Damodar S. Seth and Mahboob Ali Baig Sahib Bahadur in the Constituent Assembly Debates have voiced their concerns for limiting fundamental rights at length against sedition.

Quoting Damodar S. Seth “boon of fundamental rights is still beyond our reach and the making of this Constitution will prove to be of little value to this country.” Quoting Mahboob Ali Baig Sahib Bahadur “Fundamental rights are fundamental, permanent, and sacred and ought to be guaranteed against coercive powers of a State by excluding the jurisdiction of the executive and the legislature. If the jurisdiction of the executive and the legislature is not excluded, these fundamental rights will be reduced to ordinary rights and cease to be fundamental. That is the import, the significance of fundamental rights.”

It was amidst these sharp concerns voiced by India’s constitution framers that an amendment was made in the law, the word sedition from the limitations of freedom of speech and replaced it in the Indian Penal Code (124A) with the defining criterea ‘which undermines the security of, or tends to overthrow, the State’.

Replacing the words have in fact, however made no change to the restrictions placed on fundamental rights. The concerns of the constituent assembly members have not been addressed. The fact that fundamental rights are permanent and should not be curbed when they matter the most has been a gross oversight.

It was understandable if not justifiable that avaricious Imperial Forces employed the wide and expansive power of Section 124A ergo Sedition to smother and arrest the Flames of Dissent. There are numerous cases of our freedom fighters being charged with sedition. This saga does not begin and end with Mahatma Gandhi. It extends to Jogendra Chandra Bose, ‘Lokmanya’ Bal Gangadhar Tilak, Jawaharlal Nehru, Maulana Abul Kalam Azad, even Ganesh Savarkar and many others. One would have thought that after suffering such profound wounds in Sedition’s grasp, the Elected Constituent Assembly would repeal this barbaric statute. But, it still lives.

It must be emphatically said therefore, that, historically speaking sedition laws have caused harm to the country and its people during the vibrant struggle for independence. After the battle for a free and sovereign India, however, how is it that the law still remains. The question that rises again is India truly independent if its people are not truly free –to speak and act?

22nd^h Law Commission report of Sedition (124-A, IPC)

Now, instead of responding to current judicial and political thinking, the most recent Law Commission Report recommends that the offence of sedition be retained in Indian penal law. This flies in the face of not just what a modern outward looking democracy should be doing. Section 124A of the IPC describes sedition, seeks to punish speech or writing that brings or tries to bring into hatred or contempt, or excites or tries to excite disaffection towards, the government established by law. Its validity was upheld by the Supreme Court as far back as 1962, but with the reservation that it would be a constitutionally permissible restriction on free speech, only if the offence was restricted to words that had a tendency to incite violence or cause public disorder.

What the Law Commission in 2023 fails to do is to consider how deep and far free speech jurisprudence has travelled since then. While retaining sedition cases in abeyance last year, the Supreme Court had, in 2022, observed that “the rigours of Section 124A of IPC are not in tune with the current social milieu”. At the time, the Union government, too, had decided to re-examine and reconsider the provision. Has not then the time come to consider the provision in the light of recent principles to test the validity of any restriction on fundamental rights, especially free speech? Given its overbroad nature, the sedition definition may not survive such scrutiny. The very existence of the statute offers immeasurable scope for its unjustified use, most often with a deliberate intent to suppress dissent and imprison critics.

Historiography of the concept of sedition-

The commission provides us with a definition of seditious intention provided by Sir James Charles-

“A seditious intention is an intention to bring into hatred or contempt, or to excite disaffection against the person of, Her Majesty, her heirs or successors, or the government and constitution of the United Kingdom, as by law established, or either House of Parliament, or the administration of justice, or to excite Her Majesty’s subjects to attempt, otherwise than by lawful means, the alteration of any matter in Church or State by law established, or to incite any person to commit any crime in disturbance of the peace, or to raise discontent or disaffection amongst Her Majesty’s subjects, or to promote feelings of ill-will and hostility between different classes of such subjects”

The origin of sedition laws has been dealt with at length. It was introduced by the British since colonial rule was oppressive. A law that had been introduced under colonial rule to keep India subject to outside control, is not a law a democratic country needs, even with amendments made. The law has been abolished by UK itself, why are we still following a law that has a colonial and repressive legacy?

It is clear that origin of such a law was within a monarchic system of government. Then, questioning the ruler had a different connotation from the rights of sovereign people to question those who govern them. That then is the clear distinction between a monarchy and a democratic government. A democratic government gets its legitimacy from the reasoned and unfettered right of the people to both choose their leaders and voice their opinions. It has been defined as the government for the people, by the people, of the people. Democratic systems emphasise citizen participation, including the right to vote, freedom of speech, assembly, and other civil liberties. In a monarchy, in stark contrast, or any other oppressive form of rule these rights have no consideration. The sedition laws were put in place, so people don’t rise against an oppressive nature of the government. If the government is truly democratic in nature, subject to the people’s right to vote for change, why then the need for sedition laws? How can you guarantee freedom of speech but also restrict it where it matters the most?

India’s Constitutional Courts & sedition

Article 19(1) of the Constitution of India guarantees freedom of speech and expression to all individuals. However, article 19 (2) of the Constitution, places “reasonable restrictions” on the right to speech in the interests of India’s security and sovereignty, friendly relations with foreign states, public order, decency, or morality in relation to contempt of court, defamation, or incitement to an offence. The word sedition was replaced with the use of the sentence “which Undermines the security or tends to overthrow the state.” The replacement did not make much of a difference. The Supreme Court in the Kedarnath Judgement[1] answered the question of whether the S.124A of the IPC was in violation of Article 19(1) or came under a reasonable restriction under Article 19(2).

In the case of Balwant Singh v. State of Punjab (1995)[2], the Supreme Court emphasised the importance of free speech and expression while also emphasising that the offence of sedition must be read narrowly. The court ruled that criticising the government or authorities, no matter how forcefully phrased, does not necessarily constitute sedition unless they promote violence or have a direct tendency to undermine public order.

In the case of Arup Bhuyan v. State of Assam (2011)[3], the Supreme Court emphasised that mere sloganeering or raising of anti-government political slogans does not inherently constitute to sedition. The necessity of distinguishing between the right to criticise and the act of instigating violence or causing public disorder was emphasised by the court.

In the Shreya Singhal case (2015)[4], the court emphasised that freedom of speech and expression is a basic right that should be maintained and only limited in extraordinary circumstances. They emphasised the need of applying sedition laws narrowly and cautioned against using them to repress legitimate dissent or criticism of the government. The decisions emphasised the significance of establishing a balance between national security and fundamental rights, notably in the context of sedition statutes.  In his concurring opinion, Justice Nariman emphasised that sedition is a serious offence that should be understood narrowly and should not be used to restrict lawful speech of unpopular or critical ideas. He emphasised that sedition should be limited to activities that promote violence or public unrest. In his majority opinion, Justice Misra emphasised the importance of free expression and its role in a democratic society. He held the view that, even though it was distasteful to some, expression of opinion could not be criminalised unless it posed a clear and present risk to public order.

However, the way narrowed justification of the law on sedition has been set by the Courts, is far from how it has been used. Section 124-A is grossly misinterpreted by the police and other governmental authorities. The fact also that it is a non-bailable offence makes the situation worse for a democratic country.

How the 22^nd Report breaks from Jurisprudence

In the 22^nd report of the Law Commission, there has been a serious misinterpretation in the case of Kedar Nath case. The report states that a strict proximity test and a tendency test needs to be applied to check whether Section 124A of the IPC will be applicable or not. However, the only test mentioned in the Kedarnath case is the tendency test without subtests, departing from the proximity requirement in Indian public order jurisprudence. The report also overlooks the case of Shreya Singhal v Union of India, which emphasized the importance of discussion and advocacy and limited the application of the tendency test.

The report has also grossly overlooked the judicial statements made by judges, with regards to sedition laws after Kedarnath. In a recent remark, the present chief justice, Justice D.Y. Chandrachud emphasised the importance of defining the limits of sedition, expressing worry over the indiscriminate application of the sedition statute in India. The judge notably addressed concerns about the use of sedition charges against persons who expressed their dissatisfaction with the government’s handling of the COVID-19 epidemic, including those seeking medical assistance and supplies during the pandemic’s second wave (The Vinod Dua Case). While hearing a petition filed by two television networks against the Andhra Pradesh government, Justice L. Nageswara Rao expressed concern about the sedition statute being used to silence the media. In a recent decision, Justice U.U. Lalit dismissed a sedition prosecution against journalist Mr. Dua, defending journalists’ right to criticise the government’s policies, even harshly, in order to improve or modify them through legal means.

