The remarks made by the Chief Justice of India, questioning the need for the offence of sedition, 75 years after independence, echoed the concerns of many citizens about this much misused law.
It follows the Supreme Court judgment in Vinod Dua’s case where the court held that sedition would be a prosecutable offence only in terms of the law laid down in the 1962 Kedar Nath judgment, where it was held that “a citizen has a right to say or write whatever he likes about the government, or its measures, by way of criticism or comment, so long as he does not incite people to violence against the government established by law or with the intention of creating public disorder.”
Yet, sedition as an offence is being increasingly used to stifle legitimate protest, without any regard for the contours which the apex court had demarcated for it in 1962. A recent study published by Article14 reveals that large numbers of these cases are filed for criticisms of politicians in government. Sedition, even as it stands defined under the Indian Penal Code, simply cannot be used to criminalise such criticism.
The fact that sedition is misused not only where the offence alleged does not amount to “sedition” but also where the offence alleged could not possibly amount to sedition makes the existence of this offence on the statute book particularly problematic. Erudite criticisms of sedition and other laws that are being used to penalise dissent miss one important facet of the operational methodology of the current ruling dispensation. This is that they want to silence criticism and dissent, legalities and associated niceties be damned.
In a country where hundreds of cases have been filed under Section 66A of the IT Act, which was declared “unconstitutional” half a decade ago, removing sedition from Indian criminal law would only offer a partial relief. When the intent is to harass and intimidate, other sections of the law which criminalise hate speech would likely be used in its stead. In the words of B.R. Ambedkar, “Democracy in India is only a top-dressing on an Indian soil, which is essentially undemocratic..”, similarly much of the liberal activism that one sees has little, if anything, to do with the daily life of non-metropolitan India.
While there are significant sections of the population, in the smallest town and village, who are certainly more aware of their rights than they were in 1950, a lack of engagement with the mofussil system, regarding political and social rights, has meant that these rights are often violated with impunity.
None of this, of course, is to say that the offence of sedition should not be declared “unconstitutional”. The welcome remarks of the Chief Justice in the court will hopefully lead to a judicial conclusion that will stop the worst of the excesses caused by misuse of the law of sedition in India. Laws, including judicial pronouncements, have to be made to function on the grounds. As long as the police officer feels comfortable in misapplying stringent laws for his own purposes or for the purposes of the current political rulers, liberty will remain a myth.
The Unlawful Activities (Prevention) Act (UAPA) is a glaring example of this reality. The UAPA, justified, as a stringent anti-terror law is now widely used against protesters and dissenters. In a non-metropolitan context, let alone police officers, even lawyers seem unaware of laws and principles designed to protect personal liberty. Else, they seem reluctant to take on the local bigwigs let there be some kind of a consequence. This is certainly true of the Hindi belt. One usually finds things to be a bit better as one goes further south.
The danger of laws that criminalise speech is that they are open to much more subjective interpretation than the run of the mill crime. Assault, hurt and grievous hurt are defined crimes. The medical evidence is enough to prove which category the crime falls in. Subjective crimes are dependent on the thinking of the police officer, the prosecutor and the judge. This is what makes them much more prone to misuse.
Something which is an offence in the eyes of one judge may not be so in the eyes of another judge. There is little opportunity cost for the police officer to add these stringent sections of the law, like sedition or UAPA, to make the offence look more serious and to affect the chances for bail of the accused, at the very initiation of such proceedings. It is for this reason that such laws, unless absolutely necessary, ought not to be on the statue books.
Even if read down, it will need throngs of lawyers, activists, civil servants and politicians to make sure that the change made by the Supreme Court percolates down to the lowest levels of the system. It is time to democratise the soil, top and bottom. There is no other possible solution.
Sarim Naved is a Delhi-based advocate.