-By Shraddha and Yana Gupta
(This article is the first part of a two-part series)
In theory India remains a democratic country where its citizen have a constitutional right to speech and expression, but the authors of this article contend that our practice does not match to the high standards set by the democratic ideals.The government is leveraging its position to strike fear by using the very same laws that were enacted to protect the individual and society as a whole. These instances not only require attention but also a renewed discussion and overhaul of the sections of IPC and other loopholes that are being exploited to suppress dissent and cage the citizens.
Body of Laws
The best way to escape obligation is take cover of the law and hence what better way to eliminate conflict of interest by booking the dissenter as a criminal and breaking his spirit and tarnishing his image. There exists plethora of laws available at the dispense of the government of India to criminalize dissent. The Indian Penal code, the paramount source of criminal law in India lays down several provisions in this regard, which were essentially enacted to protect the sovereignty of the country and had to undergo severe judicial scrutiny.
Section 124A of the I.P.C., a swingeing law is often used by the government of India to clamp down on peaceful dissenters. The sedition law is not only nebulously worded but also very broad in criminalizing even the attempt to cause “hatred or contempt” or to “excite disaffection” toward the government. Criminal defamation suits are filed under Section 499 and 500 of the I.P.C. to silence critics in name of harm of reputation entailing disproportionate punishments that a criminal offense evoke. Section 295A and 298 that criminalize deliberate acts of outraging religious feelings are often willingly invoked by the government based on the instinctive response of those who hear the concerned speech. Section 153A criminalizes expression on the ground that it promotes or attempts to promote disharmony between communities. Section 505(2) criminalizes even speech likely to promote hatred between classes. Such catholic provisions provide extensive leeway to infringe on peaceful dissent. Criminal intimidation under Section 503 that criminalizes any threat of injury to reputation of a person even if (s)he is deceased and statements even likely to induce offence against the state, public tranquility or any class or community are criminalized under Section 505(1).The Unlawful Activities (Prevention) Act, 1967, a draconian law that enables the government to ride roughshod over political dissent by labelling it as being “anti-national” or “promoter of terrorism” without proper recourse to judicial scrutiny. In this day and age, internet has become one of the most important platforms for expressing one’s opinion. However, this medium is also not safe from sweeping provisions that authorize crackdown on dissident voices. Section 69 of the Information Technology Act, 2000 authorizes blocking of access to internet content when the government “is satisfied that it is necessary or expedient so to do, in the interest of sovereignty and integrity of India, defense of India, security of the State, friendly relations with foreign states or public order” or for preventing incitement to the commission of offenses that threaten those interests. Article 129 and 215 of the Indian constitution confers the power to punish for contempt of itself on the Supreme Court and High Courts respectively. The Contempt of Courts Act, 1971, that provides the statutory backing to these constitutional provisions, criminalizes, among others, acts that “scandalize” a court that is too elaborate a definition that bonafide criticism may get punished in the name of protecting the public image of the judiciary.
All these acts and statutes and sections have one thing in common – they are vaguely worded, overly broad and prone to misuse. Though court judgements have tried to set up safeguards in landmark cases like Kedar Nath Singh vs. State of Bihar (court narrowed the scope of interpretation in cases of sedition) and Shreya Singhal vs. Union of India (judgement struck down section 66A of the IT Act, to guarantee right to freedom of speech and expression), these are however mostly ignored.
Implementation of Laws
Codes and statutes alone do not constitute the criminal justice system, they just lay down what the law is. The realization of these laws lies in their implementation by the various institutions of the government. Unfortunately, there is a huge mismatch between laws formulated by the parliament and their actual implementation in India and the same is true for laws employed to infringe on peaceful expression. The government is required to frame rules to enable implementation of laws made. However, in relation to various laws the government has not either framed the rules altogether or there has been a non-negotiable delay in doing so. Also, many a times the rules thus framed are not subjected to parliamentary scrutiny due to the excessive workload and therefore the rules may not align with the legal intent behind the statutes for which they have been framed. It is impetuous to offer critique on conduct of the institution that plays an indispensable role in administering criminal justice, that is, the police. Many of the offenses like sedition, criminal contempt of court, Section 69A of the I.T. Act are cognizable which vests a lot of power in the hands of the police as they are allowed to make arrests without warrant. In addition to this, these are non-bailable and the lower courts generally shy away from granting bails when it comes to offences of a national character like sedition, contempt of court and the U.A.P.A. Such construction of laws enables their misuse for purely political purposes. The police are often found slapping frivolous cases on students, activists, journalists and others critical of the government of the day which get stuck in our judicial system for an unreasonable period of time leading to an irreparable loss to the accused. In certain instances, police don’t file charges for a long time after making the arrests. What is more concerning is that the police fail to keep a track of developments in law while enforcing them, for instance, while filing sedition cases, it turns a blind eye to the Supreme Court guidelines laid down in the case of Kedar Nath Singh vs State of Bihar, 1962 that stated that the law was only applicable when there is violence or incitement to violence in the alleged act of sedition.Hence, right to freedom of speech and expression may be self-evident and constitutionally secured but falls short of implementation.
