New Delhi: Three Kashmiri students in Agra who allegedly cheered for Pakistan’s win against India in the recent T20 World Cup match continue to be in jail on sedition accusations made on 28 October, after UP Chief Minister Yogi Adityanath declared that those celebrating Pakistan’s victory would be charged with deshdroh (sedition).
The arrest and remand in judicial custody took place while the Supreme Court of India is hearing multiple petitions challenging the constitutionality of section 124A of the Indian Penal Code, 1860 (IPC), India’s law against sedition.
Section 124A deals with words, signs or visual representation that brings or attempts to bring “into hatred or contempt or excites disaffection against the government” and can be punished by imprisonment for life with a fine or imprisonment that may extend to three years with a fine.
Alongside the petitions seeking that section 124A be struck down on grounds of unconstitutionality, a recent argument that has gained traction calls for taming or regulating the use of the sedition law. On 15 July, 2021, Attorney General KK Venugopal, for example, argued that the law should be retained with "guidelines".
This view suggests that a much stricter interpretation of what constitutes an offence under section 124A will resolve the problem of free speech being suppressed through use of the sedition law.
Arguments for such guidelines to regulate the application of 124A, however, are flawed, as our research indicates.
An analysis of an Article 14 database of sedition cases found that nearly 12% of acquitted individuals were acquitted on account of the lack of sanction for prosecution by the government, but this key safety hatch failed to protect the accused from lengthy trials.
Our database also found that in more than 60% of cases over a 10-year period, other laws, such as the UAPA, the Information Technology Act, 2000, the Arms Act, and the Criminal Law Amendment Act, were added to FIRs that applied Section 124A. The offence of sedition is, therefore, much more entangled with these other laws than is thought to be.
Despite various guidelines on when to invoke sedition law, the database showed that violation of SC orders on the applicability of section 124A was widespread—of 405 Indians charged with sedition over the past decade for criticising politicians and governments, 149 were accused of making “critical” and/or “derogatory” remarks against Modi, 144 against Uttar Pradesh (UP) chief minister Yogi Adityanath.
This was in spite of an apex court verdict as far back as 1962 clarifying that an offence is made out under section 124A only when there is incitement to public disorder or violence.
The database offers a count and analysis of all sedition cases filed across India since 2010. It uses data mined from various sources including the district court portal, state police websites, high courts and law-centric websites such as Indian Kanoon, SCC Online and Manupatra.
Guidelines Exist, Do Not Work
In 1962, the Supreme Court in Kedar Nath Singh Vs. State of Bihar read down section 124A, and held that only insofar as a speech tended to incite public disorder and therefore, stability of the state, it would constitute an offence under sedition.
The court reaffirmed this position in Balwant Singh & Another Vs. State of Punjab. However, the Kedar Nath Singh judgment did not clarify who decides whether there was an incitement to violence.
“It is now clear (from the Article 14 data) that the law is not being misused, but is being abused,” Justice (retired) Madan Lokur, a former judge of the Supreme Court, who also previously served on Article 14’s Advisory Board said in February 2021. “It’s a great tragedy, more particularly so because from the brief description of cases, it would appear that many of them would run foul of the law laid down by the Supreme Court in the Kedar Nath Singh and Balwant Singh decisions.”
Even when general guidelines exist, the police continue to file sedition cases without procedure.
Arnesh Kumar Vs. State Of Bihar & Another requires that a magistrate record in writing that a prima facie case is made out against an accused before ordering a detention or an arrest. However, an investigation by the Indian Express found that in 25 arrests in Uttar Pradesh, Karnataka and Assam over protests against the Citizenship Amendment Act (CAA) 2019, the remand orders showed that this question was not addressed.
Such hasty filing of sedition cases by the police traps an individual in a process that has deep societal and psychological implications. In a three-part series on sedition cases in Karnataka, Article 14 reported the impact of wrongful arrests in sedition cases that result in loss of jobs and education, accumulation of debt and alienation from society.
Over a decade, for instance, the Karnataka police filed sedition cases against 46 people for social media posts, violating Supreme Court guidelines that, as we said, require a clear incitement to violence before a sedition charge. The accused include traumatised farmers, shopkeepers, daily wage workers & students.
Senior journalist Geeta Seshu, advisor to the sedition database at Article 14 and co-editor of the Free Speech Collective, said that in multiple interviews she conducted with those charged under 124A, including well-known activists and citizens who merely expressed a point of view, the process to establish their innocence was “punishing”.
“However, the psychological impact of such a completely outdated and unjust charge is much more damaging,” she said, adding she was hopeful that the SC would respond “positively” to the plea to strike down the law.
Another guideline regulating the use of sedition is Section 196 of the Code of Criminal Procedure (CrPC). It states that “no court shall take cognizance of any offence punishable under Chapter VI” of the IPC except with the previous sanction of the union or state government.
