With the doubts about the safety of the Kudankulam project, fears of a similar accident caused a mass protest which continues to this date, albeit more subdued. Almost 380 FIRs alleging sedition and waging war against the state were lodged against the protesters since October 2011 with Udayakumar as the first accused in many of them. Interestingly, the FIRs ended with the line ‘and another 300’ or ‘3,000 people’ along with the name of the main accused. This was done to keep it open-ended and scare people into thinking that any of them could be implicated.
The Supreme Court on 6 May 2013 paved the way for the nuclear plant to be commissioned in Kudankulam as it found that the authorities had obtained all clearances and permissions and had implemented sufficient safety and security measures. It further held that the setting up of the Kudankulam plant would have positive effects on the welfare of the people and lead to economic growth. While issuing a wide array of directions, the Supreme Court ordered that endeavours should be made to withdraw all criminal cases filed against the agitators to restore peace and normalcy at Kudankulam and nearby places. 20
However, according to Janardhanan’s report, the number of cases dropped from 380 to 240, with twenty-one still standing as on the date of the report. The damage done by the cases was severe. Young men booked for sedition got their passports ‘blacklisted’ and had to give up their plans to go abroad to seek employment. Sundari, one of those arrested, served ninety-eight days in prison before getting conditional bail from the Madras High Court. She had to sign registers at three police stations in Madurai, more than 200 km away from her residence, every day for two months. After returning to her village, she had to sign the register at the Kudankulam police station each day for six more months. 21
The most chilling statement on the sedition cases was made by an inspector general of the state police. He told Janardhanan, ‘We write on the files “Further Action Dropped”. But Kudankulam and Idinthakarai were most peculiar cases as we needed to keep a check on the villagers. Retaining these charges will help douse their anger; over 8000 people booked under charges will scare them to not initiate similar protests again.’ Despite admitting that there was nothing to be probed or charge-sheeted in all these cases, the police officer said, ‘These were all cases to scare them. When I look back after five years, I see that those 121 and 124A charges on 8000 random people did serve the purpose.’
Something similar occurred in Tamil Nadu in 2018, also in a coastal town called Thoothukudi. In a protest against the environmental issues arising from the smelting plant of Sterlite Copper, a Vedanta company, the town witnessed violence at a rally demanding the plant’s closure. Ten people were killed in police firing and many injured. The Tamil Nadu police slapped hundreds of cases against the protestors, but the most unique case was filed against a lawyer providing legal aid to the arrested protestors. S. Vanchinathan, an advocate for the ‘Thoothukudi District Anti-Sterlite People Federation’ who practises at Madurai, was arrested on 20 June and kept in jail for sixteen days. He was booked for sedition and only granted bail on the condition that he remain in Madurai town and not engage in any activity related to Sterlite. 22
The Common Cause petition was filed to prevent such cases in future, but the Supreme Court’s order simply directing the application of Kedar Nath strictly would not help people like the Kudankulam protestors, who have had to suffer the side effects of sedition cases and live with the stigma of being called anti-nationals.
Like Arundhati Roy.
The Booker Prize–winning literary giant made a statement at a seminar called ‘Azadi—the Only Way’ held in Delhi on 21 October 2010. The seminar was held with a member of the separatist Hurriyat Conference of Kashmir present on stage with Roy. Recalling her past statements to the media, she said that Kashmir had never been an integral part of India and that India needed azaadi (freedom) from Kashmir as much as Kashmir needed azaadi from India.