In addition, Chief Justice N.V. Ramana stated in July 2021 that Section 124A (sedition) of the Indian Penal Code may be outmoded. The then Chief Justice acknowledged the public desire for judicial review of how law enforcement officials utilise the sedition statute to limit free expression and imprison journalists, activists, and dissenters. This remark demonstrates the court’s awareness of the matter and readiness to resolve the issues highlighted.

Overall, the words of several Supreme Court justices indicate a growing realisation of the need to study the sedition legislation and ensure that its use does not restrict free speech and expression, particularly in situations involving journalists, activists, and dissenters.

The Law Commission Report completely overlooks these observations and findings of India’s Constitutional Courts post-Independence.

Section 124A of the Indian Penal Code, 1860, aims to subdue and remove the last forms of resistance in society. Such a proclivity contradicts the inherent principles of democracy. The existence of such a provision in a modern country like India looks to be superfluous. The clause is harsh because of the severity of the penalty. The continuance of such a clause limits freedom of speech and expression, which is ostensibly a basic right granted by Indian Constitution Article 19(1)(a). To keep up with the changing needs of society, India’s sedition laws must evolve and alter.

Misuse of the sedition law

There have been multiple instances of misuse of sedition laws in India, to silence dissent and give greater power to the government. Here are some instances of the misuse of sedition laws in the country-

1. In 2020, journalist Vinod Dua was charged with sedition after a complaint by a local BJP leader in Himachal Pradesh, and the charges were based on his critical remarks against the central government in a YouTube video. The Supreme Court later quashed the sedition charges against Dua, emphasising the importance of protecting free speech.
2. Sedition accusations (apart from the draconian UAPA) against activists in Bhima Koregaon case: Several activists and intellectuals were detained in Maharashtra in 2018 in connection with the Bhima Koregaon violence case. Sudha Bharadwaj, Varavara Rao, Arun Ferreira, Vernon Gonsalves, and Gautam Navlakha were among them. They were charged with sedition, among other things, but the arrests prompted condemnation, with many claiming that sedition laws were being used to persecute dissenting voices.
3. Sedition charges were filed against several farmers protesting new agricultural laws near Delhi in 2021, based on allegations of violence and inciting public disorder. Critics argued that using sedition laws against peaceful protesters violated their right to free expression and assembly.
4. Cartoonist Aseem Trivedi faced sedition charges: In 2012, cartoonist Aseem Trivedi was charged with sedition for his cartoons that purportedly mocked and criticised corruption in India’s political system. Although the charges were eventually dismissed, the case raised worries about the misuse of sedition laws to pursue political satirists and artists.
5. Sedition charges against Amnesty International: Amnesty International India was charged with sedition in 2016 for organising a human rights event in Jammu and Kashmir. The allegations were widely condemned as a violation of free expression and an attempt to muzzle critics.
6. Students charged with sedition at Jawaharlal Nehru University (JNU): In 2016, sedition charges were filed against numerous students at Jawaharlal Nehru University in Delhi for allegedly raising anti-national slogans. The charges generated widespread condemnation, with many claiming that the application of sedition statutes was harsh and disproportionate in this case.

These are just but a few instances of the misuse of sedition laws to silence anyone and everyone who have tried to express their discontent with the law in place. The question remains, how can we call ourselves a democracy when people cannot raise their voice against an unjust law or criticize the functioning of the government?

Reasoning of the Law Commission

The report emphasises that valid criticism of the government is permissible as long as it does not incite violence or support the disintegration of the country. However, since the Commission has prescribed the use of the tendency rule, this will hamper even very valid criticism since there is no objective test on what can or cannot incite people. While the Commission has, time and again in its report, made efforts to show that this classification is a reasonable restriction it is found to contradict itself by actually recommending stricter rules be put in place, while also preaching values of democracy. How can a nation be sovereign when it is not democratic in its true essence?

The Commission also and at length spoken about the “internal security” of India being in jeopardy and the need for a retention of the sedition law(s) which are a must to protect the “internal security of India.”

Now the moot question is – if any law in place, makes people want to jeopardize the internal security of their own nation, then should the law be changed/amended or should there be more restrictions put on the freedom of speech so as to snatch away the truly democratic element present in the society? As pointed out by senior counsel Kapil Sibil in an article in The Indian Express, over recent years, particularly since 2014, the sedition statute has been used to silence journalists, academics, political opponents, and students, particularly minorities, who attempt to address matters of national concern.

The Law Commission’s suggestions are designed to stifle even the most minor resistance and protests against the government’s unilateral and unjust policies. The report also goes on the blame the police for the misuse of the sedition laws. The report presents the police as an autonomous body responsible for the misuse, ignoring the role of the political class in influencing and pressuring police action.

The report then talks about countries like USA, UK, Australia and Canada in order to show that these countries although have abolished the sedition laws and have replaced them in counter terrorism laws. Are these examples of relevance? India too has not just a draconian Unlawful Activities (Prevention) Amendment Act, 2008 -UAPA- in place but several other “national security laws” who’s provisions not only exist but have been used also to stifle dissent and incarcerate citizens challenging a government democratically.[i]

However, it is important to note that these examples are futile, since the law commission itself has through its recent report that contains recommendations also attempted not to limit or water down or repeal but actually strengthen the sedition law in India. By inappropriately giving examples of countries that have abolished sedition laws and ensured freer speech, the Law Commission’s report lacks cohesion or conviction.

India’s sedition laws have and are being used to silence journalists, activists and opposition parties and not to maintain the security of the state. The security of the state is only a cloak, the motive is simply this – ensure that a harsh law makes it hard or near impossible for people to able to criticise governmental policies.

While the Supreme Court issued a decisive decision in Kedar Nath in 1962, clearly stating that the sedition law was only supposed to be used in rare cases where the country’s security and sovereignty were threatened, this has little bearing on the use of sedition charges by state authorities, particularly the police. As political polarisation and political distrust continue to be stoked and therefore are on the rise in the country, governments have increasingly used the abovementioned law as a handy tool against their political competitors, suppressing dissent and free expression.

Several recent Supreme Court and high court decisions have dramatically brought these features of misuse to the public’s attention, but with little or no deterrent effect on police and other state institutions.

Recommendations of the Law commission

The Law Commission in light of the fallacious reasons given by them have made the following recommendations with respect to sedition laws-

1. The tendency test must be used in order to decide case related to sedition- The proportionality test, or the imminent danger test would be more effective if the country was only worried about the security of India and did not want to silence the journalists, activists and opposition parties.
2. The procedural guidelines are established to prevent the misuse of the sedition laws, however they too are vague.
3. The report presents a proposed amendment to Section 124A of the IPC. The suggested amendment includes adding the phrase “with a tendency to incite violence or cause public disorder” to specify the nature of disaffection required for the offense. It also suggests expanding the punishment options to include imprisonment for life, imprisonment up to seven years, or a fine

By increasing the punishment for sedition and adding the tendency rule, the Law Commission report belies its own claim at the report’s release that states that valid criticism is welcome. Even valid criticism is in essence curtailed through these recommendations. These recommendations if implemented will have a chilling effect on democracy, and the right to the citizens to speech when on issues that are crucial and key.

(This resource has been prepared by the CJP’s Legal Research Team with contributions by intern, Hansi Jain)

[1] Kedarnath Singh v. State of Bihar, AIR 1962 SC 955

[2] Balwant Singh v. State of Punjab,  1996 AIR  607

[3] Arup Bhuyan v. State Of Assam., 2011 3 SCC 377

[4] Shreya Singhal v. UOI, AIR 2015 SC 1523

[i] National Security Act (NSA), 1980, Jammu & Kashmir Public Security Act, Maharashtra Control of Organised Crimes Act (MCOCA) 1989, a similar law in Karnataka and the amended Gujarat Goondas Act, 1985 amended in 2000

The post How & Why India’s Law Commission has urged a cap on Free Speech: Sedition appeared first on SabrangIndia.

Nearly seven months after putting on hold the law on sedition, in May 2022, the Supreme Court will soon hear a batch of petitions challenging the colonial-era penal law on Wednesday when the Centre is likely to apprise it of the developments, if any, made while re-examining the provision. The Modi 2.0 government has been stalling making any position public despite three hearings in the matter since May last year.

