Charge of sedition to silence critics & the difference in context between ‘maro’ and ‘goli maro’

The Supreme Court (is known to have drawn) a correlation between sedition and violence, sedition and inciting violence, and sedition and tendency to incite violence – not just simple violence but violence of such a degree as to bring it within the purview of public disorder.

So, when you have rival gangs confronting each other and one of them shouts maro, a law and order situation of rioting and attempt to murder arises, not of sedition. The police, lawyers and judges have dealt with all such cases purely as a law and order problem.

However, depending on the occasion and context, when a speaker raises a slogan at a public gathering of supporters by shouting goli maro, a charge could possibly be laid of tending to incite violence or incitement to violence and raising a public order issue rather than a law and order issue. The distinction is quite clear. And should be clear to any policeman and Magistrate.

On the other hand, when there is a call to protest for a cause without any incitement to violence, it would not be sedition under any circumstances. For example, when a call was made for large numbers to assemble on the lawns of India Gate to protest against the rape and murder of Nirbhaya, the organisers of the protest were not committing sedition.

Similarly, when India Against Corruption peacefully protested on the Ram Lila grounds, the organisers could not be held liable for sedition. This is extremely important for distinguishing between free speech and sedition, but unfortunately the distinction is being lost sight of by the establishment.

Free speech and the Press: In last few years the establishment has displayed a new determination and great ingenuity in securing conformity and obedience from the Press. The cumulative effect is chilling.

We all recall Mr. L.K. Advani’s observation that during the Emergency journalists were merely asked to bend but they chose to crawl. Today, there is no Emergency and nobody has asked the media to bend, yet the perception (maybe wrong) is that they are crawling. It is quite a mystery.

There are two possible reasons: The first is a June 2020 report by the Rights and Risks Analysis Group which recorded that “A total of at least 55 journalists faced arrest, registration of FIRs, summons or show causes notices, physical assaults, alleged destruction of properties and threats for reportage on COVID-19 or exercising freedom of opinion and expression during the national lockdown from 25 March to 31 May 2020.”

These measures were taken in 20 States and Union Territories and included charges of sedition, promoting enmity among different groups, causing breach of peace and so on.

The second possible reason is that an unseen “iron hand” has been used to silence dissent and criticism.

In May, an egregious case concerning the freedom of speech related to the arrest of the editor of a news portal. His alleged crime of sedition was spreading fake news by speculating that the Chief Minister of the State is likely to be replaced for his inept handling of the pandemic and thereby exciting disaffection against the government.

In this particular case, while rejecting the application for bail, the Magistrate is reported to have said that the journalist was trying to destabilize the government and what he said was a contempt against the government. Fortunately, a higher court granted him bail but after he had spent about 15 days in custody.

In June, a senior and respected journalist had a sedition charge levelled against him for a YouTube show and had to petition the Supreme Court for staying his arrest. The allegations may have been reckless or bizarre (as they have been described) but the question is whether they can be classified as seditious given the law laid down by the Supreme Court over 50 years ago? The chilling message to the Press is to crawl or else ….

Just a few days ago, the horrible gang rape and murder of a young girl in Hathras resulted in another and rather ingenious method of restricting the freedom of the Press. With a view to prohibit the media from reporting anything about the events, the establishment completely cordoned off the entire area with a few hundred policeman and issued a prohibitory order under Section 144 of the Cr.P.C. so that nobody could enter that area.

Some intrepid journalists attempted, individually, to meet the family of the victim without violating the prohibitory order but were stopped from doing so on the basis of some undisclosed order said to have been passed by some higher-ups. This is nothing but an egregious violation of the freedom of the Press through a bizarre abuse of the law.

Everyone is hearing and seeing what is going on, but is anybody listening? The other question to be asked in this context is can any serious journalist function fearlessly if an opinion expressed, however absurd or bizarre, leads to arrest and a charge of sedition followed by a long-drawn battle in the courts? Can such serious charges be levelled so casually – and remember a free Press is the fourth pillar of democracy.

Weaponising the sedition law: The National Crime Records Bureau started keeping a record of sedition cases in 2014 and every year has seen a spike in sedition cases.

The number reached a high of 70 cases in 2018. Figures for 2019 recently released by the National Crime Records Bureau reveal that 93 cases were registered – a 30% increase. Almost every State seems to have weaponised sedition as a means of silencing critics and the numbers are increasing. Any statement is good enough for a sedition case, and this is not in just a few States; it is in almost every State and Union Territory.

On 31st October, 1984 the day Mrs. Indira Gandhi was assassinated, two public servants shouted “Khalistan Zindabad”. The atmosphere in the country was charged and yet the Supreme Court held that this did not amount to sedition.

The Supreme Court held:

It does not appear to us that the police should have attached much significance to the casual slogans raised by two appellants, a couple of times and read too much into them. The prosecution has admitted that no disturbance, whatsoever, was caused by the raising of the slogans by the appellants and that in spite of the fact that the appellants raised the slogans a couple of times, the people, in general, were un-affected and carried on with their normal activities.

The casual raising of the slogans, once or twice by two individuals alone cannot be said to be aimed at exciting or attempt to excite hatred or disaffection towards the Government as established by law in India.”

How things have changed since then. In an absolutely peaceful atmosphere, a teenager in Bengaluru raised a particular slogan three times and this resulted in her arrest on charges of sedition. Could this ever amount to an attempt to destabilize the government? But this teenager spent four months in jail before she was granted bail.

Again, in Karnataka, as many as 85 school children were interrogated by the police concerning a play in which a child recites what the authorities found to be an objectionable dialogue. The mother of the child and the teacher who oversaw the play were charged with sedition and arrested. Please try and imagine the trauma that the school children would have gone through with policemen and policewomen questioning kids over five days in school.

And while we are discussing destabilising the government, does horse trading of MLAs (let me be clear, this is not my expression, but one used by the Supreme Court), does horse trading of a few MLAs with a view to topple a duly elected government amount to sedition?

Perhaps. In July the Special Operations Group in Rajasthan filed FIRs against six MLAs for sedition because they had indulged in horse trading with a view to topple the government. However, just before the High Court was to take up the challenge to the sedition charge, the allegations were withdrawn. A pity, because it would have been a fun case.

(Excerpts from the B.G. Verghese Memorial Lecture delivered by the retired Supreme Court Judge Madan Lokur on Monday, October 12, 2020)