She clarified by stating that by ‘India’ she did not mean the Indian State but the Indian people. She said, ‘So, so many things have been done there, every time there’s an election and people come out to vote, the Indian government goes and says—“Why do you want a referendum? There was a vote and the people have voted for India.” . . . Now, sometimes it’s very difficult to know from what place one stands on as formally a citizen of India, what can one say, what is one allowed to say, because when India was fighting for independence from British colonization—every argument that people now use to problematize the problems of azaadi in Kashmir were certainly used against Indians . . . I’ve seen and my heart is filled with appreciation for the struggle that people are waging, the fight that young people are fighting and I don’t want them to be let down . . . I want to believe that this fight is a fight for justice . . . So I remember when I wrote in 2007, I said the one thing that broke my heart on the streets of Srinagar was when I heard people say “Nanga Bhooka Hindustan, 23 jaan se pyaara Pakistan”. 24 I said, “No. Because the Nanga Bhooka Hindustan is with you. And if you’re fighting for a just society then you must align yourselves with the powerless,” . . . I hope that the young people will deepen their idea of Azaadi, it is something that the State and your enemies that you’re fighting uses to divide you.’ 25
She concluded her speech by saying, ‘Think about justice and don’t pick and choose your injustices, don’t say that “I want justice but it’s okay if the next guy doesn’t have it, or the next woman doesn’t have it”. Because justice is the keystone to integrity and integrity is the keystone to real resistance.’ Her speech ruffled the feathers of both the then ruling United Progressive Alliance (UPA) government as well as the then opposition Bharatiya Janata Party (BJP), with calls made to book her for sedition. 26 However, the government subsequently decided not to do so as no case was made out against her. 27
Arundhati Roy wears the stigma with pride, an option not available to the Kudankulam protestors. In the May 2016 issue of Caravan magazine, in an essay titled ‘My Seditious Heart’, Roy acknowledged the anti-national label that she carries, writing, ‘Now it’s true that my views on these matters are at variance with those of the ruling establishment. In better days, that used to be known as a critical perspective or an alternative worldview. These days in India, it’s called sedition.’
Even someone like Arun Jaitley, the finance minister of India, could not escape sedition charges. Jaitley posted an article titled ‘NJAC Judgment—an Alternative View’ on his Facebook page in October 2015 which was critical of a Supreme Court judgment where a five-judge Constitution Bench of the court struck down the National Judicial Appointments Commission Act, 2014, and the Ninety-ninth Amendment to the Constitution as unconstitutional.
He wrote:
The judgment ignores the larger constitutional structure of India. Unquestionably, independence of the judiciary is a part of the basic structure of the Constitution. It needs to be preserved . . . The majority opinion was understandably concerned with one basic structure—independence of judiciary—but to rubbish all other basic structures by referring to them as ‘politicians’ and passing the judgment on a rationale that India’s democracy has to be saved from its elected representatives. The Indian democracy cannot be a tyranny of the unelected and if the elected are undermined, democracy itself would be in danger . . . No principle of interpretation of law anywhere in the world, gives the judicial institutions the jurisdiction to interpret a constitutional provision to mean the opposite of what the Constituent Assembly had said. This is the second fundamental error in the judgment. The court can only interpret—it cannot be the third chamber of the legislature to rewrite a law . . . I believe that the two can and must co-exist. Independence of the judiciary is an important basic structure of the Constitution. To strengthen it, one does not have to weaken Parliamentary sovereignty which is not only an essential basic structure but is the soul of our democracy. 28
A magistrate in Mahoba district in Uttar Pradesh suo moto—meaning on his own initiative—decided to registe
r a sedition case and issued summons against Jaitley, ridiculously claiming that no citizen has a right to disrespect any pillar of democracy and cannot question an order of a court. He completely ignored the legal mandate that any offence under Section 124A of the IPC can only be taken cognizance of after prior approval of the government, as required under Section 196 of the Criminal Procedure Code. The Allahabad High Court quashed the complaint and the summons against Jaitley, holding that none of the ingredients of Section 124A were met, apart from there being a procedural irregularity. It lambasted the magistrate for not applying its judicial mind and for acting irresponsibly.
The Court said, ‘The initiation of criminal prosecution has serious consequences. It relates to the life and liberty of a citizen and carries with it grave consequences. Viewed in that light it is obvious that the exercise of power by the Magistrate must be preceded by due application of mind and circumspection.’ 29
The High Court’s intervention in Jaitley’s case only highlighted the lack of judicial protection in the Tamil Nadu and Kerala cases, and the inefficacy of the Supreme Court’s direction in the Common Cause case.