The government is expected to apply its mind to the materials provided by the investigating agencies, based on which it may or may not grant sanction to proceed with a trial. Since considerable public resources are invested in a trial process, Section 196 is a crucial opportunity for the government to weigh its legal options.
The Gauhati High Court in Sagolsem Indramani Singh and Ors vs State of Manipur also held that the appropriate sanctioning authority must ensure that there is a proper case to put a party on trial before trial. Similarly, in Union of India vs Samarathmal, the Madhya Pradesh high court held that the sanction granted must show the application of mind and should not be a mechanical process.
On 28 February 2020, the government of Delhi granted sanction to prosecute Kanhaiya Kumar and others in a case where they were accused of raising slogans. Slogan raising alone is not seditious, an interpretation already affirmed by the Supreme Court in Balwant Singh and Anr vs State of Punjab.
The Delhi government, however, claimed that it does not intervene in such cases “as a matter of policy and as a matter of principle”, and that it was for the courts to decide on the merits of such cases. The government called the matter ‘procedural’. Whether the government’s sanction was based on sound legal opinion will emerge at the end of the trial.
We accessed judgements for 115 people acquitted of sedition over the last ten years, and found that at least 14 were acquitted due to lack of sanction by the government.
In at least one case, the prosecution did not produce the sanction orders before the court. In other words, an accused is made to undergo an entire trial without the necessary sanction order.
Multiple Petitions Have Sought To Strike Down Law
Challenges to the sedition law are not novel. In the last five years, a spike in sedition cases has provided a stimulus to several rights-based bodies and individuals to approach the apex court for a remedy.
In the set of challenges being heard at present, the first petition was a public interest litigation (PIL) filed on 21 February 2021 by Kishorechandra Wangkhemcha and K L Shukla, two journalists booked for sedition. Hearing the plea, the bench comprising Justices U U Lalit, Indira Banerjee and K M Joseph of the Supreme Court issued a notice to the government of India, seeking their reply.
Following this, eight different petitioners approached the Supreme Court, including the Editors Guild of India and cartoonist Aseem Trivedi; retired major general of the Indian Army S G Vombatkere; assistant professor of law at the Indian Law Society (ILS) Law College in Pune, Sanjay Jain, a doctor; the Foundation for Media Professionals; journalist and filmmaker Sashi Kumar; economist, author and journalist Arun Shourie and Common Cause, an advocacy group; the People’s Union for Civil Liberties; and journalists Patricia Mukhim and Anuradha Bhasin.
On 15 July 2021, writ petitions by two Telugu news channels, TV5 and ABN Andhra Jyothi, were tagged to be heard along with Wangkhemcha’s petition, along with the petitions by Vombatkare and the Editors’ Guild. They sought quashing of the “suo moto'' first information report (FIR) registered against them on charges of sedition.
Earlier, on 17 August 2016, Common Cause filed a PIL before the Supreme Court to issue necessary directions and guidelines to prevent the misuse of the sedition law. The court was of the opinion that it was not necessary to deal with any other issue beyond a mere reiteration of the principles of Kedar Nath Singh vs State of Bihar, under which an act is considered seditious only if it incites violence.
On 9 February 2021, a PIL filed by lawyers Aditya Ranjan, Varun Thakur and V Elanchezhiyan was rejected by a Supreme Court bench comprising the then Chief Justice S A Bobde, Justices A S Bopanna and V Ramasubramanian, on grounds of lack of a ‘cause of action’, as the petitioners were not affected by the law themselves.
On 3 June 2021, the Supreme court quashed the FIR against senior journalist Vinod Dua and mandated that every journalist will be entitled to protection from charges of sedition through the court’s decision in Kedar Nath Singh vs State of Bihar.
Making Journalists An Exceptional Category
In the petition to quash the sedition FIR against him, Dua prayed that the apex court issue directions regarding FIRs against media persons with “at least 10 years’ standing”.
He argued that such FIRs should not be registered unless cleared by a committee to be constituted by every state government, whose composition should include the chief justice of the high court or a judge designated by him, the leader of the Opposition and the home affairs minister of the state.
In addition, he said journalists should be an exceptional category, as the SC had done in Lalita Kumari vs Government of Uttar Pradesh, where the court held that a preliminary enquiry need not be undertaken before registration of an FIR except in certain categories such as matrimonial disputes/ family disputes, commercial offences, medical negligence cases and corruption cases.
The court did not agree with Dua, but affirmed that every journalist will be entitled to protection under Kedar Nath Singh vs State of Bihar.
On 31 May 2021, hearing the petitions by TV5 and ABN Andhra Jyothi, Justice Chandrachud suggested the need to reinterpret the ambit and parameters of 124A, particularly in relation to protecting rights of media professionals.