In a seminal order, the top court had on May 11 last year, 2022, decided to put in abeyance the penal law on sedition till an “appropriate” government forum re-examined it and directed the Centre and states to not register any fresh FIR invoking the offence. The Order passed in the lead matter, S.G. Vombatkere v. Union of India, (2022) 7 SCC 433 was passed by former chief justice of India (CJI), N.V. Ramana and Justice Surya Kant and Hima Kohli.

While putting the law on hold, the bench headed by the then CJI N.V. Ramana had ordered that besides lodging of fresh FIRs, ongoing probes, pending trials and all proceedings under the sedition law will also be in abeyance. It is this part of the order that makes it path-breaking given that in other instances of the Supreme Court of India striking down sections of laws as unconstitutional, state governments and their police continue applying these sections in criminal cases.

The bench had then opined that the “rigours of Section 124A (sedition) of the IPC is not in tune with the current social milieu”, and permitted reconsideration of the provision. “We expect that, till the re-examination of the provision is complete, it will be appropriate not to continue the usage of the aforesaid provision of law by the Governments,” it had said.

Any affected party is at liberty to approach the concerned courts, which are requested to examine the reliefs sought taking into consideration the present order, the apex court had also said. 

During the hearing of the bunch of petitions, the bench had not agreed with the Centre’s suggestion that a superintendent of police rank officer be made responsible for monitoring the registration of FIRs for the alleged offence of sedition.

Between 2015 and 2020, 356 cases of sedition — as defined under Section 124A of the IPC–were registered and 548 people arrested, according to data compiled by the National Crime Records Bureau (NCRB). However, just 12 people arrested in seven sedition cases were convicted in the six-year period. During the critical hearing of the matter first in May and then October 2022, it was senior counsel Kapil Sibal brought to the court’s attention that currently there are 13,000 individuals in jail under the impugned provision of the IPC.

Excerpts from the Order of May 2022 may be read here:

“5. In view of the above, it is clear that the Union of India agrees with the prima facie opinion expressed by this Court that the rigours of Section 124-AIPC are not in tune with the current social milieu, and was intended for a time when this country was under the colonial regime. In light of the same, the Union of India may reconsider the aforesaid provision of law.

6. This Court is cognizant of security interests and integrity of the State on one hand, and the civil liberties of citizens on the other. There is a requirement to balance both sets of considerations, which is a difficult exercise. The case of the petitioners is that this provision of law dates back to 1898, and pre-dates the Constitution itself, and is being misused. The Attorney General had also, on an earlier date of hearing, given some instances of glaring misuse of this provision, like in the case of recital of the Hanuman Chalisa.

7. Therefore, we expect that, till the re-examination of the provision is complete, it will be appropriate not to continue the usage of the aforesaid provision of law by the Governments.

8. In view of the clear stand taken by the Union of India, we deem it appropriate to pass the following order in the interest of justice:

8.1. The interim stay granted in WP (Crl.) No. 217 of 2021 along with WP (Crl.) No. 216 of 2021 vide order dated 31-5-2021 [Aamoda Broadcasting Co. (P) Ltd. v. State of A.P., (2022) 7 SCC 437] shall continue to operate till further orders.

8.2. We hope and expect that the State and Central Governments will restrain from registering any FIR, continuing any investigation or taking any coercive measures by invoking Section 124-AIPC while the aforesaid provision of law is under consideration.

8.3. If any fresh case is registered under Section 124-AIPC, the affected parties are at liberty to approach the courts concerned for appropriate relief. The courts are requested to examine the reliefs sought, taking into account the present order passed as well as the clear stand taken by the Union of India.

8.4. All pending trials, appeals and proceedings with respect to the charge framed under Section 124-AIPC be kept in abeyance. Adjudication with respect to other sections, if any, could proceed if the courts are of the opinion that no prejudice would be caused to the accused.

8.5. In addition to the above, the Union of India shall be at liberty to issue the directive as proposed and placed before us, to the State Governments/Union Territories to prevent any misuse of Section 124-AIPC.

8.6. The above directions may continue till further orders are passed.”

Now, PTI reports that a bench comprising Chief Justice D.Y. Chandrachud and Justice P.S. Narasimha has listed for hearing as many as 12 petitions, including the one filed by the Editors Guild of India, against the law.

The Indian law on sedition, which provides for maximum jail term of life under Section 124A of the Indian Penal Code for creating “disaffection towards the government”, was brought into the penal code in 1890, 57 years before India attained Independence and almost 30 years after the IPC came into being. In the pre-Independence era, the provision was used against freedom fighters, including Bal Gangadhar Tilak and Mahatma Gandhi.

The apex court had, in 1962, upheld the validity of the law while attempting to restrict its scope for misuse.

How does Section 124-A read ? “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,” reads section 124A (sedition) of the IPC.

October 2022

An interim order by the Supreme Court putting on hold the contentious sedition law and the consequential registration of FIRs will continue as the SC granted more time to the Centre on October 31 to take “appropriate steps” with regard to the reviewing of the colonial-era provision.

Attorney General R Venkataramani had then told the bench that some more time be granted to the Centre as “something may happen in the winter session of Parliament”. The senior most law officer said the issue has been under consideration of the authorities concerned and moreover, there was “no reason to worry” in view of the May 11 interim order, which had put the use of the provision on hold. Come winter session, no progress was made on this front. “In view of the interim directions issued by this court…dated May 11, 2022, every interest and concern stand protected and as such there would be no prejudice to anyone. At his request, we adjourn the matter to the second week of January, 2023,” the bench said.

Other petitions including g those filed by the Editor’s Guild of India and the People’s Union for Civil Liberties (PUCL) were also tagged on to the main petition.

May – July 2022

During the hearings, initially, the Centre through arguments and representations made b y Solicitor General, Tushar Mehta had tried to resist this stay on any application of this draconian section. After arguments, the then CJI, Ramanna had stated,  “The Bench had discussed elaborately and in view of the above, it had found that the Union of India agrees with the prima facie opinion expressed by the Court that the rigours of Section 124A is not in accordance with the current social milieu. It will be appropriate not to use this provision of law till further examination is over.”

With respect to the argument that the Kedar Nath case struck a balance to ensure that section 124-A IPC is not misused, Senior Counsel Sibal argued that the said case was based on Federal Court judgements, in the pre-constitution era where there was no difference between the Centre and the State, reported LiveLaw. He also quoted Nehru who said, “This provision is obnoxious. The sooner we get rid of it, the better. It should have no place”.

Background

On May 5, 2022, the three-judge Supreme Court bench decided to consider the preliminary issue of whether a reference to a larger bench is required as a five-judge bench in the 1962 Kedar Nath case had retained the section after reading it down. It was the Centre’s case that the Kedar Nath case is a good precedent and required no reconsideration. The Centre also reasoned that mere isolated instances of misuse of law cannot be the grounds to question the judgment. On the other hand, the petitioners sought stay on the operation of the impugned provision in case the court decided to refer the matter to a larger bench. Alternatively, they sought direction that no fresh cases be registered under the impugned provision and the pending cases or proceedings be stayed.

A batch of writ petitions had been filed by Army veteran Major-General SG Vombatkere (Retired) and the Editors Guild of India, Former Union Minister Arun Shourie , TMC MP Mahua Moitra, journalist Anil Chamadia, PUCL, journalists Patricia Mukhim and Anuradha Bhasin, and Journalist Union of Assam.

In July 2021, when the Court issued notice on the petitions. According to a report in LiveLaw, the CJI had orally remarked, “Is it still necessary to retain this colonial law which the British used to suppress Gandhi, Tilak etc., even after 75 years of independence? If we go see the history of charging of this section, the enormous power of this section can be compared to a carpenter being given a saw to make an item, using it to cut the entire forest instead of a tree. That’s the effect of this provision.”

In April 2021, another three-judge bench of Justices UU Lalit, Indira Banerjee and KM Joseph had issued notice in connection with the plea challenging Section 124-A IPC filed by two journalists, namely, Kishorechandra Wangkhemcha from Manipur and Kanhaiya Lal Shukla from Chhattisgarh who have been charged for Sedition in their respective states for comments and cartoons shared by them on social media.

What is the Sedition Law?

The Sedition Law in India was inserted into the Indian Penal Code under Section 124-A in 1870 when Britain ruled India. The section reads as follows:

124A. Sedition.—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.