In fact, the Karnataka High court recently dismissed the anticipatory bail application of the administrator of a WhatsApp group in which some group members had shared ‘Pakistan zindabad’ 30 slogans. A case for sedition was registered on the basis alleging that one person had posted a slogan stating ‘Pakistan zindabad’ on 14 August 2018. The accused approached the High Court for anticipatory bail where the state police opposed it alleging that the slogan provoked the public at large to raise communal violence against different classes and the act amounted to sedition.
The High Court while rejecting the bail application observed that, ‘It is necessary to state that the slogan may be of one line or two lines but the intention and effect when observed is grievous.’ 31
The Court clearly abdicated its responsibility in this matter, which was against the precedent set down by the Supreme Court in the Kedar Nath, Balwant Singh and Bilal Ahmad cases. It also highlights the mechanical approach the police take in such cases. It didn’t help that the accused were members of the minority community.
Like in the case of Saleem, who had come to the Chennai airport to receive a friend. He was arrested by the airport police and a FIR was registered against him simply for receiving a message on his phone which was an appeal for Muslims to gather at Delhi’s Jantar Mantar for a ‘show of strength’. He was arrested for indulging in anti-national activities even though he was just the recipient of the message, which in itself was innocuous, and by no stretch of the imagination hinted towards incitement of violence or public disorder. A magistrate, however, released him after not finding any criminality in the matter. 32
Criticizing a Supreme Court judgment on Facebook got Jaitley into trouble, for which the Allahabad High Court had to come to his rescue. Kamal Shukla, a journalist in Chhattisgarh, lampooned the Supreme Court’s judgment 33 in the case, calling for a probe into the mysterious death of B.H. Loya, a judge hearing the Sohrabuddin encounter trial, which had occurred in December 2014. He published a cartoon on his Facebook page criticizing the judgment which somehow offended a person sitting in Rajasthan. Shukla, an editor of the regional weekly Bhumakal Samachar, was arrested in April for sedition based on the complaint. He is currently out on bail with no one coming to his rescue. 34
Another journalist, this time in Manipur, was arrested for sedition on 21 November 2018 for posting a video critical of Manipur Chief Minister N. Biren Singh and Prime Minister Narendra Modi on Facebook. Kishorechandra Wangkhem had posted a video criticizing Biren Singh and calling him a ‘puppet of Modi and Hindutva’ for organizing a function in Manipur on 19 November to mark the birth anniversary of Rani Lakshmibai of Jhansi, who he claimed had no significance for Manipur. He questioned the chief minister’s sense of ‘Manipuri nationalism’ and used expletives for Modi and Singh. He dared the police to arrest him, which they duly obliged him with. However, the chief judicial magistrate threw out the charges and observed, ‘In giving the speech, the accused person transgressed beyond decent human conduct but it cannot be termed seditious . . . The government, especially its functionary like prime minister cannot be so sensitive as to take offence upon expression of opinions by its citizen, which may be given very nicely by using proper words or indecently by using some vulgar terms.’ 35
Having failed to book him for sedition, the state government detained him under the National Security Act, 1980 which enables the state to arrest someone as preventive detention for a period up to a year!
Closely following on the heels of Wangkhem’s sedition charge, the protests in Assam against the Citizenship (Amendment) Bill, 2019 resulted in sedition charges against another journalist and two other civil society members. The Bill proposes that persons belonging to minority communities, namely, Hindus, Sikhs, Buddhists, Jains, Parsis and Christians from Afghanistan, Bangladesh and Pakistan, shall not be treated as illegal migrants. The Lok Sabha passed the Bill on 8 January 2019, which provoked protests across Assam based on the fear of influx of immigrants from Bangladesh, and the naturalization of illegal immigrants already in the state.
