The Great Repression
Page 18
The Supreme Court on the other hand granted him bail and suspended his sentence in April 2011, while not passing a detailed order so as to not prejudice the appeal pending before the High Court. 28 While deciding his petition, the court observed that no case of sedition appeared to have been made out against Dr Sen. It reportedly asked how sedition could be established merely on the basis of Dr Sen meeting Sanyal thirty-three times and his possession of Maoist literature. 29
Dr Sen’s appeal against his conviction is still pending before the Chhattisgarh High Court.
10
Stories of Sedition
Asia Cup 2014. India vs Pakistan on 2 March at the Sher-e-Bangla Stadium in Mirpur, Bangladesh. A thriller of a match.
No other cricketer in his generation blends genius so liberally with lunacy as Shahid Afridi, and though there were glimpses of both in Mirpur, Afridi sent Pakistan’s fans into raptures and endeared himself to them again, as only he can, with two mighty blows during an incredibly tense final over. The India–Pakistan clash was given a finish deserving of its profile, as Pakistan ran India’s 245 down with two balls and one wicket remaining. 1
Pakistan won a virtual semi-final with one wicket remaining in the last over of the match. The result would surely have caused many television sets to be smashed across India. It also resulted in sixty-seven Kashmiri students being arrested for sedition in Meerut, Uttar Pradesh.
Indians take their cricket very seriously. So seriously that some of them felt that Kashmiri students cheering for Pakistan and celebrating its win over India would cause incitement of public disorder and violence against the State!
The New York Times summed up the situation perfectly, ‘Cricket is a national obsession in India. Some Kashmiris root against the Indian team because of resentment from decades of national policies there, including routine arrests of pro-independence figures and thousands of disappearances.’ 2 These young men were students of the Swami Vivekanand Subharati University in Meerut. The vice chancellor of the university lodged a complaint against these students, following which the Uttar Pradesh Police arrested them for sedition under Section 124A and—its old friend and companion—incitement of hatred between communities under Section 153A of the IPC. The arrests made national headlines and provoked Omar Abdullah, then chief minister of Jammu and Kashmir, to call for quashing the charges. Even the Indian Home Ministry called for a report on the arrests. In the face of this unwanted limelight, four days later the state government dropped the sedition charges against the students. However, the other charges remained, and the students were thrown out of their university-provided accommodation. 3
If you found this to be indiscriminate and vexatious, wait till I tell you about a cartoonist who got arrested for sedition.
Aseem Trivedi was arrested in September 2012 after a First Information Report (FIR) under Section 124A of the IPC was lodged against him for spreading hatred and disrespect against the government through his cartoons published on a website called ‘India against Corruption’. The offending cartoons had also been displayed at the MMRDA ground in Mumbai as a nationwide anti-corruption campaign launched by Anna Hazare, a social activist. Trivedi’s cartoons were alleged to have defamed Parliament, the Constitution of India and the national emblem. He was granted bail and released from Arthur Road Jail, Mumbai, after an individual filed a public interest litigation before the Bombay High Court. 4
Subsequently, based on an opinion of the advocate general of Maharashtra, sedition charges under Section 124A against Trivedi were dropped. The High Court, however, did not let the matter go. First of all, it made clear that it really did not like the cartoons as they lacked ‘wit or humour’ and were full of ‘anger and disgust against corruption prevailing in the political system’. However, it emphasized that the State could not have encroached upon Trivedi’s freedom to express indignation against corruption in the political system in strong terms or visual representations, especially when there was absolutely no allegation of incitement to violence, or the tendency or the intention to create public disorder.
