Sedition goes viral

Is most free speech becoming seditious because the law is being applied so casually, without the care that is meant to be exercised?
SIDDHARTH NARRAIN and GEETA SESHU reflect on recent events

Protestors at the United Theological  College where the Kashmir-related event took place.

 

It’s raining sedition charges in an otherwise normal monsoon season. This year has seen an unusually high number of sedition-related controversies, what with the JNU saga that played out earlier this year and the two cases of sedition last week , one against a 25-year-old Kashmiri youth, Tawseef Ahmad Bhat who has spent the last 12 days in a jail in Durg, Chhattisgarh, for a Facebook post that allegedly endorsed Kashmir’s independence and another by Bengaluru police against Amnesty International’s India Desk for hosting a meeting on Kashmir where some people raised slogans for Kashmir’s freedom.  

In both cases, members of the right wing Sangh Parivar filed complaints alleging sedition: activists of the Bajrang Dal against Bhat and members of the RSS’s student wing, the Akhil Bharatiya Vidyarthi Parishad (ABVP) against Amnesty International.

Amnesty India’s event, organized on Independence Day, brought together people to discuss human rights abuses by the security forces in Kashmir and the Armed Forces (Jammu and Kashmir) Special Powers Act that makes it virtually impossible to prosecute the security forces for human rights violations in civilian courts. Ironically, they were charged with sedition, an offence that they have been campaigning against extensively for being an undemocratic, colonial-era law that has no place in independent India.

Since January 2016, there have been at least 18 cases of sedition lodged against various citizens, from students and politicians to anti-liquor activists, leaders and activists of reservation movements, Kashmiri activists and even the principal of a school who got a map of India wrong!

Apart from Bhat, two other sedition cases were filed over social media posts, on Whatsapp and Facebook. In January, Anwar Sadiq was arrested in Mallappuram, Kerala for allegedly making insulting comments on Facebook about Lt. Col. Niranjan E. Kumar who was killed while defusing a bomb during a counter-terror operation at Punjab’s Pathankot air force base; In June, Haryana Police lodged an FIR against ‘unknown persons’ for sharing a "provoking" message on WhatsApp on the Jat quota agitation.

While much attention has been paid to the charge against Amnesty International, what needs further reflection is the role of the media, especially that of social media, in mediating the sedition claims. These cases raise important legal and constitutional issues of free vs ‘seditious’ speech in the digital sphere.

Bhat, an engineering graduate who worked in a mobile phone company in Bhilai, was charged with sedition for liking a page that was critical of the Indian government’s stance on Kashmir. He had allegedly forwarded, liked and commented on Facebook posts that the complainants claimed were “anti-India”.

The facts of the case were reminiscent of the 2012 Palghar case in Thane, near Mumbai where, acting upon violent threats by Shiv Sena members, two young women were detained by the police for a violation of section 66A of the IT Act (which was struck down by the Supreme Court as unconstitutional in 2015).

The use of both 66A and sedition in this case, begs the question of how the law takes into account the way in which information travels and opinions are expressed online. It is common for Facebook users to like or share material. All of us are part of Whatsapp groups where all kinds of memes, giffs, news items, and random jokes are shared constantly.

How should the law treat the act of sharing, forwarding, retweeting, or commenting on a post or image? At what point does a private conversation, meant to be shared between friends but leaked on social media, become public speech that can be prosecuted? In the aftermath of the JNU controversy, a clip from a video of a professor at JNU speaking to students inside the hostel premises was widely circulated on Facebook, with accusations that it was anti-national.

Of course, in the JNU episode which sparked the controversy and the charge of sedition against six students of the university, the police action was a direct result of television channels replaying the “anti-national slogans” that were being raised in the university. Subsequent revelations have cast grave doubts about the authenticity of these recordings.

Digital censorship

Earlier this year, following unrest in Kashmir, the District Magistrate in Kupwara issued a circular requiring all “news Whatsapp groups” to be registered with the police. It also made group administrators responsible for the posts of its members. Across India, Whatsapp group moderators are being gradually made culpable for the actions of their members. When it is common for large Whatsapp groups to have members expressing diverse opinions and sometimes forwarding random material, this extends the net of those being made responsible for public order related events very wide, while at the same time allowing the police to pin down culpability.

This is one of the reasons why the police and state governments are increasingly using much more blunt and questionable methods such as blocking internet and mobile services for limited periods of time. We have seen this happen in Gujarat during the Patidar agitation and in Haryana during the Jat agitation. In Kashmir, the scale of government control over broadband and cellular services is unprecedented with frequent periods when the government shuts down access to internet and mobile telephony.

The police’s use of section 144 of the Code of Criminal Procedure (CrPC), a versatile law that gives the police the power to act to prevent public order disturbances, to shut down the internet in Gujarat was challenged by a law student in the Gujarat High Court. The petitioner asked why the existing section 69A of the Information Technology Act, that is meant to deal with internet blocks and has certain inbuilt, procedural safeguards, was not used instead.  Unfortunately, the Gujarat High Court upheld the police action on the ground that there was a serious enough threat to public disorder to warrant this action.

