SC’s relief to Vinod Dua an encouraging development, but archaic provision of sedition itself must be quashed

The quashing of the first information report (FIR) charging veteran journalist Vinod Dua with sedition among other things for criticising Prime Minister Narendra Modi and his administration by the Supreme Court on Thursday is an encouraging and significant development.

Acting on Dua's plea, the SC held that it was of "firm view" that his prosecution for sedition and other offences would be "unjust" as he was within his "permissible limits" to criticise the government.

The court relied upon the 1962 landmark decision in Kedar Nath Singh Versus State of Bihar case, which had then upheld validity of sedition provision but with riders.

"The principles culled out from the decision in Kedar Nath Singh show that a citizen has a right to criticise or comment upon the measures undertaken by the government and its functionaries, so long as he does not incite people to violence against the government established by law or with the intention of creating public disorder," the SC said.

"It is only when the words or expressions have pernicious tendency or intention of creating public disorder or disturbance of law and order that Sections 124A and 505 of the IPC must step in," the SC added.

The court thus said it must be clarified that every journalist will be entitled to protection in terms of Kedar Nath Singh case.

"Every prosecution must be in strict conformity with the scope and ambit of the Sections and completely in tune with the law laid down in Kedar Nath Singh," the bench said.

It may be recalled that the FIR was registered against Dua by Himachal Pradesh Police on May 6 last year on the basis of a complaint filed by state BJP leader Ajay Shyam accusing Dua of spreading rumours and misinformation about the communal violence in Delhi in February 2020 through his YouTube show. The complaint alleged that Dua, in his YouTube show, accused Prime Minister Modi of using “deaths and terror attacks” to get votes.

Dua had approached the Supreme Court after a team of Himachal Pradesh Police landed up at his residence on June 12 last year and ordered him to be present at the remote Kumarsain Police Station in Shimla district – at least a 20-hour drive from Delhi – the very next day at 10 am.

Curiously, for 35 days after the FIR’s registration in Himachal Pradesh, the police took no action. But as soon as Dua got some relief from the high court in a similar case registered against him in Delhi, the police in Himachal Pradesh swung into action. This was a pointer as to how the system works in the country when the ruling regime wants to deter anyone daring to question it.

The SC had then urgently convened a virtual hearing on June 14, 2020 and granted him protection from arrest till July 6. The next day, the court extended his protection till July 15.

“There is a recent trend against the media where state governments which do not find a particular telecast to be in sync with their political ideologies register FIRs against persons of the media primarily to harass them and to intimidate them so that they succumb to the line of the state or else face the music at the hands of the police,” Dua’s plea pointed out.

On Thursday, with regard to Dua's show on the nationwide lockdown in March, 2020, the court wondered, "The situation was definitely alarming and as a journalist if he showed some concern, could it be said that he committed offences as alleged." Instead, the court said, the statements were made by Dua so that prevailing situation could be addressed quickly and efficiently.

The court, however, rejected Dua's plea to lay down that no FIR would be lodged against a journalist with 10 years experience unless approved by a committee at state level, saying, "this would amount to encroachment upon the field reserved for the legislature".

Selective interpretation by courts

The SC’s judgment has given rise to a hope among some sections of civil society that the ‘tide is turning’ in the country and that a precedent has been set by the SC, in the context of several journalists and activists having been booked under the sedition law by the government of the day merely for expressing dissent or criticising its policies.

However, the fact is that courts have earlier delivered judgements and orders on the same line of reasoning as the Vinod Dua case with regard to the non-applicability of the sedition law, which was enacted by the country’s British rulers back in 1870 to quell the voice of freedom fighters.

In February this year, a Delhi court had granted bail to Bangalore-based climate activist Disha Ravi, arrested by Delhi Police for her alleged involvement in a ‘toolkit’ tweeted by Greta Thunberg related to the farmers’ protest, relying on the same Kedar Nath v State of Bihar judgement.

The court also observed, “The offence of sedition cannot be invoked to minister to the wounded vanity of the governments.”

Just last week, the Supreme Court had said in another case that there is a need to definite the limits of sedition, noting that sections of the Indian Penal Code that deal with sedition require interpretation, particularly in the context of media freedom.

