The Chilling Effect of a Stricter Sedition Law in the Pipeline
June 12, 2023Sweeping and Regressive Recommendations by the 22nd Law Commission
V Prajapati
Geared in the direction of retrogression and absolute erasure of remnants of democratic rights, the 22nd Law Commission of India in its 279th Report titled Usage of the Law of Sedition not only upheld the constitutional validity of Section 124A of Indian Penal Code but also made the law even more stringent! Kowtowing to the diktat of ‘sceptre’ of a fascist regime, the Commission hailed the draconian law despite it being under intense public scrutiny for its deployment as a tool for suppression of dissent against the ruling dispensation as well as empowerment of the state to prosecute with absolute impunity.
In the challenge drawn upon Sedition before the apex court in the S.G.Vombatkere case (2021) on the grounds of violation of the Right to Life and Personal Liberty, Right to Equality and Right to Freedom of Speech and Expression, the union government on the 9th of May, 2022 rushed in to interject through an affidavit stating that ‘the Hon’ble PM believes that at a time when our nation is marking ‘Azadi ka Amrit Mahotsav’ (75 years since independence) we need to, as a nation, work even harder to shed colonial baggage that has passed its utility which includes outdated colonial law and practices’ and hence urged the court to ‘not invest time in examining the validity of sedition once again’ and ‘wait for the Executive to reconsider the provision before an appropriate forum’. Naturally, sensing the imminent danger of repeal of Section 124A, a law that provided unbridled power to curb free speech, the government intervened to grab the ball in its court. Despite hiding behind the veil of acting as a guardian of ‘civil liberties’ and ‘constitutionally cherished freedoms’, it lay bare its hidden intent of retaining the law by craftily seeking time from the court to re-consider and re-examine the law in light of ‘sovereignty and integrity of the nation’, thereby putting the court proceedings on hold.
On the 11th of May, the order passed by the three-judge bench (including Chief Justice NV Ramana) that put on hold Section 124A and stated that the 162-year-old colonial era law be kept in abeyance till the union government reconsiders the provision was hailed as ‘historic’. A portion of the order read as follows, ‘it is clear that the Union of India agrees with the prima facie opinion expressed by this Courtthat the rigors of Section 124A of IPC is not in tune with the current social milieu, and was intended for a time when this country was under the colonial regime’. With a progressive-minded Chief Justice on board, the maximum that the apex court could do was to put a stay on the oppressive law, thereby allowing further opportunity and delay at the discretion of the union government and at the same time presenting a false opinion that the government is said to have agreed regarding redundance of Section 124A in contemporary times!
Needless to state, there is ample evidence in the public domain to show how there has been close to a 30% rise in the number of sedition cases filed each year between 2014 and 2020. An empirical and investigative study by Article 14 titled A Decade of Darkness mentions that 96% of sedition cases filed against 405 citizens for criticizing politicians and governments between 2010 and 2021 were registered post 2014 with 149 of them accused of making ‘critical’ and/or ‘derogatory’ remarks against Prime Minister Narendar Modi and 144 against Uttar Pradesh Chief Minister Yogi Adityanath.
Additionally, the SC went on to state that it ‘hopes and expects that the State and Central Governments will restrain from registering any FIR, continuing any investigation or taking any coercive measures by invoking Section 124A of IPC while the aforesaid provision of law is under consideration’. The language of ‘hopes and expects’ (which should have otherwise been directive in its tone) with respect to absolute curb on implementation of S. 124A during re-examination brings forth the hapless state of affairs in the apex court. Forget about prompt action when fundamental rights get infringed, the SC is not even uncompromising in its words. The leniency and sluggishness shown in the treatment of an oppressor reflects in fair proportions, the massive shrinkage in the role that has been left to the Indian courts, that is serving solely as institutions providing moral justification to the fascist regime. An interesting example of how despite the SC having struck down S. 66A of the Information technology Act, 2000 for containing unreasonable restrictions to online speech in 2015, FIRs under the outlawed and unconstitutional provision continued to be filed till recently! This only goes on to prove that judgments, as radical as they may be, are rendered inoperable by a fascist dispensation. In fact, the anti-thesis of rights becomes the rule of law. The ideology of the ruling dispensation becomes the guiding light for all institutions, be it the police, bureaucracy, judiciary, commissions et al. Therefore, there remains little hope from the topmost court of this country that in the upcoming months, it would dare to strike down S.124A by overruling Law Commission’s recommendations or even continue to act as a balance between citizens’ rights and state’s powers.