True, the rapid proliferation of new media technologies, cheaper smart phones, faster connections and higher penetration of internet services, has created the conditions where law enforcement authorities are struggling to keep pace with the avenues and velocity with which information flows.

In the world of smart phones and easily available recording devices, anything one says anywhere has the potential to be circulated widely. The authenticity of such material, the context in which the speech occurs, and the originally intended audience or the four walls within which the speech occurs are becoming irrelevant. The so-called danger that this speech is expected to incite is enormously magnified, often in the face of clear evidence that no violence or acts of disruption of public order resulted from it.

This poses serious challenges to our understanding of the law and constitutional protections for speech. These protections are based on the premise that what is being said has to be seen or read in context, that the proximity between the speech act and public order has to be established and that the standard by which this act is judged is that of “a reasonable strong minded, firm and courageous man”. The question is what happens when we transpose these legal protections to a different media landscape.

The Shreya Singhal case where the Supreme Court struck down section 66A of the Information Technology Act is one of the first Supreme Court rulings that addresses the constitutional questions related to freedom of speech on the Internet. In this case, the court carefully distinguished between “discussion”, “advocacy” and “incitement”, and reiterated the high threshold that has been laid down in earlier free speech related precedents.

As per the Supreme Court’s ruling in the 1960 Ram Manohar Lohia case, the state must prove that the connection between what is said and the public disorder that the state claims will result because of the speech, must be proximate, and not remote, hypothetical and farfetched. In the 1962 Kedarnath Singh decision onwards, the Supreme Court has ruled that sedition can be invoked only to curb speech acts that “have a tendency to public disorder by the use of actual violence or incitement to violence”.

Even a cursory look at the recent instances of sedition will show the extent of misuse of the law. The Common Cause petition by senior Supreme Court lawyer Prashant Bhushan seeks some protection from this misuse.

The petition has sought a review of pending sedition cases to determine whether they led to ‘incitement of violence or had the tendency or intention to create public disorder’ and asked the court to make it mandatory for a reasoned order from the director general of police or the commissioner of police before a complaint is filed or an arrest made on charges of sedition.

Today, as law-enforcing authorities readily apply sedition to all and sundry, we do need more stringent protections for free speech, debate and discussion, however unpalatable these views may be. Can a mature democracy withstand dissent, disapprobation and disaffection, without criminalizing and censoring its citizens?

 

A list of the 18 main sedition charges in 2016:

1. January 6, Malappuram, Kerala: Anwar Sadiq, 24, arrested on charges of sedition for allegedly making insulting comments on Facebook about Lt. Col. Niranjan E. Kumar who was killed while defusing a bomb during a counter-terror operation at Punjab’s Pathankot air force base.

2. January 18, New Delhi: Criminal complaint of sedition filed against Chief Minister Arvind Kejriwal for allegedly using “defamatory and seditious” words against Prime Minister Narendra Modi, on Friday argued in a Delhi court that Kejriwal’s statements could spread disharmony.

3. February 9, Bhagalpur, Bihar: A proctor of a Bihar university was arrested for alleged links with Maoists and two suspected guerrillas apprehended from the varsity hostel in Bhagalpur but all three were later released, police said. Professor Vilakhjhan Ravidas, proctor of Tilka Manjhi Bhagalpur University in Bhagalpur and Kapildeo Mandal and Arjun Paswan were released after they filed a bond in a police station.

4. February 12, New Delhi: Jawaharlal Nehru University Students Union president Kanhaiya Kumar charged with sedition after “anti-India” slogans were allegedly raised at the university during a protest meeting held in the university in memory of Afzal Guru, hanged in 2013 after his conviction in the Parliament attack case. Five other students, Umar Khalid, Anirban Bhattacharya, Rama Naga, Ashutosh Kumar and Anant Prakash, were also charged with sedition.

5. February 15, New Delhi: Former Delhi University lecturer S.A.R. Geelani booked for sedition in connection with an event at the Press Club of India in which a group shouted slogans hailing Afzal Guru.  

6. February 18, Allahabad, Uttar Pradesh: Complaint of sedition filed against Congress Vice-President Rahul Gandhi in an Allahabad district court. The complainant, an advocate, alleged that Gandhi took an anti-national stand by supporting protesting JNU students.

7. February 18, Varanasi, Uttar Pradesh: Complaint of sedition filed against Rahul Gandhi, CPI(M) General Secretary Sitaram Yechury, Communist Party of India (CPI) leader D. Raja and Janata Dal (United) leader K.C. Tyagi under Sections 505 (1) B, 511, 124A and 500 of the Indian Penal Code by a lawyer.

