Khauf Se Azadi - Assessing The Capacity Of India's Legal Framework To Protect 'Seditious' Citizens
Author: LawSphereX
Category: General Law
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KHAUF SE AZADI: ASSESSING THE CAPACITY OF INDIA'S
LEGAL FRAMEWORK
TO PROTECT 'SEDITIOUS' CITIZENS
Ayusshi, Jindal Global Law School, O P Jindal Global University
ABSTRACT
For a country that is celebrated and hailed as the biggest working democracy in the world, India is surely an independent republic state with some deprave statistics on press freedom1, especially in the last decade. Constraints on press freedom not only accentuate the attack on freedom of speech and expression but also should direct the attention to the laws of sedition in India with its colonial roots. 154 years ago, sedition as a separate offense under section 124A (Section 152 of Bhartiya Nyaya Sanhita) in India came in effect during the colonisation when it became the part of the Indian Penal Code in 1870. The British administration charged one of the most notable freedom fighters, Bal Gangadhar Tilak for his dissenting views against the British in the newspaper, Kesari.
2 Criminalisation of opinions against the government finds its place yet again in the new criminal code, BNS replacing IPC. Interestingly, the term “the Government” of Section 124A has been removed and replaced with ‘sovereignty or unity and integrity of India’ in Section 152 but the motive of silencing criticism against the State remains the same. It cannot be deemed as a missed opportunity to remove sedition as an offense in this era of modern democracy due to the addition of increased incarceration period and compulsory fine in the provision which was optional in IPC. This section now punishes the attempt, too as the wording of the statute widens the horizon for the Government to charge dissenters in greater number than before, invalidating the legal rights of the citizens.
We shall analyse the capacity of Indian justice system, or the lack of thereof, in protecting the citizens charged with the draconian law such as this which has been outlawed in many democracies like the USA, South Korea, Ghana, New Zealand, Indonesia among others by discussing judgements and legacies of ‘seditious’ people in this research essay. The Urdu phrase in the title of this essay has been inspired from an event of the same name conducted by the organization United Against Hate in 2018. 3 Is the Judiciary Doing Enough? A Look at Decisiveness in Action In the wake of newly found independence and freedom of speech and expression being enshrined in the constitution, the High Court of Madras in Romesh Thappar v.
State of Madras4 elaborated on the concept of “maintenance of public orders” “public safety”5 in a short judgement ruled in favour of preservation of the aforementioned fundamental right. This is one of the earliest cases of Sedition post-independence wherein the Government of Madras imposed a ban on release, entry and circulation of the weekly communist journal Cross Roads6 that routinely criticized the Nehru government. The petitioner and foundereditor of Cross Roads, Romesh Thappar challenged the ban on the grounds of encroachment of fundamental right to speech and expression while putting forth the demand for liberty of circulation which is attached to that fundamental right and not merely to freedom of circulation. The ban was officiated after the journal criticised the Madras government for firing at communist prisoners, leaving 22 of them dead7.
Justice Fazl Ali emphasized on the focus on context while defining the matters relating to public safety and security of the state. While describing the ban on newspapers as one of the “drastic remedies”, the court held that even if the criticism of government excited disaffection and bad feeling towards the same, it cannot be considered a valid ground for restricting freedom of expression8. Primary reading of the judgement suggests court’s stronghold on protection of the citizen’s right to express but on a closer look, it sorts of gives a disclaimer. The conditional protection of rights in the face of “undermining the security” of the state suggests court’s narrower interpretation of the law that ultimately endangers that said freedom. Madras HC closes its short judgement while showing reluctance to fully address the potentiality of misuse of sedition laws by the State.
Instead, limiting its focus to only constitutionality9. Instances concerning fundamental rights require judiciary’s prompt and decisive stand, making sure that it does not sidestep critical issues that could affect the protection of individual freedoms.