Making members of the media an exceptional category will invite criticism. Given that our database found a range of expressions targeted under the sedition law, from mere holding of posters to social media posts, to raising slogans and private communication, the ambit of who has been charged with sedition extends much beyond journalists.
It will also be difficult to define the scope of ‘media’ considering the rise in sedition cases slapped on those who posted/published content on social media.
Replacing Sedition: The Problem With Other Laws
The arguments to strike down the sedition law primarily rest on the ground that the law violates the fundamental right to freedom of speech and expression guaranteed by Article 19(1)(a) of the Constitution of India, and that the vague and broad provisions of the section cast a chilling effect on that freedom.
However, another argument in support of the repeal says that other laws exist to replace this law against sedition, making Section 124A of the IPC unnecessary and redundant.
Other laws that govern public order and national security include the Arms Act 1969, the Unlawful Activities Prevention Act 1967 (the UAPA) and The National Security Act 1980 (the NSA). Other provisions of the IPC such as Sections 153A and 153B also cover the material offences that the sedition law seeks to target.
The assumption that these laws, which include national security legislations, are any less arbitrary or abusive, is misplaced. These alternatives to the sedition law have been regularly evoked against peaceful dissenters including JNU scholar Sharjeel Imam, activist Akhil Gogoi, Dr Kafeel Khan, Bhim army leader Chandrashekhar Azad, photojournalist Masrat Zahra and journalist Kishorechandra Wangkhemcha. The invocation of UAPA on over 102 social media account holders in Tripura amidst the government’s failure to control communal violence is another testament to why the argument that the UAPA or the NSA can replace sedition deserves scrutiny.
The UAPA was amended in 2019 to allow individuals to be designated as ‘terrorists’, in addition to organisations. Further, the UAPA permits default bail to be granted only after 180 days in custody, as opposed to 60/90 days under the CrPC. Even at the stage of bail, the Supreme Court in National Investigation Agency vs Zahoor Ahmad Shah Watali held that courts do not have to look into evidence and can rely on the materials provided by the prosecution alone. This limits the chances of an accused being granted bail.
Similarly, the National Security Act provides for the government to detain people on vague or non-existent grounds for a period “as it thinks fit”, for a maximum of 12 months. An April 2021 investigation by the Indian Express revealed that the Allahabad High Court quashed 94 out of 120 detention orders under NSA across 32 districts in Uttar Pradesh. In the time taken for the order to be quashed, an individual wrongfully detained under this law loses many months or years of their life behind bars.
Anushka Singh, author of Sedition in Liberal Democracies and advisor to the sedition database at Article 14 said that while it was imperative to strike down section 124A, it was also equally important to understand that sedition is only one of the many laws used to criminalise an entire range of expressions “that a democracy should be able to tolerate”.
“These expressions need to be liberated from the loose ambit of criminality of a gamut of other provisions within existing security legislations such as UAPA,” said Singh.
The BJP Stands By A Colonial Law
Section 124A was first introduced by the colonial British administration in 1870 against Indian nationalist leaders and revolutionaries, as the demand for freedom gained ground after the first war of independence in 1857.
Its most famous undertrial was Mohandas Karamchand Gandhi, who in March 1922 faced trial for sedition for three articles he wrote in Young India, a weekly paper that he had started. At the trial, Gandhi called sedition the “prince among the sections of the IPC designed to suppress the liberty of the citizen”. It was, he added, his “privilege” to be charged under the section “as some of the most loved of India’s patriots”.
The retention of the law in an independent India had been a matter of a fierce debate—the country’s first Prime Minister Jawaharlal Nehru called the provision “obnoxious” and “highly objectionable” and had added that “the sooner we get rid of it the better”.
Over the last six years to 2020, senior leaders of the BJP, including Modi, have backed the sedition law. When the Congress’ manifesto on the eve of the 2019 general elections promised to repeal sedition, Modi mocked the move and accused the Congress of “stooping low to come back to power”.
“Congress wants to encourage those who burn the tricolour, those who do not chant Jai Hind like you and me and rather utter the divisive lines like Bharat tere tukde tukde (India, may you become pieces),” he had then said, in an election rally in Guwahati.
Days after Modi’s speech, then Union Home minister Rajnath Singh said that the party planned to “make provisions of the sedition law more stringent to check anti-national activities,” if it was elected to power for a second term.
After Modi came to power in New Delhi, the BJP’s rise across state capitals has been meteoric—from ruling seven states in 2014, it controlled 21 states by 2018. The party’s rise has coincided with the increasing use of the sedition law.
(Sakshi and Nikita are on the Core Research Team at Article 14’s Sedition Database. Sakshi is a doctoral candidate at the Centre for Political Studies, Jawaharlal Nehru University and Nikita is a fourth-year law student at NALSAR University of Law, Hyderabad.)