THE WEEK|August 08, 2021
Governments have used the anti-sedition law to quell dissent. Several writers, journalists, cartoonists, politicians, activists and students have got entangled. The Supreme Court has now asked the Union government why it is not repealing the provision

On the night of December 17, 1995, a large consignment of weapons, including AK-47 rifles and several hundred rounds of ammunition, was airdropped from an aircraft in the Purulia district of West Bengal. The weapons were confiscated by the police after the locals informed them about the mysterious event. A Dane named Niels Holck, also known as Kim Peter Davy, was later found to be the kingpin behind the operation, and the Central Bureau of Investigation slapped sedition charges in the case.

The sensational events captured the imagination of the public and the political circles: there were allegations that the arms drop was plotted to destabilise the Left Front government of Jyoti Basu in West Bengal. The CBI issued a statement in 2011 dismissing claims that the operation had the nod of “political forces” at the Centre.

An illegal act of this sort, that has the potential to incite an armed revolt against an elected government, can best be described as a seditious act and not just a terrorist plot.

Loknath Behera, a senior IPS officer involved in the investigation of the Purulia arms drop case, said the anti-sedition law should be used sparingly since it entails heavy punishment up to life imprisonment. Moreover, it is also a difficult offence to prove in court. “Sedition cannot be invoked for small offences,” he said. “It has to be used judiciously in the context of the Kedar Nath Singh [vs the State of Bihar] judgment [of 1962], where the constitutionality of Section 124A of the Indian Penal Code was tested and upheld.”

In the Kedar Nath Singh judgment, the Supreme Court narrowed down the scope of the anti-sedition law, saying that mere criticism of the government was not seditious unless it incited violence or disturbed public order. This meant that if the law was not read in the context of this interpretation, it threatened to engulf any expression of opposing opinion— written or spoken—qualifying it as incitement of hatred or disaffection towards the government.

In the last few years, the National Investigation Agency (NIA) has slapped sedition charges in a series of cases. Leaders of the proscribed organisation Sikhs for Justice (SFJ) and terror-accused in Kashmir to politicians and activists protesting the Citizenship (Amendment) Act in 2019 became the accused in these cases. The NIA, set up in the aftermath of the 2008 Mumbai terror attacks, has mixed experience in courts on sedition cases. While the agency successfully proved the charges in some, it failed in many others.


Supreme Court judgment in the Vinod Dua case shows the law enforcement system requires an overhaul


Time and again, the judiciary has played a critical role in the functioning of democracy by setting in motion reforms that are followed up by the executive or even the legislature. The latest Supreme Court judgment in the sedition case against journalist Vinod Dua can be one such opportunity, if used judiciously by other arms of the government, to overhaul the law enforcement system that seems to have made too many mistakes when it comes to the interpretation of Section 124A of the Indian Penal Code that defines sedition.

Dua was worried after sedition and public mischief charges were slapped against him over his YouTube videos. A journalist for many decades who had seen successive governments and critically analysed their policies, he had sleepless nights and court updates to follow. He was reassured by his lawyer Vikas Singh, but the final relief came for him when the apex court heard his case and quashed the FIR.

“If the investigation drags in such cases, it demotivates and stifles the freedom of expression further because the accused is always scared and careful. It actually amounts to suspension of fundamental rights,” said Dua.

The FIR against Dua had been filed in May 2020 based on a complaint—by a BJP leader in Himachal Pradesh—that the senior journalist had made serious allegations against the prime minister. Quashing the FIR, the apex court once again held that, “every journalist will be entitled to protection in terms of Kedar Nath Singh judgment”. This essentially meant that journalists cannot face an FIR for raising concerns or criticising the government unless there is an active call for incitement to violence as laid down in earlier judgments.

The debate over the interpretation of the anti-sedition law has devoured the time of many courts for decades. That's because a local police station or the policeman did not read or understand the Supreme Court judgment in the landmark 1962 Kedar Nath Singh vs State of Bihar case, or the law enforcers were not held accountable after the sedition charges were thrown out by court.

Political pressures aside, the onus still lies on the policeman who registers a first information report before he begins an investigation that leads to the framing of charges against a person accused of a cognisable offence. But the blame cannot be put solely on the policeman. The question here is who is responsible for explaining to the constable or SHO whether an individual can be charged under sedition?

“There should be a circular or clear guidelines issued by the state government or police chiefs to every police station using simple language to educate the local policeman on how the offence of sedition needs to be read [in accordance] with the Kedar Nath Singh judgment of the Supreme Court,” said Singh.

The home ministry's role in issuing advisories to ensure the proper use of the Indian Penal Code and other laws by enforcement agencies is well known. And, at the state level, the police chiefs issue circulars from time to time.

On July 14, the Union home ministry asked states and Union territories to direct police stations not to register cases under the repealed Section 66A of the Information Technology Act, 2000, which criminalised the posting of any “offensive” information online. It also asked states and Union territories to sensitise law enforcement agencies for the compliance of the order issued by the Supreme Court on March 24, 2015, which had struck down the section. “The MHA has also requested that if any case has been booked in states and UTs under Section 66A of the IT Act, 2000, such cases should be immediately withdrawn,” said the MHA advisory. Similar guidelines can be issued by the Centre or states, asking state police units to educate its men on handling cases under the anti-sedition law.