Though regarded as one of the most landmark cases on Sedition, the Supreme Court gave some considerably contradictory rulings in Kedar Nath Singh v. State of Bihar (1962)10. After being convicted and awarded sentence for Sedition by the trial and high court, the question of constitutionality of Section 124A was challenged by the petitioner before the Supreme court. The appellant Kedar Nath’s speech was held to be severe enough to disrupt the public order and jeopardize the “safety and stability of the state. ” Justice BP Sinha clarified the limited scope of Article 19, emphasizing that it is not absolute. The court’s interpretation extended so far that it began prioritizing the defence of the Government's existence over its role as the guardian of citizens' fundamental rights, as it ideally should be.
According to the judges' interpretation, any spoken, written, or visual representation that incites disaffection towards the Government would be deemed seditious. However, Justice Sinha also made it clear that no matter how strongly worded, any expression of disapproval regarding the Government’s actions would not be penalized. Court’s interpretation does not seem to stand its ground as it yet again in the subsequent paragraph elucidates how ‘a very strong criticism of measures of Government’11 might qualify for penalisation under the section of Sedition. Standing up against the exploitation of kisans and mazdoors in the face of zamindari system and taxation in no way should land anyone a conviction or a jail sentence. It should not be too far of an expectation to have when it comes to judges’ understanding of metaphors. ‘...
and the Congress leaders of India, who have made it their profession to loot the country, will be reduced to ashes and on their ashes will be established a Government of the poor and the downtrodden people of India’. 12 This was a speech radical at the most, calling for mobilization of that strata of the country that has been taken advantage of at the hands of the powerful. It leads us to ponder over how long shall it take for the learned judges to realise that as a matter of fact, speaking up for the underprivileged and abused section of the country is nothing short of patriotic. As activist and author Arundhati Roy puts it sarcastically, ‘To defend the poor is to plot to overthrow the government’. 13 The words of the statute define sedition as any action that threatens to attack the unity and integrity of India.
However, court’s interpretation of this statute, on a closer look, has been quiet classist and anti-poor when put into contexts such as this.
Vilification of Dissent and Attempt at Erosion of Freedom, Thoughts & Intellectuals Arrested in 2014 and sentenced to life imprisonment in 2017 for the charges of criminal conspiracy and five different sections under UAPA, former Delhi University professor and human rights activist GN Saibaba14 was acquitted by the Nagpur Bench of the Bombay High Court on March 5, 202415. In the Judgement running through 293 pages, Justice Vinay Joshi declared the failure of prosecution to prove the substantiality of evidences, and rendering ‘the entire proceedings null and void’ after Prof. Saibaba’s 10 painful years in custody with medical disregard towards his disability and deteriorating health conditions16. The prosecution's main argument relied only on electronic media and data stored on a hard disk seized from Prof.
Saibaba’s residence17 along with which Bombay HC found no other evidence to supplement, strengthen and carry forward the accusation. 18 The credibility of the search process was also questioned. 19 Examining the core of contention, it is important to know what the prosecution considered as ‘Seditious’; CDs, DVDs, Pen-drives, hard disks were found along with printed media like books and magazines on Maoists and Naxalites. 20 It took 10 years for Indian judiciary to arrive at the conclusion that the mere possession of material pertaining to an alternative (here, banned organization CPI-M) line of thought and belief would not be considered liable of Sedition.
‘The content of these documents if taken cumulatively, would perhaps demonstrate that the accused were sympathisers of a Maoist philosophy or sympathized with the cause of certain tribal groups or certain people who were perceived to be marginalized or disenfranchised, and mere possession of such literature, having a particular political and social philosophy by itself is not contemplated as an offence under the UAPA. ’21 Should the court’s allegedly liberal decision of acquitting Prof. Saibaba and five other accused be celebrated in the wake of his tragic passing? If the death of an activist, after a decade of struggle within the boundaries of a neutral judiciary, is the only way that can wake up the masses and evoke sympathy for his cause and the people that he championed in his lifetime, then a delayed judgment serves little purpose beyond becoming a reference in legal records.
‘Infuriated by my undying smile / They captured me again / I still stubbornly refuse to die / The sad thing is that / They don't know how to make me die / Because I love so much / The sounds of growing grass’22 Prof. Saibaba’s relentless support and advocacy for the rights of Dalits, tribals, Muslims, workers and push back against military operations in Bastar23 would remain a legacy at the core for India’s leftist movement, rejecting the neutrality and lukewarm perspective of liberals. Perhaps this is why the choice of Indian Judiciary to remain passive in the face of State’s frequent invocation of the ‘national security’ card is contributing to the active suppression of non-conformist intellectual voices.