Sedition in India owes its origin to The British Sedition Act of 1661, an Act of Parliament of England which was passed as an Act for safety and preservation of his majesty’s person and Government against treasonable and Seditious practices. 

Ironically, UK abolished sedition through the Coroners and Justice Act of 2009 stating, “Sedition and seditious and defamatory libel are arcane offences – from a bygone era when freedom of expression wasn’t seen as the right it is today”.

Bal Gangadhar Tilak and Mohandas Karamchand Gandhi were two prominent leaders who were imprisoned under this Act during the British rule of India. In 1922 when Mahatma Gandhi was charged with sedition, he told the Court, “Section 124A under which I am happily charged is perhaps the prince among the political sections of the IPC designed to suppress the liberty of the citizen. Affection cannot be manufactured or regulated by law. If one has no affection for a person or system, one should be free to give the fullest expression to his disaffection, so long as he does not contemplate, promote or incite to violence.”

The offence of Sedition has been misused by the Government in imprisoning the dissenters, thus negating the freedom of speech guaranteed by the Constitution. A plethora of intellectuals, journalists, social activists, writers, tribal sympathizers, etc. such as Gautam Navlakha, Anand Teltumbde, Varavara Rao, Umar Khalid, to name a few, still languish behind bars under Sedition/UAPA charges with no quick hope of redemption.

The Order has been embedded here

Related:

Landmark ruling: SC orders Sedition law to be kept in abeyance
The Draconian Sedition Law in Independent India
SC Order putting sedition law on hold to continue

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An interim order by the Supreme Court putting on hold the contentious sedition law and the consequential registration of FIRs will continue as the SC granted more time to the Centre on October 31 to take “appropriate steps” with regard to the reviewing of the colonial-era provision.

Attorney General R Venkataramani told the bench that some more time be granted to the Centre as “something may happen in the winter session of Parliament”. The senior most law officer said the issue has been under consideration of the authorities concerned and moreover, there was “no reason to worry” in view of the May 11 interim order, which had put the use of the provision on hold.

“Mr R Venkataramani, the attorney general, submits that in terms of the directions issued by this court in order dated May 11, 2022, the matter is still engaging the attention of the relevant authorities. He submits that some additional time be granted so that appropriate steps can be taken by the government.

“In view of the interim directions issued by this court…dated May 11, 2022, every interest and concern stand protected and as such there would be no prejudice to anyone. At his request, we adjourn the matter to the second week of January, 2023,” the bench said.

The SC also took note of other petitions on the matter and issued notices to the Centre, seeking its reply in six weeks’ time. In a landmark order passed on May 11, the court had put the contentious law on hold till the Centre completed its promised review of the colonial relic and also asked the Union and state governments not to register any fresh case invoking the offence.

The court had also directed that the ongoing probes, pending trials and all proceedings under the sedition law will be kept in abeyance across the country and those in jail on sedition charges could approach the court for bail.

The offence of sedition, which was included in section 124A of the Indian Penal Code (IPC) in 1890, has been under intense public scrutiny for its use as a tool against expressions of dissent, including on social media. The British government, during its colonial rule, had used the sedition law primarily to suppress dissent and imprison freedom fighters such as Mahatma Gandhi and Bal Gangadhar Tilak.

The Editors Guild of India, Major General (Retd) S G Vombatkere, former Union minister Arun Shourie and People’s Union for Civil Liberties (PUCL) have filed petitions against the penal provision. The petitions contend that the law causes a “chilling effect” on free speech and is an unreasonable restriction on free expression, a fundamental right.

Related:

Landmark ruling: SC orders Sedition law to be kept in abeyance
 The Draconian Sedition Law in Independent India

The post SC Order putting sedition law on hold to continue appeared first on SabrangIndia.

The Constitutional Conduct Group (CCG), a formidable group of former Indian civil servants has urged the Supreme Court to judicially determine section 124A (Sedition) as unconstitutional and stroke it down.

In a detailed statement issued on June 12, it has also urged that provisions of other draconian laws like the Unlawful Activities (Prevention) Act (UAPA), sections 2(1) (o) (iii) and 13 (1) need to also be similarly struck down. In this detailed analysis of criminalising provisions, the group has also pointed out that Indian penal Code (IPC) sections 153 (a) and (b) are typically and often mis-interpreted and used to penalise free speech.

In this context, the Constitutional Conduct Group has put out an open statement on sedition law and the Supreme Court, calling for a basic structure principle to safeguard citizens’ rights: “Given that no democracy can exist without freedom of speech and expression, including the right to promote opinions unfavourable to the government, the Supreme Court should use this opportunity to declare an overarching ‘basic structure principle’ of the Constitution protecting freedom of speech and expression including the reasonable restrictions mentioned in Article 19(2), so that government interference with individual freedom of speech and expression can be prevented.”  Over 108 former civil servants are signatories to this.

The text of the statement is reproduced here:

“We are a group of former civil servants of the All India and Central Services who have worked with the Central and State Governments in the course of our careers. Our group has no affiliation with any political party, and we, as its members, believe in impartiality, neutrality and commitment to the Constitution of India.

“On May 11, 2022, a chorus of appreciation greeted the Supreme Court’s interim orders on a batch of cases which had challenged the constitutionality of the sedition provision contained in Section 124A of the Indian Penal Code (IPC).  The Supreme Court’s order was an interim one, viz. to keep in abeyance this section and all related pending trials, appeals and proceedings until further orders.  While we would, like others, wish to applaud this decision of the Supreme Court, we feel that, at present, it deserves only a muted cheer.

“The Supreme Court’s order, inasmuch as it results in immediate relief against arrest, investigation or under-trial detention under Section 124A, is certainly laudable (provided it does not adversely affect the persons already charged). Not so laudable is the impression it gives that the suspension is a response to the union government’s statement that it is reviewing Section 124A and considering its revision and reform. Review and revision by the executive cannot be a substitute for judicial determination of the constitutional limits of the power of the executive to restrict freedom of speech and expression. It is important for the Supreme Court not to get sidetracked by the executive and instead to answer the fundamental issue raised by the petitioners, viz. is Section 124A of the IPC constitutionally valid?

“Section 124A of the IPC is certainly a strange provision to have in a democracy. It criminalizes the feelings of dislike, contempt and disaffection towards “the government established by law in India”, even where such feelings are not linked to any violent, illegal or criminal act.  Disaffection and contempt for the government of the day are feelings through which democratic republics are born.  Such feelings are considered criminal only in autocracies. Where the government of the day can be, and is, changed through the electoral process, it can surely not be a criminal offence for any citizen to merely harbour and express feelings of disaffection, etc. towards the government.

“In the words of Mahatma Gandhi: “Affection cannot be manufactured or regulated by law. If one has no affection for a person or system, one should be free to give the fullest expression to his disaffection, so long as he does not contemplate, promote, or incite to violence.” Yet this disaffection is what Section 124A treats as criminal. Sixty years ago, in Kedar Nath Singh vs. State of Bihar, a five-judge bench of the Supreme Court upheld Section 124A IPC, but qualified their decision as follows:

. . . we propose to limit [the] operation [of Section 124A] only to such activities …. involving incitement to violence or intention or tendency to create public disorder or cause disturbance of public peace.

“This limiting of Section 124A to activities which involve incitement to violence or public disorder has, however, been by and large ignored in practice by the police and by the courts. As against the thousands of cases charged by the police under Section 124A and similar draconian provisions/laws, the low rate of conviction casts serious doubt about the genuineness of claims made during investigation and prosecution. It shows that the real purpose of such laws is to provide autocratic rulers a powerful weapon to suppress their rivals and control public opinion.

“However, whether or not Section 124A is finally deleted or altered, it will make little difference to the common citizen insofar as freedom of speech and expression as spelt out in Article 19(1) of the Constitution is concerned. This is because, apart from Section 124A of the IPC, there are several other provisions in the IPC and other Acts which shackle this fundamental right of citizens and leave them open to arbitrary arrest and prosecution by the government. The only way that the citizen’s right to freedom of speech and expression can be protected is if the Supreme Court examines Article 19 under the “basic structure of the Constitution” principle with reference to all existing laws and provisions that put curbs on this freedom.

“The armoury of arbitrary weapons used to suppress dissent and opposition and control the free formation of public opinion has expanded over the years to include a number of offences similar to those under Section 124A. Prominent amongst these offences are Section 153A of the IPC (promoting enmity between different groups on ground of religion, race, place of birth, etc.), Section 153B (imputations, assertions prejudicial to national integration), Section 505 (statements conducive to public mischief) and Section 505(2) (statements creating or promoting enmity, hatred or ill-will between classes). These provisions are today widely and routinely misused by the police and their political masters with the same objective as in the case of Section 124A.

