The Great Repression

by Chitranshul Sinha

  Despite the Supreme Court clarifying the law of sedition on multiple occasions now, law enforcement authorities are yet to understand what the law actually means. Or even worse, as demonstrated by past actions, they understand what it means but still initiate prosecutions and leave the rest up to the courts. The police in India have rarely been held accountable for such detentions and arrests, which has further emboldened them to flout Supreme Court guidelines and misapply the law. In a fractured society, more than the law against sociopolitical offences, it is the law enforcement authorities which are a bigger threat against free speech and political freedoms.

  A senior police officer in Jharkhand lamented the lack of understanding of the sedition law among lower-rung police officers in the state. The police in Jharkhand are national leaders in registering sedition cases, mostly against alleged Maoist insurgents or sympathizers, but all these cases fell flat at the first hint of legal scrutiny. In many cases, charge sheets were filed only to be rejected as no prior approval under Section 196 of the Criminal Procedure Code had been taken. This was down to the fact that the police were not even aware of this legal requirement! 43

  Recently, as admitted by the state government, about 250 people were charged with sedition in the Khunti district of Jharkhand in twenty-three separate cases. Tribal leaders and activists claimed that the actual number is as high as 1500 people. The cases have arisen from the Pathalgarhi movement in the district, which refers to a traditional tribal way to mark territory and jurisdiction by the erection of stone slabs. In this instance, stone slabs with the relevant provisions of law were erected in the district, claiming that no government activity could be undertaken in the area without permission from the gram sabha or village assembly. The government has interpreted this as a move to hinder developmental work. 44

  The villagers do have a point. The Supreme Court, by way of the Samatha judgment, declared that Scheduled Tribe lands, as specified in accordance with Schedule V of the Constitution, cannot be transferred to non-tribal persons or corporations, and recognized the rights of indigenous persons over such forests and land. Additionally, the Panchayats (Extension to Scheduled Areas) Act, 1996 establishes their rights over exploitation of resources and self-governance in Scheduled Tribe areas. Activists claim that the Jharkhand government has been attempting to bypass provisions of law, like taking gram sabha approval for projects in the area, resulting in the Pathalgarhi movement in Khunti. 45

  Sedition cases have also been registered against tribal rights activists involved with the movement who consequently filed a petition before the Jharkhand High Court in September 2018 seeking quashing of the charges. The petition is still pending adjudication. 46

  The most interesting recent sedition case also originates from Jharkhand. This case has its origin in the creation of the autonomous South-West Frontier Province of Bengal, which included the Kolhan region which is now in Jharkhand. This region was technically not a part of British India. The British followed a policy of non-regulation of the indigenous tribes there, and the tribes had their own societal and political structures. The region was administered by a British resident named Wilkinson, who was more of a peacekeeper and go-between with the British administration. 47

  In 1982–83, a group of leaders from the region, under the banner of the Kolhan Raksha Sangh, travelled to London demanding a separate independent state called ‘Kolhan Estate Government’, as it had purportedly been a region separate from India. They even demanded the right to interact with the Commonwealth on their own. They were duly booked for sedition. The movement again gained some steam a couple of years back with a group of tribals demanding independence citing the British-era arrangement. Their leader, an octogenarian ex-additional district magistrate of undivided Bihar, 48 Ramo Birua, had issued a call to hoist the flag for a separate Kolhan Estate Government and had begun issuing certificates for caste, income and age under the letterhead of ‘Kolhan Estate Government’. He was booked for sedition, after which he went underground. 49

  Birua was finally arrested in June 2018, having evaded the law by hiding in a jungle, and was later sheltered by his children. He was eighty-four years old when he was arrested.

  He died of natural causes twenty days later.

  11

  The Road Ahead

  As mentioned earlier, the National Crime Records Bureau (NCRB) started maintaining a separate record of sedition cases in India from the year 2014. A total forty-seven cases of sedition under Section 124A of the IPC were registered in the year 2014 for which fifty-eight people were arrested. In 2015, it decreased to thirty cases with seventy-three people arrested, but increased to thirty-five FIRs in 2016 with forty-eight arrests. By the end of 2016, sixty-one sedition cases were still pending investigation. No official NCRB data is available post-2016 as the NCRB has not released any reports after that.

  At the end of 2016, only sixteen cases reached the charge-sheet stage. As per the report, thirty-four trials for sedition were conducted in 2016, out of which only three cases were concluded, resulting in a single conviction and two acquittals. This report has also been presented in Parliament by the minister of state for home affairs on 15 March 2016. The table accompanying the written answer submitted by the minister notes the only conviction to be in Jharkhand. However, media reports claim that there have been two convictions for sedition since 2014. One in Jharkhand in 2014 and one in Andhra Pradesh in 2016. 1

  I tried to test the data, but despite trawling through court records in the relevant districts and High Courts in Jharkhand and Andhra Pradesh, one could not find a record of even a single conviction in either state. Usually, such convictions find their way to the press, but even local or national newspapers did not contain any reports about sedition convictions during the relevant time period. This raises doubts about the NCRB data for 2016, which records one conviction, as well as press reports which claim that two convictions took place from 2014 to 2016.