Commission’s Grounds For Retention Of Sedition
The Commission begins with listing out safeguarding the unity and integrity of Indiaas the most important justification for retaining the law. To utter shock, it states that ‘even though there are Central and State laws to deal with terror cases (like the Unlawful Activities Prevention Act, 1967…), Section 124A of IPC serves to be the traditional penal mechanism to address the issue. Prompt and effective suppression of disintegrating tendencies is in the immediate interest of the nation.’ It becomes hard to digest the fact that despite existence of a framework of anti-terror legislations (UAPA, NSA, Arms Act, AFSPA et al) which provide wide detention, arrest, search and seizure powers to the Police, allow indefinite delay in trial, have difficult bail procedure and permit narrow ambit of rights to undertrials, the Law Commission in showing deep concern for the government doesn’t want to let go off even a single anti-people law, rather provide more teeth to it. This report gestures towards the enduring reluctance of the state in letting go of a law that serves the purpose of curbing dissent, even though it now possesses newer and shinier tools of repression. The other way round, it can be said that even with the repealing of S. 124A, other repressive laws would still be effective in incarcerating activists, writers, students, lawyers et al. Either way, it is the government that stands to win.
It was these laws that have been evoked against peaceful dissenters like activist Akhil Gogoi, Dr. Kafeel Khan, photojournalist Masrat Zahra and others. It is noteworthy that these laws have no mechanism to inculpate or penalise the police (while acting for the ruling government) who fabricate cases and file trumped up charge sheets. No where does the State stand up to the scrutiny of Judiciary for mental, physical and economic torture while in custody.
Secondly, it regards it as a reasonable restriction to free speech under Article 19(1)(a) basing itself on the faulty precedent of Kedar Nath v State of Bihar (1962) which punishes even mere tendency to incite violence even if no such violence or disorder has taken place! It openly ignores the settled law under Balwant Singh v State of Punjab (1987) which held that mere words or slogans against the State which do not lead to violence cannot lead to invocation of sedition as well as S. Rangarajan v Jagjivan Ram wherein it was held that ‘The anticipated danger should not be remote, conjectural or farfetched. It should have proximate and direct nexus with the expression. As per Shreya Singhal judgment (2015) where SC held that vague and over-broad offences would be unconstitutional, the Commission should have ideally recommended repealing of the law due to its manifest arbitrariness. It is ironical that despite having mounting precedents to the contrary, the Law Commission conveniently maneuvered through the jurisprudence to cherry-pick those judgments that indiscriminately allow a fascist regime to curtail even the minutest form of resistance. It has become sufficiently clear that the intent of the regime is to assume absolute control over thought processes of each individual within society in order to neutralise any potential threat of overthrowal.
Thirdly, it disregards colonial legacy as a valid ground for its repeal. It goes on to write in its Report that ‘The mere fact that a particular legal provision is colonial in its origin does not ipso facto validate the case for its repeal. The requirement of any such legal provision in the light of present state of circumstances is what needs to be critically analysed. The logical deduction of the above statements would mean that an anachronistic law (which ought to be removed from the statute books) which carries the historical baggage of injustice and exploitation nevertheless stands relevant for the people! Such is fascism which compels the struggling masses to adjust itself to the brutal practices that happened ages ago without protesting.
Lastly, in dealing with the question of misuse, the Commission quickly wards it off by putting the entire burden upon the police who ‘whimsically’ interpret the law. It comments that the misuse could be checked through procedural safeguards and did not warrant repeal. In its own words, ‘protecting the country against sinister agenda of subversive forces far outweighed the concerns of misuse.’
In the background of egregious justifications by the 22nd Law Commission to retain and consolidate the law on Sedition, it is nothing short of an unfortunate coincidence that its Chairperson Justice Ritu Raj Awasthi who formerly served as the Chief Justice of Karnataka High Court, was a part of the three-judge Bench which upheld the state govt’s Order banning wearing of hijab by girls in educational institutions citing dress code as a reasonable restriction. In the regressive verdict, no disciplinary enquiry was initiated against principal and teachers of the government college. Moreover, the bench remained silent on the immediate threat to life and liberty of Muslim girls by Hindu extremist groups who brazenly engaged in discrimination both on religious and sexual grounds.
Justice Sudhanshu Dhulia in his dissent in the split verdict by SC held that wearing of hijab was simply a matter of choice and prohibition would mean invasion into her privacy and dignity. The issue still stands unresolved because of the split verdict and hence requires a larger bench for adjudication. Sadly, the Karnataka HC verdict still holds the field.
Post his appointment as the Chairperson on 7th of November, 2022, Union Law Minister Kiren Rijiju commented that the issue related to Uniform Civil Code may be taken up by the 22nd panel! Clearly, the separation has reduced to a fine line between Judiciary and Executive!