“Over the years, slowly and surreptitiously, the substance of the offence of sedition has been “snuck” into the Unlawful Activities (Prevention) Act, 1967 (UAPA), defined more elaborately, and with more draconian consequences, than in Section 124A. Significantly, no political party is blameless in this regard and governments of all political complexions have been trampling upon human rights and the freedom of expression

“Section 13(1) of the UAPA states that “Whoever: (a) takes part in or commits, or (b) advocates, abets, advises or incites the commission of, any unlawful activity….” shall be punishable with imprisonment for a term which may extend to seven years. “Unlawful activity” as defined under Section 2(1)(o)(iii) of the UAPA is very similar to the definition of sedition contained in Sec 124A IPC.

“If Section 124A of the IPC is held by the court to be unconstitutional, because speech and expression that merely create disaffection are protected (and not prohibited) under Article 19(1), Section 2(1)(o)(iii) of the UAPA will also need to be amended to delete elements imported from Section 124A, viz. the criminalization of speech and expression which is not an integral part of any violent, illegal, criminal act. Deletion of one, while retaining the other, would be irrational.

“Deleting Section 124A from the IPC, while retaining criminalization of “unlawful activities” under the UAPA, will give substantial political advantage to the union government and the party in power at the national level. Currently, state governments are free to prosecute persons for offences under the IPC, including for sedition under Section 124A.  No permission of the union government is required.   States ruled by political parties other than that at the national level sometimes use Section 124A to prosecute supporters of the national ruling party for sedition (as recently happened in Maharashtra). The ruling party at the union level is powerless to prevent such prosecution. The UAPA, on the other hand, vests no powers with the state governments. It provides that no court shall take cognizance of any offence of unlawful activity without the previous sanction of the Central Government.   Deleting Section 124A of the IPC will mean that the power to prosecute those who promote unfavourable opinions against the government will rest solely with the union government. This provides a major incentive for the union government to delete Section 124A under the pretext of protecting human rights while in reality strengthening its ability to suppress liberty in an even more draconian manner.

“Given that no democracy can exist without freedom of speech and expression, including the right to promote opinions unfavourable to the government, the Supreme Court should use this opportunity to declare an overarching ‘basic structure principle’ of the Constitution protecting freedom of speech and expression including the reasonable restrictions mentioned in Article 19(2), so that government interference with individual freedom of speech and expression can be prevented. In doing so, the Court should hew to the principle that any permissible restriction on speech and expression must be only against speech or expression that is likely to result in imminent violence or restricts the freedom of speech and expression of others.

SATYAMEVA JAYATE

The 108-strong list of the signatories of the Constitutional Conduct Group are listed below:

The post If Sedition goes, so must criminalising provisions of UAPA: CCG appeared first on SabrangIndia.

In a historic order on May 11, 2022, Supreme Court has ruled that the Centre and state governments are to refrain from registering any new FIRs under Section 124-A IPC while it was under consideration by the Centre.

While hearing the petitions challenging the constitutional validity of the offence of sedition under Section 124-A of the Indian Penal Code, a bench comprising Chief Justice of India NV Ramana, Justice Surya Kant and Justice Hima Kohli, held that all pending cases, appeals and proceedings with respect to charges framed under Section 124-A are to be kept in abeyance, and adjudication with respect to other sections may proceed with no prejudice be caused to accused, reported Live Law.

According to the Court’s order, those who are already booked under Section 124-A IPC or those who are still languishing behind bars can approach the courts for seeking bail. The court further held that in case a fresh case is registered, then appropriate parties are at liberty to approach courts for appropriate relief. Accordingly, the court urged the subordinate courts to examine the relief sought by taking into consideration the order passed by this court. Additionally, it directed the Union of India to issue directives to States and Union Territories so as to prevent the misuse of Section 124-A of the Indian Penal Code.

Senior Counsel Kapil Sibal brought to the court’s attention that currently there are 13,000 individuals in jail under the impugned provision of the IPC.

Yesterday when the Court agreed with the Centre’s suggestion to defer the hearing of the petitions challenging section 124-A IPC, the petitioner raised concern over the interest at stake of the people who are already booked under IPC section 124-A or those who are in jail in case the decision on the impugned law was to be delayed any further. Accordingly, the Court granted the Centre 24 hours to respond on the status of pending and future cases until it reconsiders the impugned IPC provision.

LiveLaw reported that the bench had orally remarked, “Mr. Mehta, we are making it very clear, we want instructions. We will give you time till tomorrow. Our specific queries are, about the pending cases and how government will take care of future cases. These are the two issues on which we want the government to respond.”

However, with respect to the future cases that could be filed under the impugned law, the Solicitor General of India, Tushar Mehta reportedly informed the court today that once a cognisable offence was committed it would not be appropriate to stay the effect of the impugned provision either by the Centre or the Court. He submitted that the Centre has accordingly prepared a proposed draft to be issued by the Centre directing that a responsible officer for scrutiny be selected whose satisfaction would be subject to judicial review.

With respect to the pending cases, the SG reportedly submitted that they are not sure of the gravity of each case as some of them have a terror angle while some involve money laundering. Irrespective, SG Mehta reassured the Court that the subordinate courts are to be trusted to deliver justice. The only suggestion offered by him to the court was that the cases at the stage of bail application involving section 124-A IPC be heard and decided expeditiously.

Taking into consideration the Centre’s proposal and attempting to find a viable solution for the pending cases already registered under the impugned section of IPC, Justice Surya Kant suggested that as a fair and impartial authority to scrutinise registration of FIR, the pre-registration FIR scrutiny could be undertaken by the Superintendent of Police, and asked the petitioners if they would prefer any other authority to do so.

However, the counsel for the petitioner, Senior Advocate Kapil Sibal found the Centre’s proposal to be absolutely unacceptable and objected to it strongly. As per LiveLaw, he submitted that the FIR should not go to anybody and that it should be stayed at the first instance itself during the interregnum period. Adding to this, he further stated that they had not approached the Court seeking a stay on the operation of Section 124-A, instead it only came up when it was prompted by the Centre itself.

LiveLaw reported that after a private discussion, the CJI stated, “The Bench had discussed elaborately and in view of the above, it had found that the Union of India agrees with the prima facie opinion expressed by the Court that the rigours of Section 124A is not in accordance with the current social milieu. It will be appropriate not to use this provision of law till further examination is over.”

Proceedings on May 10

Yesterday, SG Mehta had submitted that the Centre had chosen to re-examine and reconsider Section 124-A IPC and prayed in its affidavit that the Court await such reconsideration to be undertaken before an appropriate forum where it is constitutionally permitted. However, Sibal strongly objected to this stating that this exercise would take another six months to one year. Agreeing with Sibal when the Court asked the Centre to give an estimate of how long the exercise would take, the SG responded that he couldn’t give an accurate reply but assured that there was an application of mind involved in the process.

Justice Kant and Kohli reportedly enquired why is the Centre relying on an “appropriate forum” to re-examine the law instead of engaging themselves in this exercise and also why could the Centre not instruct the state to not proceed with the matter till the issue is under reconsideration. To this, the SG submitted that he needed to seek instructions from the Centre on this matter.

As CJI Ramana acknowledged that there are several concerns regarding the pending cases and the misuse of the provisions, SG responded saying that whenever there is a misuse there are constitutional safeguards. The Court retorted, “We can’t ask everyone to go attend the courts and be in jail for a few months. When the government itself has shown concerns about misuse, how will you protect them? We have to balance the people who are jailed and people who are going to be booked? One there are pending cases, and two there are people who are going to be booked. Please make your stand clear on this.”

Interestingly, Senior Counsel Sibal also brought to light SG’s submission where it was falsely stated that section 124-A IPC mentions sovereignty and integrity of India. Submitting that the said words were only mentioned in Article 19(2) of the Constitution of India, he had urged that no arrests should be made under the impugned law.

With respect to the argument that the Kedar Nath case struck a balance to ensure that section 124-A IPC is not misused, Senior Counsel Sibal argued that the said case was based on Federal Court judgements, in the pre-constitution era where there was no difference between the Centre and the State, reported LiveLaw. He also quoted Nehru who said, “This provision is obnoxious. The sooner we get rid of it, the better. It should have no place”.

