By Olav Albuquerque
Mumbai: The 48th Chief Justice of India N V Ramana on July 15 veered around to the view that the offence of sedition should be scrapped from the statute books when he asked the federal government where was the need to retain this colonial law.
“This archaic law is a serious threat to all democratic institutions and holds ‘enormous power’ for misuse with the executive not being responsible,” the three-judge bench led by Justice Ramana observed. He likened this obsolete law which the founding fathers omitted from the Constitution to “a saw” which a carpenter could use to cut down an entire forest instead of a tree.
There is no doubt that the law of sedition has been misused to silence those whom the government-of-the-day see as inimical to their interests. Like the Unlawful Activities Prevention Act under which the Jesuit Father Stan Swamy was jailed without bail or a trial, the archaic law of sedition is used to quell dissidents.
Just as the police have arrested people under the extinct section 66-A of the Information Technology Act six years after the Supreme Court scrapped it in 2015, the British police jailed Lokmanya Tilak on July 27, 1897, for sedition. But the British police have now been supplanted by the Indian Police who registered cases against a Padmashree awardee editor Vinod Dua, Congress MP Shashi Tharoor and six journos including Rajdeep Sardesai under the same colonial law for tweeting about the death of a Delhi farmer during a tractor rally on Republic Day which ended in anarchy.
Factual errors in reporting do not constitute sedition. Chief Justice Ramana who started life as a reporter in 1979-1980 for the Eenadu group knows this well as possibly he too may have made a few errors while reporting under deadline pressure.
He had earlier revealed that 2,768 judicial officers and 106 judges of the High Court have tested positive for Covid-19. Would this constitute sedition if these figures do not exactly tally with the latest figures?
Tharoor with his journo friends all filed pleas in the apex court seeking to strike down this law with the latest being a retired army major-general S G Vombatkere who has sought striking down of section 124A (sedition) from the Indian Penal Code, 1860 and quashing of all sedition cases throughout India.
But for this, Justice Ramana will have to set up a seven-judge bench to overrule the five-judge bench which upheld the law in Kedar Nath versus State of Bihar in 1962. The chief justice may not do this because the amicus curiae attorney-general K K Venugopal wants to retain the offence of sedition with specific guidelines.
One day earlier, Supreme Court judge Dhananjaya Chandrachud declared in a public speech that criminal laws should not be misused to hound citizens by stifling dissent. He explained how the Supreme Court is a ‘counter-majoritarian institution’ which is committed to protect the minorities because the judiciary is the first line of defense when citizens are jailed.
Despite such majestic words, citizens like Father Swamy died in judicial custody after being charged under the Unlawful Activities Prevention Act. The Public Safety Act and the National Security Act are two other draconian laws which are misused to stifle dissent, rendering the sedition law an obsolete weapon to be used against dissenters. More so, when the United Kingdom, where this law was born, scrapped this archaic law.
The CJI-in-waiting Justice Dhananjaya Chandrachud, will head the Supreme Court next year which deprecated the Delhi High Court judgment granting bail to three accused by pointing out the Unlawful Activity under the Unlawful Activities Prevention Act (UAPA) did not define precisely an unlawful activity.
This is the very same Supreme Court which declared the statements in the FIR made under the UAPA against suspects should be presumed to be true so they were not entitled to bail. How certain judges interpret these draconian laws within their court rooms is the exact opposite of their grandiose speeches delivered in public, with the interpretation of laws like the UAPA coinciding with government ideology.
Be that as it may, the apex court has asked the Union government to declare its stand on the law of sedition. First introduced in 1870, the main aim of the sedition law was to deal with “increasing Wahabi activities” in India during the late 1800s as they posed a challenge to the then British colonial government.
The Supreme Court bench of Justices Uday Umesh Lalit and Ajay Rastogi issued notices to the Union government to enunciate their stand after two journalists challenged this law because they had been booked under it. What is strange is there are a plethora of laws to regulate the media such as The Press Council Act, the Cable Television Networks (Regulation) Act and the National Broadcasting Standards Authority, so there is no need to book a journalist under the law of sedition for mistakes made in news reporting.
These laws exist apart from the new Information Technology rules which apply indiscriminately to all digital content so even those who forward a WhatsApp message can be booked. These new I-T rules which are subordinate legislation, are dangerous weapons used by the Union government to emasculate the media with vague words like “half-truths” “good taste” and “decency” which can be twisted to suit the whims of those in power.
These vague words are contained in the so-called “reasonable restrictions” of Article 19 (2) which have a chilling effect on he rgh to freedom of speech and expression guaranteed by Article 19 (1) (a). Sedition was vehemently opposed by our founding fathers which is why it was dropped from the eight reasonable restrictions. The words ‘security of the state’ and ‘public order’ are deemed to be wide enough to ensure that inflammatory speeches urging linguistic or religious minorities to secede from India are not publicized.
This is exactly why the Supreme Court needs to overrule the 1962 judgment of Kedan Nath Singh versus State of Bihar where the judges clarified that disaffection or hatred for the government did not attract the sedition law encapsulated in Section 124-A. There had to be incitement to anarchy to overawe an elected government to constitute sedition.
As these endless debates go on in the Supreme Court, those who have been charged under the sedition law await their fate with trepidation. The police in Chhattisgarh filed a sedition case against an Indian Police Service officer who was suspended for having disproportionate assets. Although he never incited any violence against the Chhattisgarh government, G P Singh was accused of conspiring against the government. Without incitement to violence, this does not constitute sedition.
Ironically, Singh had previously headed the state ACB and its Economic Offences Wing which rouses the suspicion he may have refused to close cases against vindictive politicians. In Maharashtra, the ACB dropped nine cases against their top boss, deputy chief minister Ajit Pawar who was accused in the Rs70,000 crore irrigation scam.
As expected, the ACB claimed there was no link with Ajit Pawar becoming the Maharashtra deputy chief minister and dropping of these corruption cases against him. Unlike G.P. Singh in Chhattisgarh, the ACB chief, Rajnish Seth will not be booked for sedition by the NCP led by Sharad Pawar. As former Mumbai police chief Parambir Singh knows, exposing the home minister may land you in jail.
So, sedition is the anti-thesis of free speech just as corruption is a synonym for power. News anchors like Arnab Goswami may get away by accusing the opposition of being anti-national but Congress MP Shashi Tharoor and journalists like Rajdeep Sardesai, Mrinal Pande, Zafar Agha, Paresh Nath, Vinod K Jose and Anant Nath have a different tale to relate. They were booked under sedition, among other offences for their alleged tweets over the death of a farmer during the tractor rally in Delhi on the last Republic Day.
Those who rule enact communal laws to make us fools. The demolition of a Syro-Malabar church in south Delhi which was allegedly built on encroached land roused the ire of Kerala chief minister Pinarayi Vijayan who spoke to his counterpart Arvind Kejriwal. Kejriwal passed-the-buck by saying the Delhi Development Authority was autonomous. Sedition is used by law-breakers-turned-law-makers to demonize their opponents.
[Olav Albuquerque holds the M Sc, LL.M (gold medalist) and PhD in media law and is a senior journalist-advocate of the Bombay High Court. He is an honorary member of the Goa Union of Journalists.]