  So, I dug deeper. The basis of most press reports claiming two convictions seems to be data from the Home Ministry, which notes two convictions. This is in variance with the official NCRB data and the table submitted in Parliament by the ministry. I made inquiries through local officials in Jharkhand and Andhra Pradesh and was reliably told that there is no record of any conviction under Section 124A in either state.

  Something, somewhere, broke in the recording and reporting process, and it seems to be down to a clerical error, maybe, that the NCRB and the ministry got it wrong. Therefore, it appears that there has not been even a single conviction under Section 124A of the IPC in the three years since 2014, for which records are available. At the time of writing this, the NCRB had not released the data for 2017 and 2018.

  The Law Commission of India undertook the task of revising the Indian Penal Code in 1968 and came up with a report in 1971. 2 The Commission was of the view that the language of Section 124A was defective as ‘the pernicious tendency or intention’ underlying seditious words or utterances has not been expressly related to the interest of the security or integrity of India or of public order as provided under Article 19(2) of the Constitution. The commission suggested that this could be rectified by specifically introducing the aspect of mens rea, meaning criminal intention, in Section 124A. In other words, it wanted the provision to be very clear that only speeches or writings delivered with the specific intent and knowledge that they would endanger the integrity or security of India or any state or disturb public order would be considered seditious.

  On the other hand, it was also in favour of expanding the scope of the provision to penalize disaffection against the Constitution, the legislatures and the judiciary in addition to the executive. Fortunately, the government of the day did not accept the recommendations made in this regard. Unfortunately, it also did not accept the recommendation to specifically include the aspect of mens rea in Section 124A.

  Interestingly, the birthplace of the common law of sedition has already abolished the law. Section 73 of t
he Coroners and Justice Act, 2009 categorically abolished the common law offences of sedition and seditious libel in England, Wales and Northern Ireland. In doing so, the legislature recognized that the law of sedition had a chilling effect on free speech and political discourse and debate. Speaking on the abolition, Justice Minister Claire Ward said, ‘Sedition and seditious and defamatory libel are arcane offences—from a bygone era when freedom of expression wasn’t seen as the right it is today. Freedom of speech is now seen as the touchstone of democracy, and the ability of individuals to criticise the state is crucial to maintaining freedom. The existence of these obsolete offences in this country had been used by other countries as justification for the retention of similar laws which have been actively used to suppress political dissent and restrict press freedom. Abolishing these offences will allow the UK to take a lead in challenging similar laws in other countries, where they are used to suppress free speech.’ 3

  This statement becomes more significant in the Indian context. The offence as described under Section 124A of the IPC has been carried forward from colonial days and is very broadly worded. It reads as a preventive provision which should ideally be used only as an emergency measure. A more specific law was enacted in 1967 by Parliament to impose reasonable restrictions on freedom of speech in the interests of sovereignty and integrity of India pursuant to the sixteenth amendment of the Constitution in 1963. The Unlawful Activities (Prevention) Act, 1967 (UAPA) received the assent of the president on 30 December 1967.

  UAPA defines ‘unlawful activity’ as any action undertaken by an individual or association through words, either written or spoken, or through signs or visible representation that (a) intends, or supports any claim, to cession or secession of any territory which forms a part of India, or incites other people to do so; (b) intends to or disclaims, questions, disrupts the territorial integrity and sovereignty of India; and (c) causes or intends to cause disaffection against India. The definition clearly covers, and even expands, the provision under Section 124A. Section 13 of the UAPA provides the punishment for unlawful activities and states that whoever commits, advocates, abets, advises or incites the commission of any unlawful activity shall be punished with imprisonment for up to seven years, or a fine, or both.

  The continued existence of Section 124A, despite the presence of the UAPA governing this special category of offences against the State, makes little sense under the circumstances. There are problems with the UAPA as well, especially with the width of language employed to define unlawful activity, which penalizes even passive support or advocacy of a political issue which may be considered to be an unlawful activity.

  The Rowlatt Act, despite all its unpopularity, did provide that measures against seditious activities can only be invoked upon a declaration of emergency by the government of the day. The UAPA was enacted during a period when India had emerged from major wars with China and Pakistan, and the government anticipated more such conflicts due to the geopolitical environment at the time. Section 124A was enacted at the time of Wahhabi extremism and was subsequently used to suppress freedom movements. Today, the nation is not under threat of war or any major conflict. God forbid, if such a situation does arise, then the government can always declare it expedient to apply Section 124A or the UAPA to deal with emergent circumstances. Even to tackle internal security problems like the Maoist insurgency in the states of Jharkhand, Chhattisgarh, Odisha, Andhra Pradesh, etc., or the separatist insurgency in the north-east and Kashmir, the law against sedition can be applied only to such notified regions which are affected by the problem. Any such notification must be based on sound evidence and reasons for the application of Section 124A or UAPA.