Background

On May 5, 2022, the three-judge Supreme Court bench decided to consider the preliminary issue of whether a reference to a larger bench is required as a five-judge bench in the 1962 Kedar Nath case had retained the section after reading it down. It was the Centre’s case that the Kedar Nath case is a good precedent and required no reconsideration. The Centre also reasoned that mere isolated instances of misuse of law cannot be the grounds to question the judgment. On the other hand, the petitioners sought stay on the operation of the impugned provision in case the court decided to refer the matter to a larger bench. Alternatively, they sought direction that no fresh cases be registered under the impugned provision and the pending cases or proceedings be stayed.

A batch of writ petitions was filed by Army veteran Major-General SG Vombatkere (Retired) and the Editors Guild of India, Former Union Minister Arun Shourie , TMC MP Mahua Moitra, journalist Anil Chamadia, PUCL, journalists Patricia Mukhim and Anuradha Bhasin, and Journalist Union of Assam.

In July 2021, when the Court issued notice on the petitions. According to a report in LiveLaw, the CJI had orally remarked, “Is it still necessary to retain this colonial law which the British used to suppress Gandhi, Tilak etc., even after 75 years of independence? If we go see the history of charging of this section, the enormous power of this section can be compared to a carpenter being given a saw to make an item, using it to cut the entire forest instead of a tree. That’s the effect of this provision.”

In April 2021, another three-judge bench of Justices UU Lalit, Indira Banerjee and KM Joseph had issued notice in connection with the plea challenging Section 124-A IPC filed by two journalists, namely, Kishorechandra Wangkhemcha from Manipur and Kanhaiya Lal Shukla from Chhattisgarh who have been charged for Sedition in their respective states for comments and cartoons shared by them on social media.

What is the Sedition Law?

The Sedition Law in India was inserted into the Indian Penal Code under Section 124-A in 1870 when Britain ruled India. The section reads as follows:

124A. Sedition.—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.

Sedition in India owes its origin to The British Sedition Act of 1661, an Act of Parliament of England which was passed as an Act for safety and preservation of his majesty’s person and Government against treasonable and Seditious practices. 

Ironically, UK abolished sedition through the Coroners and Justice Act of 2009 stating, “Sedition and seditious and defamatory libel are arcane offences – from a bygone era when freedom of expression wasn’t seen as the right it is today”.

Bal Gangadhar Tilak and Mohandas Karamchand Gandhi were two prominent leaders who were imprisoned under this Act during the British rule of India. In 1922 when Mahatma Gandhi was charged with sedition, he told the Court, “Section 124A under which I am happily charged is perhaps the prince among the political sections of the IPC designed to suppress the liberty of the citizen. Affection cannot be manufactured or regulated by law. If one has no affection for a person or system, one should be free to give the fullest expression to his disaffection, so long as he does not contemplate, promote or incite to violence.”

The offence of Sedition has been misused by the Government in imprisoning the dissenters, thus negating the freedom of speech guaranteed by the Constitution. A plethora of intellectuals, journalists, social activists, writers, tribal sympathizers, etc. such as Gautam Navlakha, Anand Teltumbde, Varavara Rao, Umar Khalid, to name a few, still languish behind bars under Sedition/UAPA charges with no quick hope of redemption.

The complete order may be read here: 

Related:

The case against Sedition

Sedition Law: Crushing Dissent in India since 1833

The Draconian Sedition Law in Independent India

SC to consider Constitutional validity of Sedition law, issues notice

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“They have accused me of questioning the independence of the judiciary, and that I tried to disturb relations between Asaameese and Bengali and that I spoke against the police. They cite ‘indepence’. This independence is also my birthright, this is my country as much as theirs, I am as independent as them,” said Anirban Roy Choudhury, a co-founder and editor of Barak Bulletin, a hyper local news portal in Assam’s Barak valley. He was addressing the media at a Press Meet organised by the senior journalists, when he was informed of the charges against him. 

Choudhury has been accused of Sedition for an editorial published on November 28, and is expected to report to the Silchar Sadar Police Station on December 6, at 11:00 A.M. He recently posted this on his Facebook page, “I am grateful to the media fraternity, general public for their immense support. Your love, affection and blessings are pillars of strength. I will be tried for sedition. An FIR has been registered by the police U/S 153 – A, 124 -A, 501 and 505 of the Indian Penal Code for publishing an article on Barak Bulletin, a hyperlocal portal that I co-own. However, as the founder of Barak Bulletin, I assure you, Barak Bulletin is not scared. Barak Bulletin will continue to serve the governed and if that means writing against the governors, we will!!! Long Live Independent Journalism.”

On December 2, a First Information Report (FIR) was filed by a Silchar-based businessman Santanu Sutradhar, who is member of All Assam Bengali Hindu Association, stated news reports. Choudhury, has been charged under 124A (sedition), aside from 501 (printing or engraving matter known to be defamatory), 153-A (promoting enmity between different groups) and 505-2 (statements creating or promoting enmity, hatred or ill will between classes) of the Indian Penal Code.

Choudhury told The Wire, “Two police personnel in uniform came to my house on December 4 around 10:30 A.M to deliver the summons under section 41-A (notice of appearance before police officer) of the Code of Criminal Procedure (CrPC). I am to appear at the Silchar Sadar police station tomorrow around 11 A.M.”

The editorial for which Choudhury has been charged for sedition is headlined Welcome to the Paradise of the Spineless – We are Assamese. It was published after the arrest of a former Bharatiya Janata Party (BJP) leader and Guwahati High Court advocate Pradip Dutta Roy on November 27 in Silchar. Roy had quit the BJP and floated his party the Barak Democratic Front.

According to news reports, Roy had objected to the use of “only Assamese language in a government hoarding on the Covid-19 vaccination drive in Silchar town” and demanded that “it should have been in Bengali, as Bengali is the official language of Assam’s Barak Valley under the Assam Official Language (Amendment) Act 1961.”

The hoarding, placed at a local filling station, was taken down this past week and replaced with another, where both Assamese and Bengali were used, reported The Wire. On November 27, according to a report in GuwahatiPplus, Roy was called to the police station for interrogation. The Assam Tribune reported that Roy was later arrested by Cachar Police after reportedly prolonged hours of interrogation. According to the report, an FIR was filed at the Silchar Sadar Police station with allegations against him of attempting to disturb peace and harmony among communities and hurting sentiments.

Then Assam Chief Minister Himanta Biswa Sarma, also reacted and reportedly said, “Our government is trying to create bridges of harmony between linguistic communities of Assam. But few people are spitting venom because they want to divide the commons (common public) on linguistic grounds. We won’t allow people like Pradip Dutta Roy to divide people.” Roy was denied bail and sent to judicial custody till December 10. As he is suffering from a liver ailment, Roy is presently lodged at the Silchar Medical College and Hospital.

It was in this context that Anirban Roy Choudhury had written the editorial in support of Roy. His speech too had called for support for Roy and cited the movement that led to Bengali being the official language of the valley in the 1960s, “Bhasha Shaheeds are dead and so are their descendants.” This led to Sutradhar’s complaint to the superintendent of police, Cachar saying, “In connection to the arrest of Pradip Dutta Roy, Barak Bulletin, an online news portal, has been repeatedly publishing articles supporting the act of Pradip Dutta Roy and questioning the intention of the (Assam) government and (Assam) Police and even questioning the impartiality of the judiciary.” He further said, “The writer Anirban Roy Choudhury tried to incite hatred against the Assamese community, and also ridiculed our honourable chief minister on his remarks on this issue. The article carries venom against the Assam Police and questions its impartiality in handling the case of Pradip Dutta Roy. As a responsible citizen and first-generation entrepreneur having a vision of a united and economically developed Assam, I feel that articles like this will hamper the brotherhood between the Bengali and Assamese of Assam. I, therefore, request you to kindly take appropriate steps against the above-mentioned news portal.”

Choudhury told The Wire, “I will cooperate 100% with the police investigation but I want to add that the investigation will not stop from speaking with the same freedom with which we wrote the editorial.”

As soon as Choudhury’s Facebook post about the police summons on December 4, went public, many locals including journalists extended support to him. According to reports, journalists have also written a joint letter to state governor Jagadish Mukhi to withdraw the case filed by Silchar police against Roy on the charge of harassing journalists.

Related:

Stop persecution of lawyers, citizens against communalism in Tripura: Citizens and Lawyer’s groups

Undermining the idea of India

Was Disha Ravi put in jail for nothing?

