The nation, under NDA rule, is paying ‘homage’ to Mahatma Gandhi with false cases of sedition. This is supplemented by physical attacks by the police and goons on all sorts of ‘satyagraha.’ On January 30, 1948, one mad member of the public killed him and in the present age the ‘democratic republic’ is attacking protestors on ‘satyagraha’ against three anti-constitutional farm laws.
The latest cases of sedition relate to the Republic Day events in New Delhi. This has weakened democracy. Communal strife is being created to support pro-company and anti-farmer schemes.
Journalists Rajdeep Sardesai of India Today; Mrinal Pande of National Herald; Zafar Agha of Qaumi Awaz; Paresh Nath, Anant Nath, and Vinod K. Jose of The Caravan; Shashi Tharoor, Congress MP; and one unnamed person were booked under sedition charges for sharing ‘unverified’ news during the farmers’ tractor rally in New Delhi on January 26. No court has ever interpreted the publication of unverified news as a ‘seditious’ act; not even British rulers in pre-Independence India.
According to the Uttar Pradesh police, the accused journalists ‘instigated violence’ on January 26 through their posts on social media. This gave a new twist to the interpretation of ‘sedition.’ The charge was that ‘despite the large-scale attack on the police and causing injuries to hundreds of policemen, the accused circulated fake news in a coordinated and well-planned manner, alleging that the police have shot a person dead.’ If the media reported that a person was shot dead by the police, it could be either an error, an ‘unverified’ publication or, in a different circumstance, could even be fake news. But how could that be ‘sedition?’
Today, it is not the well-experienced Judges of the Supreme Court or the High Courts who sit in judgment but the ‘politically controlled’ police which interpret such things.
Another factual error is that it was a report on violence which had a wrong input on the ‘cause of death.’ How could that instigate violence? One cannot even call it prima facie sedition. What these journalists said about the ‘death’ could be wrong. On the same logic, making such a false accusation [against the journalists] should also be sedition.
Some people were also booked for tweeting about the death at ITO on January 26. Later, the Delhi police released CCTV footage showing that it was a tractor accident. Any mistaken or wrong report will get corrected the moment the facts come out. But how can the initial reportage attract various criminal cases, including sedition?
The charges slapped against these tweets are IPC Sections 153(A) (promoting enmity between different groups on grounds of religion, race, etc), 153(B) (imputations, assertions prejudicial to national-integration), 295(A) (deliberate and malicious acts, intended to outrage religious feelings of any class by insulting its religion or religious beliefs), 298 (uttering, words, etc., with deliberate intent to wound the religious feelings of any person), 504 (intentional insult with intent to provoke breach of the peace), 506 (punishment for criminal intimidation), 502 (sale of printed or engraved substance containing defamatory matter), 124(A) (sedition), 34 (acts done by several persons in furtherance of common intention), 120(B) (punishment of criminal conspiracy) and section 66 of the Information Technology Act (66 computer-related offences). Not even a single section is related or relevant to these cases.
Let us examine one instance: Rajdeep Sardesai tweeted, “One person, 45-year-old Navneet killed allegedly in police firing at ITO. Farmers tell me: the ‘sacrifice’ will not go in vain.” But within minutes of the police releasing the footage, Sardesai corrected himself and stated, “While the farm protestors claim that the deceased, Navneet Singh, was shot at by Delhi police while on a tractor, this video clearly shows that the tractor overturned while trying to break the police barricades. The farm protestors’ allegations don’t stand. Post mortem awaited.” It was reported that India Today decided to remove anchor Sardesai from air for two weeks and deducted a month’s salary for this tweet.
During British Raj…
Our national leader Tilak and the Father of the Nation were tried under sedition charges for ‘causing disaffection against the colonial government.’ During the trial for sedition, Mahatma Gandhi said: “Death for me would be a glorious deliverance rather than that I should be a helpless witness of the destruction of India, Hinduism, Sikhism, and Islam” He explained that his dream was for the Hindus, Sikhs, Parsis, Christians, and Muslims of India to live together in amity. Gandhi, the writer of three articles in Young India, and its publisher Shankarlal Banker were charged with sedition for ‘bringing or attempting to bring into hatred or contempt or exciting or attempting to excite disaffection towards His Majesty’s Government established by law in British India.’ They pleaded guilty and stood trial, without engaging a lawyer for defence.
