The NGO Common Cause had filed a plea in the Supreme Court seeking amendments in Section 124A of IPC. The apex court dismissed the plea on the ground that the laws laid down in Kedarnath Singh vs State of Bihar (1962) on sedition should be followed and no new amendments in procedures were warranted. We present the NGO’s viewpoint:
By Pallavi Sharma
Many legal experts are agreed that our sedition law is archaic and needs to be revised or scrapped altogether. The United Kingdom repealed its sedition law in 2009, for being obsolete in a democratic state. It is rather ironic that we, a former colony and the world’s largest democracy, continue to brandish this law in the face of our own constitutional freedom of expression. While molesting a woman in India will put you behind bars for two years at best, you can serve a lifetime in jail for sharing a post that some may find “offensive to the government” or may be deemed as being “anti-national”.
Earlier this month, the Supreme Court dismissed a petition filed by Common Cause, an NGO, seeking integration of procedural safeguards for booking someone under Section 124A of the Penal Code for “sedition”. The Court while dismissing the Common Cause petition by merely reiterating the ruling in Kedar Nath v State of Bihar (1962) missed an opportunity to whittle down an age-old draconian law that, to my mind, should not ideally find a place in a democracy to begin with.
The Common Cause petition had urged that Section 124A was being misused as a means to harass and persecute legitimate dissent. It aimed to prevent misapplication of the Section and bring about strict compliance of the Constitutional Bench dictum in the much-talked-about Kedar Nath case that narrowed down the scope of the law. In the Kedar Nath case, the Supreme Court had held that mere criticism of the government was not seditious unless it incited violence or had the tendency to disturb public order.
To this effect, directions were sought by Common Cause that before an FIR was lodged or an arrest was made under Section 124A, a prior reasoned order by the Director General of Police, the Commissioner or the Magistrate, as applicable, may be obtained certifying that the alleged seditious act either incited violence or had the tendency to disturb public order. This procedural precondition would add a layer of legitimacy to the complaints by weeding out those purely fuelled by personal or political vendetta.
Section 124A is broad and can virtually engulf any expression of opposing opinion—a poem, a movie, a speech or any anti-establishment idea—as long as it qualifies as inciting hatred and disaffection towards the government.
The Court, while dismissing the petition, reminded the authorities of Kedar Nath but stopped short of curing the mischief that exists in indiscriminate misapplication of the law inspite of decades having gone by since the Kedar Nath verdict.
The sheer number and range of cases in which sedition has been invoked since Kedar Nath, makes it hard to logically delineate a threshold for invoking this law. Section 124A is broad and can virtually engulf any expression of opposing opinion—a poem, a movie, a speech or any anti-establishment idea—as long as it qualifies as inciting hatred and disaffection towards the government. In addition, neither the Section nor the jurisprudence clarify if the government in the damning provision is central or state. This may lead to ambiguity in application of this law if the allegedly seditious act favors either the Union or the state government at the cost of condemning the other. The apex court decision of hinging sedition on incitement of violence in Kedar Nath also needs to be taken with a pinch of salt as any impassioned speech may incite violence, especially from the disagreeing segments of the audience.
NO PROCEDURAL SAFEGUARDS
Sedition is no petty crime in the Penal Code either. It carries the highest punishment as imprisonment for life, the same that is awarded for heinous crimes like rape and slave trade, to name a few. The breadth of the law, lack of procedural safeguards and awareness in police and enthusiastic trolling by vigilante brigades may lead to disastrous consequences for those who have been slapped with the charges. Even if the charges are dropped eventually, as in most cases, the accused is embroiled in an unnecessary legal battle and forced to exist in the dreaded shadow of disproportionate punishment. We are also all too familiar with Aseem Trivedi’s arrest in 2012 for his allegedly provocative and seditious cartoons against corruption, even though the charges were later dropped.
The breadth of the sedition law, lack of procedural safeguards and awareness in police and enthusiastic trolling by vigilante brigades may lead to disastrous consequences for those who have been slapped with the charges.
The Common Cause petition had sought to limit the misuse of this law by calling for exercise of due diligence and reason by law enforcement authorities before arresting anyone for sedition. The intention was to ensure that the Director General of Police, the Commissioner or the Magistrate was not only apprised of the incident but also certain of its potential to create violence and disturb public order before characterizing such conduct as seditious.
Sedition charges are more often than not wielded in the face of dissent for political mileage and publicity. It would not be off the mark to say that the law has become the easy ingredient for brewing a storm in a teacup. The National Crime Records Bureau (NCRB) Report for 2015 indicates that 73 arrests were made under 30 cases alleging sedition in 2015. But out of 11 trials completed, not a single person was actually convicted.
Of the most ridiculous cases in the last one year itself, a sedition case was filed against actor Aamir Khan and wife Kiran Rao for their comments on the rising intolerance in the country. More recently, the Kannada-actress-turned-MP Ramya fell prey to the behemoth law for saying that “Pakistan is a good country, not hell. People are just like us” on the basis of a complaint filed by an “outraged” lawyer in Karnataka. The narrative of the complaint was banal as would be expected in such cases, where tolerance towards Pakistan was equated with an insult to India and disloyalty to the reigning government.
Sedition charges were also slapped to browbeat two police constables from Karnataka who attempted to organize a mass leave in protest against long-pending welfare measures. Around this time last year, Tamil folk singer Kovan was unceremoniously picked up at midnight by the police under charges of sedition for his songs that poked holes into Chief Minister J Jayalalithaa’s liquor policy in Tamil Nadu.
Was there an urgency justifying a dramatic midnight arrest? A question that was not and probably will not be raised in the current parochial scheme of things where sedition has become synonymous with criticism.
The fact that these cases exist is itself reflective of the rampant abuse of this law. Sedition is the creation and legacy of colonialism. It was crafted to throttle dissent and rebellion of the subjects against the Crown. Now, it merely stands in guard of majoritarianism, a weapon in the hands of zealots peddling their political agenda. It should not find space in a “mature” democracy. While one can wait for the Legislature or a higher bench to deliberate on the purpose of this colonial vestige, the least that could have been done was to curb the misapplication of the law by instituting procedural safeguards before arrests, an opportunity that the apex court lost by merely leaning on Kedar Nath, without reflecting on the prevalent reality of its abuse.
—The writer is a legal consultant with the NGO, Common Cause
Lead picture: Protests by students of JNU have been dubbed as seditious and anti-national. Photo: UNI