Delhi court denies bail to Sharjeel Imam in sedition case 

Chargesheet against me looks like a film script: Umar Khalid to court

The post Anirban Roy Choudhury, editor of Barak Bulletin, accused of Sedition appeared first on SabrangIndia.

The Supreme Court is mulling interpreting the Sedition law especially on its application to freedom of press. The court made this observation while granting protection to two news channels of Andhra Pradesh from coercive action as they were charged of Sedition, promoting enmity and making statements conducing to public mischief.

“Having heard learned counsel, we are of the view that the ambit and parameters of the provisions of Sections 124A, 153A and 505 of the Indian Penal Code would require interpretation, particularly in the context of the right of the electronic and print media to communicate news, information… even those that may be critical of the prevailing regime in any part of the nation,” said the bench comprising Justices DY Chandrachud, L Nageswara Rao and S Ravindra Bhat.

The two news channels, TV5 and ABN had approached the court against the FIR filed against them, and while translating some of the vernacular terms in the FIR, Justice Rao, reportedly, remarked that it was like “muzzling the media”. Justice Chandrachud said that if a TV channel says something, it cannot be termed as Sedition, and that “some guidelines must be set,” reported Indian Express.

The bench directed a stay on coercive measures against the TV channels but did not stay the investigation. The court has granted 4 weeks’ time to the state to respond to the petition.

The police had registered a suo moto case based on an enquiry report of the DIG-CID in Guntur District on allegations that the channels were broadcasting comments made by Lok Sabha MP K Raghu Rama Krishna Raju, criticising the Y S Jaganmohan Reddy led government. Raju had alleged that he was subjected to third degree torture while in police custody and has moved the apex court seeking a CBI inquiry.

In its plea, TV5 alleged that the FIR was a consequence of the channel broadcasting the speeches of Raju. The ABN petition said that ever since the Reddy-led government came to power, “ABN Andhrajyothi” channel has allegedly been “targeted by the State Government and its broadcasting was stopped at the ruling party/State Government’s behest, forcing it to approach the Hon’ble TDSAT and despite the order, the access to the petitioners’ channel is limited in Andhra Pradesh,” reported the Indian Express.

A three-judge bench of the apex court Justices UU Lalit, Indira Banerjee and KM Joseph issued notice in April, in a plea filed by two journalists, namely, Kishorechandra Wangkhemcha from Manipur and Kanhaiya Lal Shukla from Chhattisgarh, challenging the validity of sedition law.

Related:

Manipur: Journalist, activist post comment on cow dung, charged under NSA
SC to consider Constitutional validity of Sedition law, issues notice
Our Constitution does not permit such liberal use of NSA: Justice Govind Mathur

The post SC mulls laying guidelines for application of Sedition law on journalists appeared first on SabrangIndia.

The Supreme Court has decided to examine the validity of the offence of Sedition under section 124A of the Indian Penal Code. The court has issued notice to the Central government as well as the attorney General of India.

This is a significant move by the court, since the last time such a plea came up before the bench led by then CJI SA Bobde, in February, it was dismissed for want of cause of action.

A 3-judge bench of Justices UU Lalit, Indira Banerjee and KM Joseph will be hearing the plea filed by two journalists, namely, Kishorechandra Wangkhemcha from Manipur and Kanhaiya Lal Shukla from Chhattisgarh. These journalists have been charged for Sedition in their respective states for comments and cartoons shared by them on social media.

The petition states that section 124A infringes freedom of expression under Article 19(1)(a) and asserts that the restriction imposed under the section is not a reasonable restriction under Article 19(2) of the Constitution. It is further contended that the judgment in Kedar Nath Singh v. State of Bihar may have been correct 60 years ago, it no longer passes constitutional muster today.

The plea states that the law of sedition is no longer necessary as there are legislations in place dealing with safety and security, public disorder and terrorism such as Unlawful Activities (Prevention) Act, the Public Safety Act and the National Security Act. Thus, the need to employ section 124A is eliminated.

The petition further cites international law that India is bound by the International Covenant on Civil and Political Rights (ICCPR) which protects in Article 19 (Freedom of Expression) as a right of all individuals in the world. Section 124-A as a restriction of freedom of expression falls short of the requirements provided under International law in that it is neither “necessary” nor sufficiently “provided by law”, the plea states, as per Bar and Bench.

The petitioners also point out the misuse and abuse of the law stating that those merely exercising their democratic rights have faced penal sanction under the section which also points to the vagueness and uncertainty of the law. The plea also draws comparison between other post-colonial democracies that repealed sedition laws including the United Kingdom, who had introduced sedition in India in the first place. While New Zealand and Ghana have repealed sedition, Uganda and Nigeria have declared sedition to be unconstitutional.

Sedition law was upheld in Kedar Nath Singh v. State of Bihar by a 5 judge bench, thus any decision to subvert this precedent would have to be taken by a 7 judge bench or higher.

Looking back

Sedition in India owes its origin to The British Sedition Act of 1661, an Act of Parliament of England which was passed as an Act for safety and Preservation of His Majesties Person and Government against Treasonable and Seditious practices. Ironically, UK abolished sedition through the Coroners and Justice Act of 2009 stating, “sedition and seditious and defamatory libel are arcane offences – from a bygone era when freedom of expression wasn’t seen as the right it is today”.

Section 124A of IPC reads as follows:

[124A. Sedition.—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.]

When MK Gandhi was imprisoned for sedition by the British, he told the court, “Section 124A under which I am happily charged is perhaps the prince among the political sections of the Indian Penal Code designed to suppress the liberty of the citizen. Affection cannot be manufactured or regulated by law. If one has no affection for a person or system, one should be free to give the fullest expression to his disaffection, so long as he does not contemplate, promote or incite to violence.”

Sedition is criticised as being a convenient legal tool to muzzle voices being raised against the establishment.

The misuse

The offence of Sedition has been misused by the Government in imprisoning those who differ from the Government point of view, thus negating the freedom of speech guaranteed by the Constitution. A plethora of intellectuals, journalists, social activists, writers, tribal sympathizers, etc. have been put behind bars with no scope for bail or quick hearing in Courts. One remembers such tall thinkers and activists as Gautam Navlakha, Anand Teltumbde, Varavara Rao, Sudha Bhardwaj, Stan Swamy, Umar Khalid, etc. who have been arrested under Sedition/UAPA charges with no quick hope of redemption.

The misuse by the government has augmented in the past 6 years and the same is evident from the data collated by National Crime Records Bureau (NCRB) in its Crimes in India report released annually. In its 2019 report a conviction rate of mere 3.3% was found in sedition cases.

A comparison of data from 2015 until 2019 shows that there has been a 64% increase in sedition cases registered. The number of cases in 2015 is 30 while in 2019 it has escalated to 93. The numbers have also grown steadily over the years; in 2016 there were 35 cases, in 2017 – 51 cases and 2018 – 70 cases.

Further, if we consider a sum total of some of these parameters, a total of 279 cases have been registered between 2015 and 2019 and trial has been completed in 56 cases but only 5 cases have culminated into conviction.

Judiciary’s standpoint

 As mentioned earlier, the apex court’s stand on the constitutional validity of sedition was decided over 5 decades ago in Kedar Nath Singh v. State of Bihar. Since then, the court’s have time and again had to decide which statements amount to sedition and which do not.

In early March, the Supreme court rejected a petition seeking action against former Jammu and Kashmir Chief Minister Farooq Abdullah over his views about the abrogation of Article 370 of the Constitution and withdrawal of special status of the valley. The Bench comprising Justices Sanjay Kishan Kaul and Hemant Gupta opined that disagreeing with the views and policies of the Government does not attract the offence of sedition. 

In a panel discussion, organised by the Delhi High Court Women Lawyers Forum, Justice (retd.) Deepak Gupta of the Supreme Court opined that the “Right to dissent is a hallmark of 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.”

In February, 22-year-old climate activist, Disha Ravi was arrested for sedition, among other charges in connection with a toolkit that was allegedly created by pro-Khalistan groups to support the farmers’ protests and defame India as a part of a larger conspiracy. She was granted bail by a Sessions court in Delhi which observed thus, “The offence of sedition cannot be invoked to minister to the wounded vanity of the governments…Difference of opinion, disagreement, divergence, dissent, or for that matter, even disapprobation, are recognised legitimate tools to infuse objectivity in state policies. An aware and assertive citizenry, in contradistinction with an indifferent or docile citizenry, is indisputably a sign of a healthy and vibrant democracy.”