The High Court thereafter directed the state government to issue guidelines to all police personnel in Maharashtra to be followed in cases of sedition under Section 124A, such as:
(i) The words, signs or representations must bring the Government (Central or State) into hatred or contempt or must cause or attempt to cause disaffection, enmity or disloyalty to the Government and the words/signs/ representation must also be an incitement to violence or must be intended or tend to create public disorder or a reasonable apprehension of public disorder;
(ii) Words, signs or representations against politicians or public servants by themselves do not fall in this category unless the words/signs/representations show them as representative of the Government;
(iii) Comments expressing disapproval or criticism of the Government with a view to obtaining a change of government by lawful means without any of the above are not seditious under Section 124A;
(iv) Obscenity or vulgarity by itself should not be taken into account as a factor or consideration for deciding whether a case falls within the purview of Section 124A of IPC, for they are covered under other sections of law;
(v) A legal opinion in writing which gives reasons addressing the aforesaid must be obtained from Law Officer of the District followed within two weeks by a legal opinion in writing from Public Prosecutor of the State. 5
The High Court basically read back the provision for the benefit of the state police and also imposed a requirement of obtaining reasons and legal opinion prior to the initiation of a prosecution for sedition. The judgment, though, applies to the police in the state of Maharashtra only, and is not canon for any other state police.
Now, while the law says that before any court can take cognizance of any offence under Section 124A of the IPC, there should be prior sanction to prosecute under Section 196 of the Criminal Procedure Code. In simple words, charges cannot be framed against persons accused of sedition unless the government approves and sanctions the charge sheet filed by the prosecution. So, under law, there is only a requirement to obtain sanction for trial, but no requirement to obtain sanction before arrest for sedition.
The Bombay High Court in Trivedi’s case made an attempt to impose some mechanism for arrest for sedition in Maharashtra. However, nationally, there is absolutely no uniformity in tackling cases of sedition.
Common Cause, an NGO, along with S.P. Udayakumar brought the situation to the notice of the Supreme Court by way of a public interest writ petition 6 in 2016. Udayakumar was in fact an aggrieved petitioner who was facing several sedition cases for protesting against the Kudankulam nuclear power plant in Tamil Nadu. More on that later.
The petition drew attention to the 1979 ratification of the International Covenant on Civil and Political Rights, which sets forth standards for safeguarding freedom of speech internationally. Considering the misuse of Section 124A beyond the scope set down in Kedar Nath, and in light of convention obligations, the petition sought to protect bona fide activists from misuse of sedition law to suppress civil rights campaigns. The loophole regarding no requirement of sanction prior to arrest was being exploited by the police and administration to muzzle dissenting voices. The punishment lay in the procedure for such accused persons.
Common Cause and Udayakumar therefore prayed for directions from the Supreme Court making it mandatory to obtain a reasoned order from the concerned director general of police in the state or the commissioner of police, as the case may be, certifying that any alleged seditious act either led to violence or had the tendency to incite violence before an FIR being registered or the accused being arrested. Incidentally, the petition was argued by Prashant Bhushan, a leading public interest advocate who had been assaulted in the past for comments on the political situation in Kashmir, and who had a complaint registered against him by an individual claiming that his comments advocating a referendum in Kashmir were seditious.
The Supreme Cou
rt, however, missed an opportunity to emulate the Bombay High Court. While deciding the petition on 9 September 2016, it simply passed an order that authorities while dealing with cases under Section 124A shall be guided by the principles laid down in Kedar Nath. It refused to deal with the wider issues raised in the petition. The flaw with the order is that while Kedar Nath is definitely law of the land, it does not provide for pre-arrest requirements and compliances. Any person arrested for sedition will have to obtain bail, attend proceedings, make themselves present for investigations, etc., before the charge sheet is filed or the case is closed.
Take the example of the Jawaharlal Nehru University (JNU) sedition case.