“The anti-sedition law has its relevance,” said a senior NIA official. “When a banned outfit like the SFJ, which propagates the idea of a separate Khalistan state, enters into a social media campaign besides invoking the anti-terror law, such activities also attract penal provisions defined under IPC Section 124A which explains the offence more clearly.”

But there has been a plethora of cases where courts have acquitted the accused. Recently, the NIA court in Guwahati acquitted activist and MLA Akhil Gogoi and three others in a sedition case slapped against them during the height of the anti-CAA protests in Assam in 2019.

Successive governments have used the anti-sedition law with impunity to quell dissent. The result is that several writers, journalists, cartoonists, politicians, activists and students got entangled in the dreaded colonial-era statute. And, the level of sedition charges has stretched the imagination of the law itself.

Two months ago, a sedition charge was slapped against an Assam woman for using a table cloth that resembled the national flag while celebrating Eid. In June, the Guwahati High Court granted her bail. In another instance in Punjab in 2020, a political leader was accused of sedition when he posted a message on social media about the lack of ventilators during the pandemic. The bail order by the Punjab and Haryana High Court termed the use of sedition in this case as an “overzealous exercise of power” by the police. The trial is yet to commence.

The courts are now dealing with several cases of visibly apparent misuse of the anti-sedition law, and this has drawn the ire of the Supreme Court. On July 15, the Supreme Court asked the Union government as to why it was not repealing the provision used by the British to silence people like Mahatma Gandhi.

“Is it still necessary to keep this statute even after 75 years of Independence?” asked the three-judge bench headed by Chief Justice N.V. Ramana, while agreeing to examine the pleas filed by the Editors Guild of India and an army veteran, challenging Section 124A. The bench issued a notice to the Union government and pointed out that the conviction rate in sedition cases is extremely low.

Section 124A was inserted into the IPC by the British in 1870. Repealing obsolete and archaic laws was a poll promise of the BJP. After it came to power, more than 1,200 redundant laws were struck off. A special committee has been set up in the prime minister's office to review archaic laws and make recommendations to the government. But the final word on making changes to the Code of Criminal Procedure, IPC and anti-terror laws like the Unlawful Activities (Prevention) Act (UAPA) and National Security Act lies with the Union ministry of home affairs (MHA). The ministry has constituted a five-member committee to look into overhauling such fossilised legislations, or removing them.

With the review of the sedition law on its table, it is not the first time Home Minister Amit Shah and Home Secretary A.K. Bhalla are burning the midnight oil. The first option is to revise the draconian legislation to make it in sync with the changing times. Second, to issue guidelines based on the directions of the Supreme Court, and third, to strike it down if it has outlived its purpose.

“There is a need for wider consultation on the matter,” said D. Raja, general secretary of the Communist Party of India. “The government should consult stakeholders and get public opinion while making changes to any laws.”

In 2012, the UPA government had walked a few steps to review the anti-sedition law but developed cold feet. A group of ministers was then constituted to suggest changes based on recommendations of the law commission. Former home ministry officials said the view taken was to retain the law after revising the definition for sedition. Several changes were proposed including replacing disaffection against “government” with disaffection against “Parliament, state legislature, Constitution, national flag, national anthem and national emblem”, and reducing the punishment for sedition to a seven-year jail term with a fine. But the proposals never saw the light of day. In the meantime, law enforcement agencies were asked to avoid misuse of sedition and make use of other provisions in the IPC to deal with similar offences of a lesser category.

In the mid-1980s, the Union home ministry had shown greater political will when it came to drafting a law to quell separatist tendencies. P. Chidambaram, former Union home minister told THE WEEK: “In 1987, the Terrorists and Disruption Activities (Prevention) Act was drafted and passed in the context of the rising terrorism in Punjab. It was intended to be a temporary law.” Chidambaram, who was then minister of state for internal security, sat down with M.K. Narayanan, the then director of Intelligence Bureau, and a senior Punjab police officer, to draft TADA that encompassed a wide range of activities, including protests of all sorts. For the first time, it made confessions before a police officer admissible in court, put restrictions on bail and gave enhanced powers to detain suspects. TADA was in force between 1985 and 1995.

According to police officers of that era, the law was grossly misused. Over the years, the Supreme Court read down the application of the law to prevent its misuse. “Safeguards were introduced and the law was upheld by the courts, but still, the law was misused,” said Chidambaram. “The Congress government under P.V. Narasimha Rao allowed the Act to lapse.”


It is a misconception that section 124A is necessary to prevent insurrection


On the morning of February 1, 2020, I travelled from Hyderabad to Bidar in Karnataka to meet Nazbunnisa and Fareeda Begum, imprisoned in Bidar district prison. Nazbunnisa has a 12-year-old daughter who studies at the school where Begum is the headmistress. I have seen many absurd things in my three-decade-old political career, but this incident is the strangest. Nazbunnisa and Begum were arrested for the crime of sedition, except that they did not commit any crime at all.

Briefly, these are the facts: the daughter, who was 11 then, participated in a school play around the time when Muslims across India were participating in the movement against the Citizenship (Amendment) Act and related issues. A local worker of the Akhil Bharatiya Vidyarthi Parishad objected to a specific monologue in the play that was delivered by the girl: “I will ask him (Prime Minister Narendra Modi) where he was born and where his documents are. If he can’t show them, I will hit with a chappal. Amma, I’m scared. Where do we go, leaving our home, our country and our livelihood?”

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