A Glimpse into Recent History
It is no hidden secret that India in recent past was engaged in various riots, demonstrations and heated discussions with the government over a range of issues such as the Transgender Bill, 2019 to Farm Bills, 2020. The headings of the newspapers, magazines etc. were splayed with arrest of the protesters under section 144 of the CrPC or Sedition or UAPA etc. The 2019 National Crime Records Bureau (NCRB), data shows 165% jump in sedition cases and a 33% jump in Unlawful Activities Prevention Act, 1967 (UAPA) cases from the cases registered in 2016. These cases were summarized in the NCRB report under the heading “Offences against State.”
|S. No.||Offences Against the State||2017||2018||2019|
Despite the high number of cases registered and arrests made, the information provided by the Ministry of Home Affairs to Rajya Sabha, point to a proportionately low conviction rates. Out of 96 people arrested for sedition, only two were convicted and out of 56 arrested for sedition for sedition in 2018, no convictions were recorded. In 2019, 1948 people were arrested under UAPA in 2019, all of which resulted in zero convictions and of 1421 people arrested under UAPA in 2018 only four were convicted. Such data makes us question the validity of the vast number of cases filed and the arrest made. Several learned professionals working in the legal arena have come forward to criticize the heavy usage of the laws formulated by the colonial government. Madan B. Lokur, the former Supreme Court judge remarked that sedition law is being weaponized to curb the freedom. Supreme Court in two different judgements of Kedar Nath Singh vs. State of Bihar and Balwant Singh and Bhupinder Singh vs. Sate of Punjab, laid down that sedition law can only be attracted if there is incitement to violence and if there is intention to create disorder.Is twisting and using archaic silencing laws the easiest way to stifle dissent and to create an environment which supports the agenda of the government? Even though the breakup of arrests on the basis of religion, race, gender and social standing was not available from the side of government, informed reports suggest that opposition, students, academicians, journalists formed a major category among those charged under sedition. Since 2014, 405 Indians were booked under sedition for criticizing or passing “derogatory remarks” against governmental regime, majorly against the BJP government at the center (149) and in Uttar Pradesh (144). The acquittal of over 95% people booked under Section 124A clearly highlights the plight of people who had to go through a traumatic experience for just daring to speak up in a democratic country. The actions which are being punished range from just holding a poster to amplifying slogans to social media posts to now just merely “thinking”. Some important cases can be studied in this regard.
In Munawar v. State of Madhya Pradesh, comedian Munawar Faruqui was arrested on the basis of the complaint filed by the son of BJP MLA Malini Gaud. The complaint was directed towards a comedy set which was said to hurt “religious sentiments”. He was booked under Sections 295A and 298. However, the complainant and later the police were not able to produce any evidence before the court. On 28th January, Madhya Pradesh High Court rejected his bail application and Justice Rohit Arya made comments such as Faruqui “must not be spared”. The Supreme Court on 5thFebruary 2021, provided an interim bail to the comedian noting the “vague wording of the argument” and diversion from following proper procedures as laid down in Section 41 of CrPC. The intriguing point is that Munawar was alleged to have cracked indecent jokes but was arrested even before the act could begin and the police justified their stance by saying that he was “going to”. Does Indian criminal system punish for what is supposedly about to be said? Is India entering into an era of pre-empt silencing?
In State v. Disha A Ravi, a 21 year old climate activist, Disha Ravi was arrested on an alleged involvement with an “toolkit” – a set of documents which was conjectured to be an incitement to separatist movement during the ongoing Farmers Protest. This toolkit came to light when Greta Thunberg, an international icon, tweeted about it and linked the document which contained the facts and update of the protests. Disha was arrested on 13th February 2021 and was booked under sections of sedition and criminal conspiracy. Her arrest was condemned on national and international level. Her arrest was seen a blow to internet freedom and yet another attempt to mute the dissent. Additional Sessions Judge of Patiala High Court granted bail and stated that “Considering the scanty and sketchy evidence on record, I do not find any palpable reason for keeping a 22-year-old in custody,” and “Citizens are conscience keepers of government in any democratic Nation. They cannot be put behind the bars simply because they choose to disagree with the State policies.” The judgement clearly guides the administration to distinguish ‘anarchy’ from ‘dissent.’
The data and current scenario encompassing those who are being arrested, force us to question if using draconian silencing laws are a strategy of the government to silence the critics, to promote its own means. It was noted by Article 14 in their database, that during major political events or protests against the central government, the cases under sedition and UAPA etc. shot up, such as after the anti- Citizenship Amendment Act (CAA) protests, the police authorities charged 3,754 persons and filed 25 sedition cases and in the aftermath of Hathras rape, the UP government booked 22 for sedition which included journalists.
Dissent has been identified as a one of the cornerstones of the democracy and there is no doubt that a country needs to safeguard its sovereignty too but to retain laws like sedition, UAPA etc. can be analogously be compared to operating a papercut by a doctor. To ask for accountability from the government is the right of every citizen under the constitution and to deprive them of these rights would be a grave mistake which will handicap the progress of our democracy.
[The authors Shraddha and Yana Gupta are law students at National Law University, Delhi and National Law University, Jodhpur respectively.]