Senior journalist Manjit Mahanta, Sahitya Akademi awardee litterateur Hiren Gohain and RTI activist Akhil Gogoi were charged with sedition for their comments on the Citizenship Bill at an event held on 7 January 2019 organized by a civil society group. Gohain was alleged to have called for an ‘independent Assam’. He contradicted the police’s story and claimed that he had only highlighted that citizenship should be on the basis of secular principles, and the demands of the Assamese people on the Citizenship Bill must be achieved by democratic means within the framework of the Constitution. He claims to have stated that a failure to do so would lead to demands for an independent Assam. 36 Gogoi and Mahanta also denied the allegations and claimed to have made statements similar to Gohain, that failure to meet Assamese demands against the Bill may lead to a situation where people might start demanding an independent Assam. 37
All three filed a petition for pre-arrest bail before the Guwahati High Court, which granted such bail to Mahanta, albeit conditional, but only granted interim pre-arrest bail to Gohain and Gogoi on 11 January. 38 At the time of writing this, the petition was still pending before the High Court with investigations ongoing.
Meanwhile, after having been passed by the Lok Sabha, the Citizenship (Amendment) Bill was not tabled in the Rajya Sabha till the last day of the Parliamentary session on 13 February despite being listed for consideration. The Bill has now lapsed and will have to be reintroduced in the Lok Sabha in the next session, if at all. 39
However, this did not stop the Manipur police from arresting a Manipuri student leader for sedition for his statements against the Bill. Thokchom Veewon was arrested from his home in Delhi in a joint operation between the Manipur and Delhi police on the evening of 15 February 2019. The Manipur police charged him with sedition for a Facebook post criticizing the Bill on 12 February in which he called the chief minister of Manipur a puppet of the central government.
The police, meanwhile, claim that Veewon was booked for sedition for his call for Manipuri independence, and not for his criticism of the chief minister. In another post he had written, ‘Indefinite curfew imposed in Manipur. Internet banned for 5 days. All cable TV network asked not to cover any speech or footage of the protest. High possibility that CAB will be passed today at the Rajya Sabha. Manipur once burned down the state assembly in 2001. Self determination is the only way forward.’ An inquiry by the Criminal Investigation Department of the crime branch of the Manipur police led to a report based on which the sedition case was filed against Veewon in an Imphal police station as FIR No. 13(2)2019 LLI-PS. A magistrate in Delhi permitted the Manipur police to take Veewon to Imphal to face further proceedings. This permission, known as a transit remand, was challenged before the Delhi High Court by his brother. The High Court not only refused to interfere with the transit remand, it went
ahead to give a finding that Veewon prima facie appeared to have committed the offence of sedition. It quickly qualified the finding by saying that it had not commented on the merits of the case. 40 The order of the High Court appears mechanical and suffers from a lack of appreciation of the law. Veewon’s family, however, decided to face proceedings in Manipur instead of challenging the High Court’s order before the Supreme Court.
The magistrate before whom Veewon was subsequently produced proved to be a bigger champion of free speech than the Delhi High Court. She granted him bail after prima facie finding that the offence of sedition did not appear to have been committed. 41 She is the same magistrate who had earlier rescued Wangkhem from sedition charges.
The need to prosecute Veewon for sedition makes little sense because now that the Bill has lapsed there is no fear of imminent violence or public disorder. The comments made by Veewon are similar to the statements made by Gohain and others in Assam which can be interpreted as a caution against disturbing status quo in the region. Would such calls by a student leader spark disaffection and hatred against the government and lead to violence and disorder? There is no need to even guess because even after his posts no such unlawful events occurred, neither is there any possibility of such acts now.
The police may have arrested Veewon to send a statement to people in the region that opposition to the government will not be tolerated. The arrest of civil society members in Assam and Manipur is a message to the people across the north-east that anyone against the actions of the government would have to face serious consequences. The law against sedition and other offences against the State is being wielded by the police as a baton to crush dissent and put the fear of the law in the minds of people. In Assam alone, 251 sedition cases have been filed since 26 May 2016, which was the day the current BJP government came to power in the state. 42
The Great Repression Page 19