In another case, another Sessions Judge while granting bail to two accused of sedition 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 pretence of muzzling the miscreants”.

Thus, the apparent misuse of the law warrants the court’s intervention and deep analysis to check whether this colonial era penal law can find place in  penal laws of the 21^st century as also in a democracy like India.

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The Draconian Sedition Law in Independent India

64 percent increase in Sedition cases since 2015

The post SC to consider Constitutional validity of Sedition law, issues notice appeared first on SabrangIndia.

The Indian Sedition Law owes its origin to The British Sedition Act of 1661, an Act of Parliament of England which was passed as an Act for safety and   Preservation of His Majesties Person and Government against Treasonable and Seditious practices and attempts. However Sedition was abolished in Great Britain through the Coroners and Justice Act of 2009.

The Sedition Law in India was inserted into IPC under Section 124A in 1870 when Britain ruled India. This Law states: “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 a fine may be added; or, with imprisonment which may extend to three years, to which a fine may be added; or, with fine.”

Bal Gangadhar Tilak and Mohandas Karamchand Gandhi were two prominent leaders who were imprisoned under this Act during the British rule of India.

The irony is that Great Britain abolished this undemocratic Act in 2009 with the prophetic words : “Sedition and seditious and defamatory libel are arcane offences – from a bygone era when freedom of expression wasn’t seen as the right it is today”. “Freedom of speech is now seen as the touchstone of democracy, and the ability of individuals to criticise the state is crucial to maintaining freedom”.

However Independent India is still carrying this imperial legacy in the form of silencing dissent and criticism in the so-called democracy. It has been widely used against popular movements and individuals speaking up against the establishment.

The Preamble of the Constitution of India is very clear in declaring that it secures to all its citizens Liberty of thought, expression, belief, faith and worship.

The Constitution of India under Article 19(1)(a)  guarantees to all its citizens the right to freedom of speech and expression. The law states that, “all citizens shall have the right to freedom of speech and expression”. However under Article 19(2) “reasonable restrictions can be imposed on the exercise of this right for certain purposes”.

The offence of Sedition has been misused by the Government in imprisoning those who differ from the Government point of view thus negating the freedom of speech guaranteed by the Constitution. A plethora of intellectuals, journalists, social activists, writers, tribal sympathizers, etc. have been put behind bars with no scope for bail or quick hearing in Courts. One remembers such tall thinkers and activists as Gautam Navlakha, Anand Teltumbde, Varavara Rao, Sudha Bhardwaj, Stan Swamy, Umar Khalid, etc. who have been arrested under Sedition/UAPA charges with no quick hope of redemption.

The Sedition law has also been invoked to arrest dissidents often without bail while they await trial — sometimes for years. Police arrested Disha Ravi, a 22-year-old environmental campaigner, for sharing a tweet in support of the Farmers’ Movement. Farmers have been arrested in good numbers for opposing the three Farm Laws that this Government wants to implement by force.

Gandhi when charged with sedition in 1922 told the Court :

“Section 124A under which I am happily charged is perhaps the prince among the political sections of the Indian Penal Code designed to suppress the liberty of the citizen. Affection cannot be manufactured or regulated by law. If one has no affection for a person or system, one should be free to give the fullest expression to his disaffection, so long as he does not contemplate, promote or incite to violence.”

Sedition has today become a convenient legal tool to stifle any voice that goes against what the State perceives as nationalism or patriotism.

We must remember at this stage what Gurudev Rabindranath Tagore warned us, “I will never allow patriotism to triumph over humanity for as long as I live.”

The Constitution of USA, whose democratic traditions the world looks up to, has a very strong First Amendment stating that Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

The attempts to regulate or restrict the First Amendment on pretext of security, patriotism or otherwise have been thrown out by the American Courts as restricting the First Amendment guaranteed under the Constitution.

On First Amendment cases the Supreme Court Justices have issued rulings that have protected the speech of unpopular individuals and groups against government censorship. Cases concerning government attempts to crush union and student protests of the Vietnam war, flag-burning and Nazi protests established free speech as an essential protection for people with minority opinions who were in danger of being silenced by the majority.

India similarly must throw out from the statute books laws like the Sedition, UAPA and other similar Acts and allow the public freedom of speech guaranteed under our Constitution.

Without public criticism and consequent change in course of action India will remain a false democracy not reflecting the will and decisions of its population. The danger to becoming an autocratic ruled country then becomes real and frightening.

Echoing the appeal of Md. Zeeshan Ahmad and Zain Haider on this Sedition issue we concur with the same, “Lack of guidelines on arrest and inquiry gives further room for abuse of this law. As the latest National Crime Records Bureau data shows, there is a mere 3.3% conviction rate for sedition in the 93 registered cases. The UK scrapped its sedition law in 2009 on grounds that it is arcane and irrelevant and suppresses freedom of speech. This should be India’s aim too. The Law Commission said in a 2018 consultation paper that it is ‘time to re-think or repeal’ the section.” 

Mr. Shashi Tharoor writing his comments on the book written by Supreme Court Advocate Chitranshul Sinha entitled ‘The Great Repression’ mentions: ”Chitranshu Sinha’s trenchant exposition of the History of sedition laws in India is an exceptionally well researched and strongly argued case against this antiquated and undemocratic tool of repression.”

(The author is Convenor, Jharkand Nagrik Prayas) 

The post The Draconian Sedition Law in Independent India appeared first on SabrangIndia.

A Delhi court has granted bail to two persons arrested during farmers protests in Delhi, under charges of sedition, forgery and public mischief. The Additional Session Judge of Patiala House court, Dharmendra Rana, in the February 15 order, held that while the offence of public mischief may be made out, which is a bailable offence, it was not convinced that offences of forgery ad sedition can be invoked against either applicants and hence, granted bail.

The applicants, Swaroop Ram and Devilal Burdak, submitted that they were falsely implicated and that no case of sedition was made out against them. They further said that police are no longer seeking the custodial interrogation and bail should be granted.

The prosecutor submitted that the applicants made a sensational Facebook Post with an intent to spread disaffection against the State and also committed forgery. The prosecution claimed that both accused posted a fake video with the description Delhi Police mae bagawat 200 police karmiyon ne diya samuhik istifa. (There is a rebellion in Delhi Police and around 200 police officials have resigned en mass.) However the posted video was related to an incident wherein some persons in Khaki (Home Guard personnel) were agitating in respect of their grievances with Jharkhand Government.

The court firstly dealt with the offence of forgery and held that it is only when a person dishonestly or fraudulently makes or executes a document with intention of causing it to be believed that such document was made or executed by some other person or by the authority of some other person by whom or by whose authority he knows that it was not made or executed that he is guilty of creating a ‘False Document’. The court held that the prosecution failed to point out any representation or endeavour on the part of the applicant/accused to cast an impression that the Facebook Page was made, executed or created under the authority of some other person.

The court then dealt with the offence of sedition and relied upon Supreme Court judgment in Kedar Nath v. State of Bihar AIR 1962 SC 955 where it held that, “The provisions of the sections (section 124A) read as a whole, along with the explanations, make it reasonably clear that the sections aim at rendering penal only such activities as would be intended, or have a tendency, to create disorder or disturbance of public peace by resort to violence.”

The court held thus: 

“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 pretence of muzzling the miscreants”

The court held that in this invoking 124A was seriously debateable and held, “In the absence of any exhortation, call, incitement or instigation to create disorder or disturbance of public peace by resort to violence or any allusion or oblique remark or even any hint towards this objective, attributable to the applicant accused, I suspect that Section 124 A IPC can be validly invoked against the applicant.”

It was also brought to the court’s notice that the applicants were not authors of the post but had merely forwarded it.

The court thus granted bail to both applicants considering the nature of allegations, grounds of parity and period of incarceration. The bail was granted subject to the applicants’ furnishing  bail bond in the sum of Rs.50,000/- with one surety in the like amount and on the condition that they will appear before the court so as not to cause any obstruction or delay the proceedings.

The court orders may be read here.

Related:

JNU Sedition case: Kanhaiya Kumar, Umar Khalid and others to face trial

Know your rights: Disha Ravi’s arrest & the Delhi police witch-hunt

Those who harbour thoughts against the nation should be eradicated: Anil Vij

The post Sedition cannot be invoked to quieten the disquiet under pretence of muzzling miscreants: Delhi Court appeared first on SabrangIndia.