Public servants also guilty of sedition

Can people behind hate speeches, death threats, threats of genocide, physical harm or rape, lynchings and misusing the law be accused of spreading disaffection against the people, who are sovereign?

Representative Image (Photo Courtesy: The Leaflet)
Representative Image (Photo Courtesy: The Leaflet)

Sarosh Bana

The Supreme Court’s examination of the case challenging the ‘sedition law’, makes it opportune to decipher this colonial statute that predates India’s Constitution, which, in its Preamble, defines the country as a “sovereign socialist secular democratic republic” that secures for its citizens ‘justice’, ‘liberty’ and ‘equality’.

Pertinently, before it sought time to review the law, the government had clarified its intent when it submitted a “draft guideline” before the court specifying that “an FIR involving Section 124A will be registered only if an officer not below the rank of superintendent of police is satisfied and records his satisfaction in writing that the offence alleged involves Section 124A as analysed by the SC in its 2021 judgment in Vinod Dua case”.

Under the circumstances, the very definition of the law compels its appraisal.

Section 124A terms ‘sedition’ as: “Whoever by words, either spoken or written, or by signs, or by visible representation, or otherwise, brings or attempts to bring into hatred or contempt, or excites or attempts to excite disaffection towards the Government established by law shall be punished with imprisonment for life, to which fine may be added…”

The qualification, “towards the Government established by law”, renders the Section wholly one-sided by implicitly excluding the government from its scope and assigning culpability exclusively to members of the public.

This, of course, was the purpose of the British colonialists who framed this stringent legislation to crush the freedom struggle and throttle dissent, invoking it against a galaxy of freedom-fighters from Mahatma Gandhi and Jawaharlal Nehru to Bal Gangadhar Tilak and Bhagat Singh.

Without the phrase “towards the Government established by law”, Section 124A could well have been applicable also against the government itself, or its functionaries and elected representatives, in the event of the government turning against its own people. Its continuation in present times can be adroitly leveraged by a failed government or an authoritarian dispensation in its anxiety to squash, and inhibit, dissent, subjugate opponents, sanitise media coverage, and restrain civil rights.

The law’s subjectivity raises the question whether Section 124A has legitimacy in a democracy, where the public supersedes the government, as it is the citizens that hold political power by electing leaders to represent their rights and interests in governance.

However, as it stands, Section 124A excludes, indeed liberates, government representatives from its purview, no matter what their excesses against the citizens. This is a grave oversight for a functional democracy, as it makes for a biased law that, in turn, can facilitate miscarriage of justice. Ironically, the Section’s scope allows it to be applied to those who apply it wrongly.

That the sedition law is often wrongly or selectively applied is evinced from the National Crime Records Bureau’s recording of just 12 convictions from seven of the 399 sedition cases filed across the country between 2014, when it started compiling data on sedition, and 2020.

Conviction rate has fluctuated between 3 and 33 per cent over these years, while the pendency of such cases in court reached a high of 95 per cent in 2020.

While quashing the sedition case in 2021 against the late senior journalist Vinod Dua that was referred to by the government in the on-going sedition hearings, the apex court had counselled the Centre that the time was long past when mere criticism of the government was sufficient to constitute sedition. The court had held that the right to express honest and reasonable criticism was a source of strength to a community rather than a weakness.

The highest court’s caution was disregarded, as journalists continued to bear the brunt. For instance, journalist Anirban Roy Choudhury was charged under Section 124A and other sections of the IPC by the SilcharSadar police in Assam for an article in a local news website that questioned the role of local socio-cultural organisations in upholding the Assam Official Language (Amendment) Act of 1961.

Among the many earlier instances was the May 2020 arrest on sedition charges of Gujarati Face of Nation news website editor Dhaval Patel for publishing a report that raised the possibility of then Gujarat Chief Minister Vijay Rupani’s replacement for mishandling the Covid-19 response. The ruling Bharatiya Janata Party (BJP) at the state and at the Centre did, however, replace Rupani four months later.

In March 2020, Uttar Pradesh arrested district court lawyer in Kanpur, Abdul Hannan, on sedition charges for retweeting a video of Chief Minister Yogi Adityanath’s speech and calling him a “terrorist”. And among the many arrested under Section 124A for protesting or making speeches against the Citizenship (Amendment) Act was Jawaharlal Nehru University (JNU) PhD student Sharjeel Imam, who has cases filed against him for sedition in five different states.

If cases of sedition for writing, speaking out or protesting against the government or its functionaries are upheld by the courts on interpretation that the accused have caused, or attempted to cause, hatred, contempt or disaffection against the government, then those charged would face imprisonment for life, apart from being fined.

What if instead of repeal, Section 124A were to be made universally applicable, would it be applied against those within the ruling dispensation and its adherents behind hate speeches, death threats, threats of genocide, physical harm or rape, lynchings, public humiliation, draconian reprisals (bulldozing houses and shops of those suspected of public protests), and measures and policies that impoverish, degrade and polarise society, and impinge on national, public and communal security and harmony?

After all, it would be a questionable law that vests all culpability on citizens while freeing their rulers of accountability. Besides, it now prevails in a democracy in contrast to the colonial rule where it was engendered.

Would police attacks against, and firing on, protesters, confiscation and auction of properties and assets as reparations, slogans of “deshkegaddaron ko, golimarosaalo ko” (gun down the miserable traitors), “ye log aapkegharonmeinghusenge, aapkibetiyun ko uthainge aur unko rape karenge” (these people will barge into your homes, abduct your daughters and rape them), “those creating violence can be identified by their clothes”, “revenge” against agitators, and oaths to harm and massacre Muslims if necessary to make “a Hindu rashtra” (Hindu-only nation) fulfil the definition of Section 124A if its application were to be made uniform by dropping the phrase ‘ disaffection towards the Government established by law…”

Universalising the sedition law will undoubtedly widen the scope of judicial scrutiny as it extends the burden of guilt from the public to the government.

(Sarosh Bana is a senior journalist and a political commentator)

(This was first published in National Herald on Sunday)

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