PARLEY Comment

Should the sedition law be scrapped?

An Indian woman holds a placard during a protest against the sedition case filed by police against a school after a play performed by students denouncing a new citizenship law, in Bangalore, India, Tuesday, Feb. 4, 2020. India's ruling Hindu nationalist-led government said Tuesday it was still weighing whether to roll out a nationwide citizenship registry, an exercise it says would weed out illegal foreign nationals, amid ongoing protests against a citizenship law that fast-tracks naturalization for some religious minorities from three neighboring countries but not Muslims. (AP Photo/Aijaz Rahi)

An Indian woman holds a placard during a protest against the sedition case filed by police against a school after a play performed by students denouncing a new citizenship law, in Bangalore, India, Tuesday, Feb. 4, 2020. India's ruling Hindu nationalist-led government said Tuesday it was still weighing whether to roll out a nationwide citizenship registry, an exercise it says would weed out illegal foreign nationals, amid ongoing protests against a citizenship law that fast-tracks naturalization for some religious minorities from three neighboring countries but not Muslims. (AP Photo/Aijaz Rahi)

On March 2, a 43-year-old man was charged with sedition after he allegedly chanted pro-Pakistan slogans before the mini Vidhan Soudha at Kundapur in Karnataka’s Udupi district. Last month, the police arrested a school principal and a parent in Bidar, Karnataka, for an allegedly seditious and inflammatory play against the Citizenship (Amendment) Act (CAA). Over the last few months, many people protesting against the CAA have been charged with sedition across the country. In a conversation moderated by Jayant Sriram , senior Supreme Court advocate Sanjay Hegde and Delhi government’s addition standing counsel (criminal) Nandita Rao discuss why sedition still exists in the statute book, its misuse, and whether it should be done away with. Excerpts:

It is a matter of concern that a large number of sedition cases have been filed against people for protesting against the CAA. Data from the National Crime Records Bureau (NCRB) show that 194 cases of sedition have been filed since the CAA was passed on December 11, 2019. More cases of sedition have been filed since December 11 than in the last three years put together, according to NCRB data. The data also show that while the number of sedition cases filed has been going up every year (numbers for sedition cases started being recorded from 2014) in the last four years, only four cases actually resulted in conviction. So, how useful is the sedition law?

Sanjay Hegde: The point of the sedition law is essentially that of suppressing free speech and free thought, both of which are unpopular with the government. Where a critic can be silenced by the mere fact that there is a possible life sentence — that itself acts as a deterrent. These cases are often invoked against show-piece dissenters so that the rest fall in line. Governments are not really interested in convictions. In many of these cases, sanctions are also not given, but it is a useful tool in the hands of the local policemen who can first register a case. It’s also a useful tool in the hands of a local leader or the head of some faction who wants to shut down a particular dissenter in the locality. He can just rush to a police station, file a complaint, and urge them to take action. He then gets his nationalistic brownie points. And the speaker is often left wondering whether that case will proceed further. It has a chilling effect on people who think and speak freely. I don’t think any government is interested in actual prosecution. Most cases that are filed would not end in conviction if Section 124A, as read by the Supreme Court in Kedar Nath Singh (1962), is actually applied — often the speech complained about does not result in any actual incitement to violence whatsoever.

Nandita Rao: Sedition is an offence which existed in our Indian Penal Code (IPC) before we got Independence because the colonial master wished to penalise anybody who was trying to overthrow the state. But the irony is that in independent India, of late, this provision is being used to bully and terrorise citizens. And in the Bidar case, where a parent and the principal of a school were charged with sedition for staging a play critical of the CAA, we saw that it was used — or rather misused — to bully and terrorise small children and a young woman. So, I think when the state begins to terrorise people with laws, then we are dangerously flirting with fascism.

The Supreme Court, in its interpretation of Section 124A, clearly says that it has to be against the state, not against the government. I can criticise the BJP, I can criticise the Congress, I can criticise Mamata Banerjee, I can criticise the Communist parties. That is not sedition. When I start criticising the constitutional state of India, that is when I invite the charge of sedition and even there the Supreme Court clearly says that there has to be a direct incitement to violence. So, sedition is a very specific and a very serious offence, and when it is used to silence and terrorise the ordinary citizen who is raising a grievance, it is terrorism by the state. I really think that the National Human Rights Commission is duty-bound to map all these misuses of the sedition law. It should make the Commissioner of Police of that State personally responsible.

 

Sedition is a colonial relic and I think we can all agree that it’s being misused widely. Why then has it not been repealed yet? Why has it survived in the IPC for so long?

