017. Credit: PMO India
There was a 28% increase in the number of sedition cases filed each year between 2014 and 2020, compared to the yearly average between 2010 and 2014. Much of this increase is due to a surge in sedition cases after protest movements, such as those against the Citizenship Amendment Act (CAA) and the rape-and-murder of a Dalit teen at Hathras in UP. During the anti-CAA protests, 22 of 25 sedition cases involving 3,700 people were filed in BJP-ruled states. After the Pulwama attack, 26 of 27 sedition cases involving 42 persons were filed in BJP-ruled states. Of the five states with the highest number of sedition cases, a majority were registered during the BJP’s time in power in four of them – Bihar, Uttar Pradesh, Karnataka and Jharkhand.
In Uttar Pradesh, 77%of 115 sedition cases since 2010 were registered over the last four years, since Yogi Adityanath became the chief minister. More than half of these were around issues of nationalism: against those who protested the CAA, for allegedly shouting “Hindustan Murdabad”, allegedly celebrating the Pulwama attack and India’s loss in the 2017 ICC Champions Trophy, according to the Article 14 database.
According to Lubhyathi Rangarajan, who heads the sedition database, in each case of sedition, there is a back-story, a political build-up which explains its eventual outcome. In the Aseem Trivedi case, there was a huge backlash against his arrest for sedition in 2012, which made the then UPA government at the Centre advise the state government to withdraw the case. In Kudankulam, the then prime minister, Manmohan Singh’s remarks against the “foreign hand” – a euphemism against the protest movements against the nuclear project there – influenced the state government’s decision to charge several protesters with sedition. In the case of Kanhaiya Kumar, the Aam Aadmi Party government in Delhi granted sanction to prosecute him – going against the advice of its standing counsel in Delhi high court, Rahul Mehra – ostensibly on the ground that it does not interfere with the legal process in principle. The decision to withdraw sedition cases against the accused in the Pathalgadi cases in Jharkhand, after the change of government there, is an instance of how a state government can take its differences with the Centre on sedition to its logical culmination.
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The Centre’s defence of the sedition law on the ground of public order also raises the question of whether such a plea is tenable. The Centre’s claim is based on the Supreme Court’s reasoning in the Kedarnath case, in which it upheld the constitutionality of Section 124A under the exceptions to the freedom of speech under Article 19(2) of the Constitution. In a recent article, the Kedarnath judgment has come under criticism for its inability to take into account arguments based on necessity, proportionality and the chilling effect on speech, which are post-Kedarnath legal developments.
More importantly, the inclusion of the word ‘sedition’ under the exceptions in Article 19(2) was rejected by the Constituent Assembly, while finalising the draft constitution. But the first amendment to the constitution, inserting the words “public order” in Article 19(2), enabled the return of sedition under a different name, although the then prime minister, Jawaharlal Nehru, who authored the first amendment, did not intend it. Nehru was of the view that Section 124A should have no place both for practical and historical reasons, in any body of laws.
“The sooner we get rid of it the better,” he had said in parliament, during the debate on the first amendment. One of the legacies of Nehru was that his government did not follow up what he promised in 1951, despite being in power till 1964. The Narendra Modi government, which is keen on erasing Jawaharlal Nehru’s legacy in many fields, should, therefore, consider repeal of Section 124A a fit case, if only to prove Nehru wrong.