On 9 February 2016, a poetry reading event called ‘The country without a post office’ was organized within the JNU campus in Delhi by the JNU Students Union (JNUSU). The poster of the event had ‘The country without a post office. The struggle of people against power is struggle of memory against forgetting’ printed on the front, and ‘Against the Brahmanical collective conscience against the judicial killing of Afzal Guru & Maqbool Bhat, in solidarity with the struggle of Kashmiri people for their democratic right to self-determination, we invite you for a cultural evening of protests with poets, artists, singers, writers, students, intellectuals, cultural activists. 9 th February, Thursday 5 PM, Sabarmati Dhaba. There will also be an art exhibition and a photo exhibition portraying the history of the occupation of Kashmir and in solidarity with the valiant people of Kashmir. Anirban, Anjali, Anwesha, Aswathi, Bhavna, Komal, Rayaz, Rubina, Umar, Sama’ printed on the back. 7
This poster was forwarded by the joint secretary of JNUSU, who was a member of the right-wing Akhil Bharatiya Vidyarthi Parishad (ABVP), to the security officer of JNU who in turn informed the police half an hour before the event could take place on 9 February. The complaint anticipated ‘anti-national’ activities and ‘anti-constitutional’ slogans. When a police party reached JNU, it encountered a group of students led by Kanhaiya Kumar, the president of JNUSU, who was a member of the left-wing All India Students Federation (AISF), and Umar Khalid. Another group of students led by Saurabh Sharma, the aforementioned joint secretary of JNUSU, were moving towards the first group with the intention to oppose them. Both groups were kept separated from each other by the police and campus security till the time they dispersed at 8:30 p.m. after constant slogan-shouting at each other.
The next day, Zee News, a leading national news television channel, broadcast purported video footage of the protests with some students allegedly shouting anti-India and pro-Pakistan slogans. The FIR records that a faction of students led by Umar Khalid were allegedly shouting slogans like ‘We won’t tolerate Afzal’s execution . . . We are with the Kashmiri youth who are struggling for freedom . . . abolish death penalty . . . freedom is our right . . . we will fight for our freedom . . . Pakistan zindabad’. The FIR alleging sedition was registered under Section 124A of the IPC based on this video.
Kanhaiya Kumar, Umar Khalid and Anirban Bhattacharya were arrested soon thereafter on the charge of sedition. Kanhaiya Kumar was brutally assaulted by lawyers at Patiala House Court 8 when he was being produced before a magistrate by the police. 9
Justice Pratibha Rani of the Delhi High Court granted him interim bail on 2 March 2016 but not before pontificating on curing anti-nationalism. The judgment said:
The reason behind anti-national views in the mind of students who raised slogans on the death anniversary of Afzal Guru, who was convicted for attack on our Parliament, which led to this situation have not only to be found by them but remedial steps are also required to be taken in this regard by those managing the affairs of the JNU so that there is no recurrence of such incident. The investigation in this case is at nascent stage. The thoughts reflected in the slogans raised by some of the students of JNU who organized and participated in that programme cannot be claimed to be protected as fundamental right to freedom of speech and expression. I consider this as a kind of infection from which such students are suffering which needs to be controlled/cured before it becomes an epidemic. Whenever some infection is spread in a limb, effort is made to cure the same by giving antibiotics orally and if that does not work, by following second line of treatment. Sometimes it may require surgical intervention also. However, if the infection results in infecting the limb to the extent that it becomes gangrene, amputation is the only treatment. During the period spent by the petitioner in judicial custody, he might have introspected about the events that had taken place. To enable him to remain in the main stream, at present I am inclined to provide conservative method of treatment. 10
The court released the petitioner on interim bail for a period of six months upon the condition that he would not participate in any activity which may be termed ‘anti-national’. Such a condition was imposed even though nowhere in the law of the land is the term ‘anti-national’ or anti-nationalism defined. The bail order, though a positive outcome for Kanhaiya Kumar, went beyond what the court was called upon to adjudicate on and, dare I say, indulged in attacking a straw man.