Relevant History, Facts And Figures
The law on Sedition was first enacted around 17th century in England to protect the Crown and the State from any potential uprising or a popular revolt and subjugate, intimidate and suppress dissent by Indians. The independent India while adopting Constitutional Democracy retained this anti-democratic law in order to stifle criticism against the government of the day, its policies and politics.
Post independence, sedition was dropped from the Constitution in 1948 after Constituent Assembly debates. KM Munshi moved an amendment to remove ‘sedition’ as a ground to impose restriction on free speech. The word ‘sedition’ thus disappeared from the Constitution when it was adopted on 26th November, 1949. However, S. 124A continued to stay in the IPC.
It is ironical that while introducing the First Amendment to the Constitution in Parliament in 1951, Nehru said that, ‘Now so far as I am concerned that particular Section (124A IPC) is highly objectionable and obnoxious and it should have no place both for practical and historical reasons, if you like, in any body of laws that we might pass. The sooner we get rid of it the better.’ The First Amendment strengthened Article 19(2) through addition of two expressions i.e., ‘friendly relations with foreign state’ and ‘public order’. It was Indira Gandhi’s government that made Section 124A a cognisable offence for the first time, thereby authorising the police to make arrests without a warrant.
UPA II set the Sedition trend in an offensive against activists and intellectuals in 2010 in Kamrej, Gujarat with a background similar to Bhima Koregaon. They were accused of ‘carrying out anti-national and unconstitutional activities and trying to instigate the minority and Adivasi people’. In about 2012-13, when the Indo-Russian Nuclear deal came about to set up nuclear power reactors in Kudankulam, Tamil Nadu, the villagers protested against this construction keeping in mind the Fukushima disaster in Japan. The then AIADMK govt. under CM J Jayalalitha charged close to 9000 people (mostly from fishing communities) with sedition! Later, the conviction of Binayak Sen and the arrest of Aseem Trivedi pushed conversation on sedition to the forefront.
Thus, Congress paved the way for recognition and implementation of a draconian legislation like 124A and BJP used it blatantly. Since 2014, there has been a 190% meteoric increase in number of women charged with sedition. The 519 sedition cases filed in the time period 2014-2020 of Modi govt. were largely against “protest movement”, “journalists” and “intellectuals”. In the words of Madan Lokur, Retd. Justice, commented that ‘the law is not being misused but is being abused.’ As per Article 14’s research, out of the 126 people for whom trials got concluded, 98% were acquitted of all charges, 13 of charges of sedition only and 13 were convicted which makes it a conviction rate of 0.1%. A significant number of cases were found to be booked under pressure by Hindu extremist groups namely Bajrang Dal, Hindu Yuva Vahini, Vishwa Hindu Parishad among others.
In 2020, little children of a school in Bidar, Karnataka were questioned for doing a play against the Citizenship Amendment Act while a widowed parent was jailed for a substantial time. In 2021, Disha Ravi, a climate change activist was hijacked to Delhi for dissemination of a toolkit about farmers’ protest. In one of the instances during pandemic, asking for ventilators in a Ludhiana hospital to combat Covid-19 came to be charged with Sedition. Protests around CAA and farm laws and even cases filed in the aftermath of Hathras gangrape and murder invited Sedition charges.
Conclusion
In the Anti-Duhring, Friedrich Engels writes,
“The economic structure of society is always the real basis, starting from which, we can alone work out the ultimate explanation of the whole superstructure or juridical and political institutions as well as of the religious, philosophical and other ideas of a given historical period.” In the crisis ridden times of decaying capitalism that we are living in, the social, cultural, legal, philosophical and political changes that envelope us are rooted in the economic crisis striking both developing and developed economies worldwide. The ruling dispensations in the process of serving their monopoly capitalist masters (trapped in irresolvable and irrecoverable economic crisis) are compelled into setting up a legal framework comprising of courts and laws that do not tender to the fulfilment of constitutional goals but profit maximization. Naturally, in order to suppress a crisis involving monopoly capitalists on one end of the spectrum and a sea of toiling masses on the other end, from becoming a full-blown crisis bearing revolution within itself, the dispensations throw away the garb of bourgeoisie democracy, to reveal their fascist nature. They deploy the most brutal and inhumane means of crushing people’s voices. Laws such as Preventive detention, UAPA, NSA, Arms Act, AFSPA et al come handy at the time when the State fears its upheaval the most because of massive exploitation, human rights violations, unemployment, poverty, hunger & malnutrition et al. It is solely in this light that we can understand the crisis at the base and its turbulences within the superstructure.