8. February 25, Rohtak, Haryana: Haryana police booked former Chief Minister Bhupinder Singh Hooda’s close aide Virender on sedition charges over an audio clip of his conversation in which he allegedly incited violence during the Jat quota agitation. An FIR has been registered in Rohtak against Virender and Man Singh Dalal, who also allegedly figured in the taped conversation, under various sections of the IPC, including sections 124-A (sedition) and section 120-B (conspiracy).

9. February 29, Hyderabad: Sedition case registered against Rahul Gandhi, Delhi Chief Minister Arvind Kejriwal, CPI leader D. Raja, CPM General Secretary Sitaram Yechury and five others in connection with the JNU row. A local lawyer, Janardhan Goud, who claims not to have any political affiliations, filed a complaint in court after which a case was registered in the Saroornagar police station.

10. April 1, Chennai: The Thillai Nagar police registered a case against six persons, including the state coordinator of Makkal Adhikaram, an organisation fighting for the closure of Tasmac outlets more than a month after the organization held an anti-liquor conference in the city. (Tasmac is the state-owned company that has a monopoly over alcohol sales).

11. April 5, Tumkuru, Karnataka: Two students, Jyothi K and V Chinappa, owing allegiance to the All-India Students Federation (AISF), were booked for sedition on a complaint filed by Srinivas, an Akhil Bharatiya Vidyarthi Parishad (ABVP) activist. On March 30, the duo were distributing pamphlets in support of the JNU movement when some ABVP activists reportedly assaulted them and allegedly provoked bystanders by falsely claiming that they were raising ‘Pakistan Zindabad’ slogans.

The two students then registered a case of assault against the four ABVP activists and an FIR was registered the same day. However, Srinivas lodged a complaint that Chinappa and Jyothi had raised slogans ‘Pakistan Zindabad’ and ‘Naxalism Zindabad’, apart from denigrating Shivakumara Swami, the seer of Siddaganga Mutt. Srinivas alleged that when students objected to these slogans, the two activists issued a threat. Acting on this complaint, New Extension Police registered a case under Section 124A of the Indian Penal Code for sedition, among other sections.

12. May 30, Jind, Chandigarh: A day after the Punjab and Haryana High Court imposed an interim stay on the reservation to Jats and five other communities, Haryana Police booked All India Jat Arakshan Sangharsh Samiti  president Yashpal Malik and 125 others under sedition charges for giving a speech provoking people to revolt against the state government, Jind DSP Dinesh Yadav said.

13. June 6, Hisar, Haryana: Haryana Police lodged an FIR under Sec 124A for sharing of a "provoking" message on WhatsApp on the Jat quota agitation. Police said that some mischievous elements were spreading rumours regarding the reservation agitation and police lodged an FIR against unknown persons under section 124 A (sedition) of the IPC and under the IT Act at the city police station in Hisar. City police station SHO Mandeep Singh said they had received a message being circulated on WhatsApp groups with a call to stock up food supplies before the agitation starts. The message also mentioned that the stir would spread across all the northern states this time.

14. July 15, Hyderabad: The 11th Metropolitan Magistrate Court asked Saroor Nagar police station under Cyberabad police commissioner to register a case against All India Majlise-Ittehadul Muslimeen chief Asaduddin Owaisi for sedition for stating that he will provide legal aid to suspected Islamic State sympathisers arrested here last month. The court issued the direction on a complaint by advocate K. Karuna Sagar.

15. July 19, Bhopal, Madhya Pradesh: Police arrested three persons, including Govind Chand Das, principal of Green Bells Public School, the school's owner, and director, Mohammed Niyazi and a printing press owner, Arun Kumar Agarwal, for sedition for distributing a school diary among students that had a map of India printed on it but without Kashmir. The incident took place at Budhar town of Shahdol district.

16. July 21, Kishtwar, Jammu: Saif-ud-Baghwan, 65, and four others were booked on sedition charges in two separate FIRs for allegedly raising anti-India slogans during protests against the killing of Hizbul Mujahideen commander Burhan Wani. The FIRs were registered at Kishtwar police station on July 11 and 15 under Sections 120B (criminal conspiracy), 124A (sedition) and 153A (promoting religious enmity) of the Ranbir Penal Code (the equivalent of the Indian Penal Code in the Valley).

17. August 6, Bhilai, Chhattisgarh: Police arrested Taufiq Ahmed, a Kashmiri man employed in Bhilai, on charges of sedition for commenting on, forwarding and “liking” several “anti-India” posts on a social networking site. Police said that Taufiq, who had studied in Bhilai and now worked in the city, was arrested from a train at Sagar railway station in Madhya Pradesh and sent to judicial custody. An FIR in the case had been registered based on a complaint from Ratan Yadav, the Bhilai coordinator of the Bajrang Dal.

18. August 16, Bengaluru, Karnataka: An FIR was registered against Amnesty International India under various IPC sections, including sedition, in connection with the alleged shouting of "independence" slogans by "pro-freedom" Kashmiris during an Amnesty programme.

 

Siddharth Narain is a lawyer and legal researcher based in Delhi. Geeta Seshu is a senior journalist and consulting editor, The Hoot.

 

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