Sanjay Hegde: Sedition as a concept comes from Elizabethan England, where if you criticised the king and were fomenting a rebellion, it was a crime against the state. When they ruled India, the British feared Wahhabi rebellion. They brought the [sedition] law in, and it was used against our freedom fighters as well. You must remember that both Mahatma Gandhi and [Bal Gangadhar] Tilak were tried under this law and sentenced. When we became free we thought this law would go.

Everybody promised that it would, but nobody actually did it. And they didn’t do it because every administrator has this thought that dissent is okay, but beyond a certain point it gets dangerous and an administration must have the means to control it. Now we have to ask, who controls it? It’s not a wise administrator who controls it or administers it. It is administered from the police thana level. Previously policemen were much more independent. But since Indian independence, the independence of the police has also been severely compromised. So, any local leader can almost bully a policeman into registering a case. After a case is registered, its purpose is done because it may get government sanction to proceed to trial. Or it may not. Now, with the explosion of the media, the social media and with other pressures, people find it more convenient to just sanction the prosecution and say, let the courts take care of it. But what this has led to is a situation where the process itself becomes the punishment and the process itself becomes a demonstration.

The Congress party manifesto for the 2019 general election promised to do away with sedition. I’ve heard senior Congress leaders say, which idiot asked the manifesto committee to include this because it looks so ‘anti-national’ in the eyes of the voters. The average voter unfortunately just thinks that if you say something against a government elected by any majority, you are speaking against the nation. I think we need to do away with this law as soon as possible if we are to be a truly free and independent country.

Nandita Rao: I don’t think one needs to remove this law. It falls on the judiciary to protect Articles 19 and Article 21 of the Constitution. Justice Kurian Joseph recently made some anguished remarks that the police is neither independent nor professional. My position is that the time has come for the judiciary to set up a search committee in every State, and a particular judge of the High Court has to suo moto check each sedition case being filed. And if it is baseless, if it has been used to only terrorise the ordinary citizen expressing his views, it must be quashed without putting the onus on the citizen to come to the court. It’s true that the police have become totally politicised, but who is to stop this? Who is to guard us? It is the judiciary that has been charged with this job and they can’t expect the ordinary citizen to always come to the court. Our legal aid system is just not as robust as it should be. The problem is not with the section, but with its abuse.

Sanjay Hegde: I think the problem is with the section itself. As somebody correctly said, the essence of tyranny is in the making of harsh laws and then using those laws selectively against the people. The only current conviction which still stands under sedition, to my mind, is that of Binayak Sen and that was under the UPA government.

So, it’s like this, administrators like this tool handy. Take away the tool and come back with specific laws on hate speech and speeches that incite violence. That is understandable, but to elevate ordinary dissent into an anti-national insurrection or uprising is certainly not on. The point is that if you keep a harsh law on the statute book, there will be misuse. And there’s no sense applying ointment thereafter. This has been on the statute book for more than 100 years. Experience has shown that it does not actually work. Experience has shown that it has led to great abuse. It’s time that we scrapped it and came up with something else.

NR: One thing here is that hate speech is a totally different offence from sedition. Hate speech is when you provoke violence between two communities. You are not abusing the state. You are not telling people to revolt against the state. When you challenge the constitutional scheme of India, that is sedition. But when you provoke violence against a particular community, that is hate speech. It’s irrelevant which political regime has misused this. The question is, why has the guardian of our Constitution, the judiciary, with all its powers, failed to put an end to it and reassure the citizen that the right under Article 19 right is protected by the judiciary? So, any provision can be misused. If this law is removed, some other law will be misused. The judiciary really needs to start acting.

Will the impetus to repeal or change the law come from the judiciary or will it be Parliament that initiates the change?

Sanjay Hegde: I don’t think that there is a case for continuing this law, but there will never be political will to do away with it. Therefore, it just may be that the judiciary will have to re-look its earlier judgments and say that these filters simply do not seem to be working with the passage of time. What we had earlier held to be constitutional with safeguards and riders is no longer constitutional. It may just be that if the politicians don’t do it, then one day the judiciary in a Bench larger than five may have to take a fresh look at the sedition law and strike it down altogether. I don’t know which process will be longer.

Nandita Rao: I don’t agree because our judiciary has always been pro-executive. Also, it is only Parliament that revoked a law like POTA [The Prevention of Terrorism Act, 2002], which was draconian and flagrantly misused. All these laws have always been upheld by the judiciary. It is only the parliamentarians, when they get a push from the public, who swing into action. So, I do have that little faith in Parliament.

It’s just that today we have an authoritarian Parliament, which does not respect our Constitution. I correct myself, our constitutional freedoms.

Nandita Rao is an advocate and Additional Standing Counsel, Government of Delhi; Sanjay Hegde is a senior advocate of the Supreme Court.


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