  However, it will serve democracy well to repeal Section 124A of the IPC and instead rely on UAPA only upon a declaration of emergency. India is not a brittle democracy that needs protection from undesirable speech or expression in times of peace.

  For these very reasons, D. Raja, a member of the Rajya Sabha in 2011, introduced a private member’s bill to repeal Section 124A. It was called the Indian Penal Code (Amendment) Bill, 2011 which proposed an unconditional abolition of sedition law due to the presence of alternative legislation. In support of his Bill, Raja stated:

  In view of the adverse effect of the section on individuals and organizations that work for unity, integrity, and equitable development of India and its citizens, it is felt necessary to delete section 124A from the Indian Penal Code, 1860. In the State of Chhattisgarh, many people, human rights activists and social activists, who have been working amongst the tribal people for their upliftment, were targeted, booked and imprisoned under this clause. My question is that why should it happen? In several other States also this clause has been continuously misused to suppress genuine people’s movement and the individuals who voice the concerns of our people. Even in the States like Haryana and Punjab, people who have been fighting for the rights of agricultural workers, for the rights of dalits, they have been targeted. Even the people who are critical of nuclear plants, the nuclear policy they are targeted. There should be demarcation. I do not agree the way the neo-liberal economic policies are pursued with such aggressiveness. I have the right to question the government. You cannot use section 124A of the Indian Penal Code against your own citizens. As a sovereign nation we should really think whether we should keep this section. It is the duty of the Government to safeguard the interests of tribal people. What is the necessity of section 124A in the Indian Penal Code? When somebody questions the Nuclear Policy or when somebody opposes nuclear plants, the State machinery comes down so heavily. We should amend the Indian Penal Code. This section is being misused mostly against those activists and organizations who are basically working among the poorest of our people. Do you believe that there is a need to have this section even after six decades of Independence? Have you ever thought of using this section against tax evaders? This section is used precisely against those who fight for the welfare of the people. I want to emphasise the need for deletion of this clause. It is a draconian clause. It has to go. It is the question of defending the Fundamental Rights of the Indian citizens. If you continue to have this clause, the Government fails to uphold the Constitutional provisions. This Clause is used as a weapon against people who fight against the Government’s policies. 4

  The government justified the continued existence of Section 124A by relying on the Law Commission’s 42nd report, which recommended the strengthening of Section 124A. The minister of state for home affairs replied to D. Raja by stating:

  During the last 61 years of Republic of India, no Government deleted this section because this section certainly strengthens the authority of the State. It is essential to have a strong State to safeguard the democratic set up. Section 124A of IPC is absolutely compatible with democracy. The number of cases in respect of section 124A could be even less and very negligible. We cannot delete the section 124 A of the IPC on the mere apprehension that there are chances of its misuse. There is no harm in reviewing the provisions of this section to make it more in tune with the present day need of the civil society and freedom of speech and expression. The Government recognises the imperative need to reform the criminal justice system of the country by introducing a comprehensive legislation in Parliament. In view of the recommendations of the Department-related Parliamentary Standing Committee on Home Affairs, the Ministry of Home Affairs requested the Ministry of law and Justice to request the Law Commission of India to examine and give a comprehensive report covering all aspects of criminal law so that comprehensive amendments can be made in various laws. The Report of the Law Commission of India in this regard is awaited. Considering all these facts, I request my hon. Friend, Mr. D. Raja, to kindly withdraw this Bill.

  Assured by the government’s reply, D. Raja withdrew the private member’s bill. 5

  Another attempt to amend the provision was made through a separate private member’s bill introduced by Shashi Tharoor in the Lok Sabha called the Indian Pena
l Code (Amendment) Bill, 2015. Through this Bill, Tharoor lamented the inefficacy of the Supreme Court’s judgment in Kedar Nath as lower judiciary and law enforcement agencies continued to misapply the law against sedition. The trigger for the Bill was the imposition of sedition charges against the Kudankulam protestors. He called for amendment of the provision to clearly lay down what the Supreme Court read into the provision in the judgment. However, even this attempt did not bear fruit.

  On 30 August 2018, the 21st Law Commission of India published a consultation paper seeking public views and recommendations regarding Section 124A of the IPC. The Commission was of the view that in a democratic society every irresponsible exercise of the right to free speech and expression cannot be termed seditious, and if the country is not open to positive criticism, there lies little difference between the pre- and post-Independence eras. It felt that while it is essential to protect national integrity, sedition law should not be misused as a tool to curb free speech because dissent and criticism are essential ingredients of a vibrant democracy.

  Therefore, in order to consider revising Section 124A, the commission framed the following propositions, as extracted from the consultation paper:

  (i) The United Kingdom abolished sedition laws ten years back citing that the country did not want to be quoted as an example of using such draconian laws. Given the fact that the section itself was introduced by the British to use as a tool to oppress the Indians, how far it is justified to retain Section 124A in the Penal Code?

  (ii) Should sedition be not redefined in a country like India—the largest democracy of the world—considering that right to free speech and expression is an essential ingredient of democracy ensured as a Fundamental Right by our Constitution?