Sedition cases: Arrest false complainants and prosecutors, not critics

It is the duty of civil society to find an institutionalised solution to abuse of sedition law

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Months of incarceration, struggle for bail, a long-drawn legal process – this has been the fate of scores of activists, journalists, social media writers, innocent WhatsApp forwarding people, and tweeters in India since 2014

A BJP man filed a complaint, police in Delhi booked a case of sedition against Vinod Dua, a senior journalist. The Delhi High Court stayed any coercive action. Within hours another BJP man filed a complaint in Himachal Pradesh, another case of sedition was booked. Reason? Dua’s criticism of Centre for its anti-constitutional CAA. Himachal Pradesh is ruled by the BJP. Although Delhi is ruled by the AAP, the Centre controls the police through its administrator.

In Andhra Pradesh the police on their own, even without a complaint, filed a suo motu sedition case against Raghu Rama Krishna Raju, a YSRCP MP. Reason? He filed a petition for cancellation of bail to Chief Minister Jaganmohan Reddy, who is accused in more than two dozen criminal cases.

BJP Lakshadweep unit president Abdul Khader filed a complaint against Aisha Sultana, a filmmaker, and police promptly booked a sedition case. Reason? She said the Union Territory is witnessing hundreds of COVID infections every day because of the administrator’s actions.

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Earlier in Belgaon, police filed sedition cases against a school, its teachers, and the mother of a child over a small anti-CAA skit. The action was based on a complaint by a BJP worker.

Following a complaint by the ABVP, which is affiliated to the BJP, Amnesty International India was booked for sedition and ‘promoting enmity’ by the Bengaluru police on August 17, 2016.

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The website Article 14 recently tracked sedition cases filed between January 1, 2010, and December 31, 2020. It found that 96 per cent of the cases filed against 405 Indians for criticising political leaders and governments over the last decade were registered after the Narendra Modi government first came to power in 2014.

Months of incarceration, struggle for bail, a long-drawn legal process – this has been the fate of scores of activists, journalists, social media writers, innocent WhatsApp forwarding people, and tweeters in India since 2014.

Even writing a letter against a crime or reporting a rape is sedition according to some rulers. If not blatant abuse of a draconian law, which even the British rulers rarely resorted to, what is this?

According to established criminal justice norms and provisions of the Code of Criminal Procedure, an investigating officer should personally satisfy that the salient points of a complaint should attract the ingredients prescribed in definition of ‘sedition’ under Section 124A and criterion developed by the Supreme Court in several judgments. S/he should act independently and not under the instructions of superiors or political bosses.

Section 124A of the IPC says: 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 for life, to which fine may be added, or with imprisonment which may extend to three years, to which fine may be added, or with fine.

Explanation 1.—The expression “disaffection” includes disloyalty and all feelings of enmity.

Explanation 2.—Comments expressing disapprobation of the measures of the Government with a view to obtain their alteration by lawful means, without exciting or attempting to excite hatred, contempt or disaffection, do not constitute an offence under this section.

Explanation 3.—Comments expressing 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.

Attempts to bring into hatred or exciting disaffection towards government is the main component. The meaning of definition and the three explanations show mere criticism is not sedition. Explanations 2 & 3 specifically exclude even disapprobation of measures of government does not amount to sedition.

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In Kedar Nath Singh vs State of Bihar (1962), five judges of the Supreme Court made it clear that “allegedly seditious speech and expression may be punished only if the speech is an ‘incitement’ to ‘violence’, or ‘public disorder’”. Every prosecution under Sections 124A and 505 of the IPC must be in strict conformity with the scope and ambit of said Sections as explained in, and completely in tune with the law laid down in Kedar Nath Singh. (Vinod Dua vs Union of India [WP(Crl) .154 of 2020] by Justices Uday Umesh Lalit and Vineet Saran)

Whether police officers who charge critics with sedition cases at the behest ruling party henchmen, read or understand the language of sedition, or simply follow the instructions, don’t they have a duty to follow the Supreme Court judgment, which is law for the entire country according to Article 141 of the Constitution?

Recently the SC came down heavily against abuse of criminal charge of sedition in two cases. In Dua’s case, the false charge against his criticism of CAA was quashed. The FIR against YSRCP MP Raghu Rama Krishna Raju was found prima facie not giving rise to ingredients essential for jailing him. In the second case, the SC warned that the government must review and settle the limits of this draconian law. Will the rulers listen?

The BJP’s Lakshadweep unit president, Abdul Khader, called Aisha Sultana’s criticism of the UT administration an anti-national act that tarnished the “patriotic image” of the Centre. The sedition law is not intended to protect the image of governments.

According to another BJP man’s understanding of the law, a mere criticism of the prime minister and the central government referring to their CAA policy is sedition.

These are a few examples of cases that were prominently reported in traditional or social media that can never constitute sedition. Any ordinary educated man with reasonable understanding of English cannot conclude these acts constitute sedition.

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Dua was saved from incarceration by the judiciary. MP Raju suffered in custody before the SC gave him bail. But these two and their families continue to face harassment.

In their 117-page judgement in Dua’s case, the SC explained, “Every journalist will be entitled to protection in terms of Kedar Nath Singh, as every prosecution under Sections 124A and 505 of the IPC must be in strict conformity with the scope and ambit of said Sections as explained in, and completely in tune with the law laid down in Kedar Nath Singh.”

In Common Cause v. Union of India, (2016), the SC said: “We are of the considered opinion that the authorities while dealing with the offences under Section 124-A of the Penal Code, 1860 shall be guided by the principles laid down by the Constitution Bench in Kedar Nath Singh v. State of Bihar.”

When ruling party workers, ministers and police officers blatantly violate the human rights of critics, journalists and ordinary people, why should they not be prosecuted for false cases that result in deprivation of personal liberty, which is guaranteed under Article 21?

Why doesn’t anything happen if Supreme Court’s directions are not followed? It is the duty of civil society to find an institutionalised solution to abuse of sedition law.

Someone may give false complaint for his own selfish reasons, though ingredients of definition of sedition are absent. How can an investigating officer book a case when the complaint itself does not reflecting basic elements of the alleged crime of sedition. Here an essential filter is not working. It should have been checked out when the case reaches the magistrate, who should have questioned the police for booking a baseless case, or at least when bail application was considered. Unless the courts intervene, the victim is left in jail. The system should accommodate damages due to loss of liberty and reputation from false charges, and the authorities – police officers or their bosses who instructed them to book false cases should be prosecuted.

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