Reimagining the Legal Potential for Country’s People and Progress Bubberjung Trisuli Venkatesh, a senior advocate and former State Public Prosecutor from Karnataka best known for representing Gauri Lankesh in over 70 cases across two decades24, actively takes up pro bono cases to fight for the rights of people from vulnerable sections like tribal, Dalit, and LGBTQ community along with individuals charged under the Sedition law25. Rarely do we ever get to hear much in detail about the works and efforts of such professionals in the legal system who work towards safeguarding the rights of those at risk of legal marginalization. Despite extensive research, little information could be found about him and his efforts, likely due to his work defending those booked under stringent sedition laws.
From representing a student charged with sedition for advocating Kashmir's selfdetermination to defending the mother of a 9-year-old student at Bidar school, accused over a three-minute anti-CAA play26, BT Venkatesh has been a committed advocate for the rights of those whose freedom of speech and expression has been encroached upon by sedition charges.
These efforts might inspire optimism for a better future where all forms of creative expressions are valued and not sent for prosecution, strangely. However, perhaps it should be reiterated back to the judiciary every once in a while, that its role is not to merely interpret laws or declare life imprisonment sentences every now and then. When the learned judges with influence and capacity assume the role of unofficial mouthpieces of the Government under the disguise of being the guardian of public law & order and state stability, the potential path for societal growth and creative evolution becomes stifled. Is the so-called fabric of the nation with the history of centuries of struggle so fragile that it comes off at seams with dissent and radicalisation of the oppressed? A moment of reflection is required.
Sloganeering: Price of Change and Sedition The court decision in Balwant Singh v. State of Punjab27 (later followed in P. J. Manuel v. State of Kerala28) is notably refreshing, especially considering the charged political climate during the Balwant Singh decision due to the assassination of former Prime Minister Indira Gandhi. The appellants were sentenced to one year of imprisonment and fine under Section 124A and 153A of IPC29 for raising allegedly contentious slogans. This decision by the trial court was later reversed and they were acquitted30. Justice A. S. Anand and Faizanuddin emphasized that police should not have read too much into the casual sloganeering by the appellants and the failure of the prosecution to establish mens rea to disrupt the public order.
31 This mens rea approach evidently explains why any reasoning about freedom of speech and expression was not given throughout the judgement. Interestingly, even though there is no mention of the term ‘separatist’, the judgment leaves us to think about how different the court’s decision would have been in present times looking at the nature of the slogans raised ‘Khalistan Zindabad’ and ‘Hinduan Nun Punjab Chon Kadh Ke Chhadange, Hun Mauka Aya Hai Raj Kayam Karan Da’32 (We will banish Hindus from Punjab for today the opportunity has presented itself to establish our rule). 33 Today, revised definition of Section 152 of BNS specifies whoever ‘encouraging feelings of separatist activities’ would be held liable.
Back then, in court’s view, the casual raising of slogans did not constitute an offense under the aforementioned section unless it incites ‘extreme hatred or disaffection’ for the Government. While the manner in which general interpretation of this section is carried out by courts remains considerably broad and vague enough to create ample potentiality for overcriminalisation, decision in Balwant Singh can still be regarded as a precedent that upholds the right to dissent. Conclusion: Hope is Radical The way forward is not fancy, it is heavy with the legacy of every Indian who stood up for the people and shut down by the cowardice of Judiciary busy ensuring the protection of the already powerful, the Government.
Reflecting on the title of this research essay and remembering Umar Khalid, an Indian political activist now entering his fifth year in jail without bail or a fair trial34 for speaking up against anti-muslim politics, it is essential to keep pushing back. With Arundhati Roy’s potential prosecution under the UAPA due to recent sanction by Delhi’s Lieutenant Governor35, it seems important to highlight her reflections on hope from one of her recent interviews36 where she asserts with a smile, ‘Hope is the building block of resistance. ’