For example, it observed that people were enjoying freedom of expression only because the nation’s borders are guarded by Indian armed and paramilitary forces, especially in harsh terrain like the Siachen Glacier or the Rann of Kutch. It concluded that such slogans have an effect of threatening national integrity and may have demoralizing effects on the family of those slain soldiers ‘who returned home in coffin draped in tricolor’. 11 If that is accepted to be logical, then even any legitimate criticism of the government or the armed forces would have the same effect.
Though the Court eventually clarified that its observations would not have any bearing on the merits of the case during trial, it is very difficult to ignore what it observed, especially for a trial court which is subordinate to the High Court in its jurisdiction.
As the High Court granted interim bail only for six months, which would have expired in September 2016, the three accused moved the magistrate’s court for regular bail which was granted to them on 26 August. No charge sheet was, however, filed by the police for the next two-and-a-half years till 14 January 2019. 12 However, there was a twist in the tale as the magistrate on 19 January refused to accept the charge sheet which had been filed without prior approval from the state government. 13 At the time of writing this, the charge sheet had not been approved by the government.
We can only imagine what Justice Pratibha Rani would have said about the twenty-five-year-old M. Salman from Kerala who was booked for sedition for not standing up for the national anthem. He even posted derogatory comments against the national flag on his Facebook page. He was arrested in August 2014 and denied bail by the magistrate in Thiruvananthapuram. He filed a bail application before the Kerala High Court which granted him bail without expressing its views on whether his actions amounted to sedition or not. However, the High Court imposed onerous conditions on Salman by demanding two sureties to furnish bail for him for Rs 1 lakh each. He was also directed to appear before the investigating officer on all Mondays and Fridays between 10:00 a.m. and 11:00 a.m. until the filing of the charge sheet. As the icing on the cake, he was made to surrender his passport and thus barred from travelling abroad. 14
Despite going through this ordeal, Salman, who identifies himself as an anarchist, said, ‘I never stand up when the National Anthem is sung and have no plans to do it in future too, because I think we should do what we believe in.’ 15 You may not like what he did, or his world view, but it is settled law that such an act cannot be considered sedition. There was no incitement of, or tendency to cause, violence, just like in the case of Balwant Singh. Despite such a clear precedent to follow, both the magistrate as well as the High Court failed in their duty to take corrective measures.
Section 124A has been a special weapon of choice for the administration in Kerala’s neighbouring state, Tamil Nadu. In 2015, a singer by the name of Sivadas, also known as Kovan, was arrested for sedition for a song criticizing the chief
minister Jayalalitha for the state government’s support of for-profit liquor stores. He was also alleged to be a member of a Naxal organization. He was sent to police custody by a magistrate, against which he appealed before the Madras High Court. The High Court set aside the order of the magistrate on 7 November 2015 after finding no evidence of him being a member of any Naxal group. The state of Tamil Nadu filed an appeal against the High Court order, which was summarily dismissed by the Supreme Court on 30 November. 16 He is still facing sedition charges.
This action may be considered mild in comparison to what the Tamil Nadu government did about eight years back. It turned a coastal fishing village in Tamil Nadu into a village of sedition.
As Arun Janardhanan, a journalist with the Indian Express, calls it, the Idinthakarai village is ground zero on India’s sedition map. 17 He reports that 8956 people from Idinthakarai and Kudankulam villages have been slapped with cases of sedition since 2011—the highest in India—because of their sustained protests against the commissioning of the coastal Kudankulam nuclear power plant, which was eventually commissioned in August 2016. Udayakumar, the second petitioner in the Common Cause petition, 18 is the de facto leader of the protests and the founder of the People’s Movement against Nuclear Energy (PMANE), which was at the forefront of the protests.
The protests were a direct result of the Fukushima Daiichi nuclear plant accident which happened in Japan in March 2011. Following a major earthquake, a 15 metre tsunami disabled the power supply and cooling of three Fukushima Daiichi reactors, causing a nuclear accident which caused all three cores to melt in the first three days. Over 1,00,000 people were evacuated from their homes but according to official figures there have been well over 1000 deaths from maintaining the evacuation. 19