In a panel discussion, organised by the Delhi High Court Women Lawyers Forum, Justice (retd.) Deepak Gupta of the Supreme Court talked about the Right to Dissent in India and the court’s response to sedition cases in the country.
The sedition law (section 124A of the Indian Penal Code), punishes any Indian citizen who brings or attempts to bring into hatred or contempt, or excites or attempts to excite disaffection towards, the Government established by law in India. The provision encompasses a wide range of punishment from three years to life imprisonment and in some cases only fine.
He said, “Right to dissent is a hallmark of the democracy. Even if one party comes into power, it is not immune to criticism and right to dissent allows such criticism. Look at the conviction rate, it is so low. One’s reputation is destroyed even if one is not convicted”.
While India being a democratic country lets its citizens enjoy freedom of speech and expression, Justice Gupta opined that the term disaffection is so broad, that could be grossly misused and anything could amount to sedition. “There can be no progress if we stifle dissent”.
Highlighting the current state of affairs, Justice Gupta also shared his apprehension regarding cracking jokes as there is a high probability of people getting offended by it. He stated that in the past nine to ten years, Indians have lost their sense of humour. In response to whether the Supreme Court of India should take up cognisance of stifling of right to dissent and not be a mute spectator, Justice Gupta stated that the court cannot take suo moto cognisance in every case.
At this point, Advocate Manali Singhal referred to how her daughter Shreya Singhal was of the same age as Disha Ravi (21 years) when she had challenged section 66A of the Information Technology Act and that now, any dissent against the Government is seen as anti-national. In Shreya Singhal vs UOI (2015), the top court had struck down section 66A as unconstitutional on grounds of violating the freedom of speech guaranteed under Article 19(1)(a) of the Constitution of India.
The discussion moved to the laws of arrest in India, on which Senior Advocate Rebecca John shed some light. Referring to the arrest of Disha Ravi in the toolkit case, she said that a transit remand was not obtained and according to a Delhi High Court judgment, a transit remand order is mandatory when an accused is transferred from one jurisdiction to the other.
The criminal law expert said that once a person is arrested by an agency that does not belong to the person’s jurisdiction, he/ she must be asked for a lawyer of their choice. “I don’t understand, when she had her lawyer of choice, why was he not brought in. There was no transit remand order also taken. The Delhi High Court order of 2019 categorically states that transit remand order is required, unless exigencies exist”, she asked rhetorically.
She also emphasised on the role of the Magistrates to carefully look at the FIRs and case diaries to see the nature of investigation and whether further remand is needed or not. She opined that such judicial functions are treated casually nowadays. She also cited an example of an individual who was arrested under bailable sections but yet, remanded for 8 days in custody. She added that these problems are occurring in a big city like Delhi which is not an obscure part of India.
“Personal liberty is intrinsically related to procedural law”, she remarked. UAPA is grossly misused- academics, students, policy makers, all are getting apprehended under this stringent regime. Further, she said that the Unlawful Activities (Prevention) Act defines terrorist activities under section 15 and those are violent physical acts. But people who have made mere speeches are pushed to jails for speeches under UAPA. She asserted that, “this makes bail a virtual impossibility under section 43 D (5)”.
She weighed in on the concept of bail stating that it is treated as the be all and end all, rather than treating it as a right. According to John, courts are hesitant to grant bail even though bail is a right and jail is an exception. She also said that people in India should learn to manage criticism more constructively and persons critiquing the establishment should not be seen as anti-national elements.
She ended on a note that the country is in a dire need of judicial leadership and that laying down principles against invocation of UAPA and sedition laws will send a strong message that will permeate downwards. “UAPA, sedition laws are all violent acts, it punishes the mind, speech, etc. and that cannot be the intent of law”, she noted.
Chitranshul Sinha, an advocate and author of the book “The Great Repression”, was also one of the speakers on the panel to discuss the right to dissent and the concept of sedition. He explained that mere sloganeering does not constitute as sedition. He provided the viewers with an example of some Kashmiri students who supported Pakistan in a cricket match and were later booked under sedition.
He importantly pointed out that the State cannot be threatened by an individual act. “Our democracy is not that brittle”, he claimed. Elaborating further on the spirit of the sedition law, he said that it cannot be invoked unless there is a danger of disintegration of our Republic. The impugned act must directly affect the State to invoke sedition.
‘Dissent is our duty. The government is for the people, citizens are the masters of the Government. There should be stringent guidelines to allow only the State to file sedition cases and not individuals”, he opined. Going a step further, he said that he believes that there is no place for a law like this in a democracy.
During an interactive session between the panelists and the viewers, a question was posed to Justice Gupta about the overburdened subordinate judicial officers who are not able to discharge their functions properly. Justice Gupta disagreed and said that some of the recent judgments like the one delivered in favour of Priya Ramani and the sedition verdict by Additional Session Judge Dharmendra Rana of the Patiala Court is commendable and correct in law.
In MJ Akbar vs Priya Ramani, Justice Ravindra Kumar Pandey acquitted Ramani and held that women subject to sexual harassment can approach the courts even after decades and that the right to reputation cannot be protected at the cost of right to life. On the other hand, in the sedition judgement, ASJ Rana held, “The law of sedition is a powerful tool in the hands of the state to maintain peace and order in the society. However, it cannot be invoked to quieten the disquiet under the pretense of muzzling the miscreants”.
Related:
Toolkit content does not incite violence, not seditious: Former SC Judge Deepak Gupta
Does the new SC judgment offer hope for bail under UAPA?