The apex court’s observation came as it stayed coercive action against two Telugu-language news channels accused by the Andhra Pradesh police of sedition for airing the statement of an MP who had rebelled against the ruling YSR Congress Party in the state.

Indeed, the settled law is that criticism of the government, asking questions of the government, raising anti-India slogans, even being “anti-Indian”, isn’t anywhere close to inviting charges of sedition.

However, there are instances where even district courts have failed to acknowledge this, as was the case in the bail pleas moved by Devangana Kalita and Jamia student Safoora Zargar. In both cases, there was no direct link brought on record to link their activism with the events that unfolded during the riots in north-east Delhi earlier this year in January.

Process is the punishment

The offence of sedition, under law, is cognisable (a policeman can investigate and arrest without oversight of a magistrate) and non-bailable (you are not entitled to bail as a matter of right). So if a case is filed against you, the police has the power to arrest you. Under law, you are to be produced before a magistrate within 24 hours. The police inevitably blows the offence out of proportion, and seeks custody of the accused so that they can be investigated, and the magistrate inevitably grants such custody.

The police now have 90 days to file a charge-sheet. While the accused is entitled to apply for bail, given the magnitude of the allegations and the police’s claims that evidence is still being unearthed, often bail is denied.

If a charge-sheet is not filed within 90 days, the accused is entitled to bail by default. If it is filed, the magistrate then scrutinises whether a case is made out under law. This three-month period of incarceration would be enough to drain the accused of financial resources (cost of engaging lawyers as well as professional revenue foregone), not to mention their spirit. Carrying a maximum sentence of imprisonment for life, the charge of sedition is one of the gravest.

At best, the charge is quashed, and the accused is acquitted. Else, there is a long-drawn trial that might drag on for years. On the other hand, the police is almost never made accountable for their actions.

Nothing explains the sedition mess better than the case of student Amulya Leona, who spent four months in jail even as courts turned down her bail plea, only to be released on default bail since the police failed to file a chargesheet in the stipulated time.

Her ‘crime’: Saying ‘Pakistan Zindabad’ and ‘Hindustan Zindabad’ at an anti-Citizenship Amendment Act (CAA) rally.

Even Vinod Dua had prayed to the SC for “exemplary damages” for “harassment”, but there was no order regarding the same.

During a hearing of bail plea on health grounds of Bhima Koregaon accused Telugu poet Varavara Rao in January this year, senior counsel Indira Jaisingh asked the Bombay High Court to consider his advanced age and neurological condition. "He once wrote a letter to his wife, saying his wife passed away 15 years ago. Now he is interacting with her. This is the condition of people with dementia... What is dementia? It's not having awareness of time-space and people," she said.

When NIA counsel Sandesh Patil informed the court that there are 200 witnesses cited in the charge sheet though all of them may not be examined, Jaising said in that case, Rao would surely die in prison. “In India, the process is the punishment,” Jaisingh remarked.

SC needs to step in

Police officers cursorily reading Indian Penal Code’s Section 124A are quick to slap sedition on those whose actions and words merely incite opposition to the government. The guard rails imposed by the Supreme Court, requiring direct and immediate incitement to violence to qualify as sedition, have had no effect.

Flawed application of sedition disregarding SC strictures qualifies for invoking contempt of court, if not outrightly quashing this archaic provision. SC must also take note of sedition cases spiking year-on-year from 35 in 2016 to 70 in 2018 and 93 in 2019.

The Supreme Court must lay down clear guidelines as to what constitutes sedition and what does not. Because drunk-on-power politicians and the law enforcement agencies, working to please their political masters, will continue to ignore settled law on sedition.

It must issue stringent, legally binding guidelines to ensure the government and its agents – both within and outside the system – aren’t able to browbeat free media and dissenting voices by foisting sedition charges on them.

India’s most high-profile sedition convict was Mahatma Gandhi. In his trial, where he pleaded guilty to charges brought by the British government, Gandhi stated that, “If one has no affection for a person or system, one should be free to give the fullest expression to his disaffection, so long as he does not contemplate, promote, or incite to violence”.