Section 124(A) concerning sedition was not there in the original Indian Penal Code (IPC) drafted by Thomas Babington Macaulay. It was later added in the IPC, in 1870.
India’s sedition law was enacted by the British to suppress any dissent. This colonial relic cries for abolition. The Supreme Court has repeatedly declared that this law must be used only in really serious situations. In the 1995 Balwant Singh case verdict, the court said: “The casual raising of slogans once or twice by two individuals alone cannot be said to be aimed at exciting or attempt to excite hatred or disaffection towards the government… Section 124(A) IPC (the sedition law) would, in the circumstances of the case, have no application whatsoever.
Section 124(A) 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 government shall be punished with imprisonment for three years or for life along with a fine.”
Gandhi described this as ‘the prince among the political sections of the IPC’ designed to suppress the liberty of the citizen. and Nehru called it ‘obnoxious’ and ‘highly objectionable.’ He said ‘the sooner we get rid of the better.’
The Congress party, which fought against the sedition and secrecy laws, and resolved to remove it, did not act on the promise after Independence. In its recent election manifesto, the Congress supported scrapping the sedition law. The Prime Minister had, in one of his election campaign speeches, severely criticised the Congress and questioned its ‘intention.’
In 2016 itself, the National Crime Records Bureau (NCRB) had reported that 176 cases of sedition were registered in 29 States. The report further explained: five Union Territories reported another two. Among states, Meghalaya reported 42 cases – the maximum number by any state – followed by Jammu and Kashmir, 16. Other states that have used the sedition law include Assam and Haryana, 21 and 14 cases respectively. The report says that Chhattisgarh, Gujarat, Jharkhand, and Punjab did not use the law at all. Jharkhand slapped sedition on 3,000 people for taking part in protests against the Citizenship Amendment Act (CAA).
New Chief Minister Hemant Soren announced that he would annul these cases. The general theory is that if a law can be misused, it will be misused unabashedly. The sedition law is one such.
The ambiguous language of the law gives sweeping powers to law-enforcing wings of the government. In July 2019, the Union Home Minister, in a written answer to Rajya Sabha MP Banda Prakash of Telangana Rashtra Samithi, said the law would not be scrapped. Union Minister of State for Home Nityanand Rai said there was ‘a need to retain the provisions to effectively combat anti-national, secessionist and terrorist elements.’
When the IPC and the Unlawful Activities Prevention Act had provisions to punish those ‘disrupting the public order’ or those trying to ‘overthrowing the government with violence and illegal means,’ there is no need for Section 124(A).
International obligation for free expression
There is an international obligation to comply with. In 1979, India ratified the International Covenant on Civil and Political Rights (ICCPR), which sets forth internationally recognized standards for the protection of freedom of expression. However, misuse of sedition and arbitrary slapping of charges are inconsistent with India’s international obligation. The Law Commission, in 2018, recommended its repeal. The Law Commission had suggested invoking 124(A) only to ‘criminalize acts committed with the intention to disrupt public order or to overthrow the government with violence and illegal means.’
The Supreme Court in the Kedar Nath Vs State of Bihar (1962) case, had upheld this section. It cautioned that ‘a person could be prosecuted for sedition only if his acts caused incitement to violence or intention or tendency to create public disorder or cause disturbance of public peace.’
The Supreme Court emphasized 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.’
Unfortunately, the Supreme Court, in September 2016, did not scrap it, but reiterated these necessary safeguards and held that they should be followed by all authorities. None followed these safeguards.
Even the British had abolished it through the Coroners and Justice Act 2009. Australia removed it, but we abuse it. It is a weapon of suppression of expression and political repression.
All those who feel they are nationalists think that sedition is essential. They fail to see the real intent of stifling legitimate criticism of the government and political leaders. Britishers used it to jail Tilak and Gandhi and to stop them from writing against their rule. After independence, the rulers used it against Arundhati Roy, Binayak Sen, Cartoonist Aseem Trivedi, politicians Praveen Togadia and Simarnjit Singh Mann, a teenage girl Amulya, teenagers in Karnataka, protestors and journalists. The Tamil Nadu police suppressed agitation against the Kundankulam Nuclear Power project, to curb Naxalites.
Scores of anti-CAA protestors were arrested in UP, Assam, Karnataka and Manipur under this Draconian section. It is high time that this law is scrapped to save freedom of speech and expression.
(M Sridhar Acharyulu, Former Central Information Commissioner, Professor of Constitutional Law with Bennett University)
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