The controversy stirred up by speeches given by Arundhati Roy and Hurriyat leader SAS Geelani, among others, has once again underlined the arbitrary manner in which the state can operate when it comes to allegations of sedition and other punitive laws.
In spite of the storm raised by jingoists and others of their ilk, the government, initially, decided against initiating any criminal proceedings against the speeches, delivered at a seminar on Kashmir entitled ‘Azaadi-the only way’ in New Delhi on 21 October 2010.
Then, the judiciary got into the act. A group of Kashmiri Pandits grouped under the banner of ‘Roots in Kashmir’, filed a complaint seeking registration of criminal cases against Roy-Geelani for the speeches they had delivered. A local city court on 3 November 2010 issued notice asking the Delhi Police to respond. Meanwhile, Justice Hima Kohli of the Delhi High Court entertained a Public Interest Litigation (PIL) seeking the initiation of criminal proceedings against Roy-Gilani with regard to the same speeches and issued notice on16 November 2010.
The Delhi Police submitted a report that the accused had made no inflammatory speeches and no offense as to sedition could be made out against Geelani, Roy and other speakers. But Navita Kumari Bagha, Metropolitan Magistrate (MM), rejected the Delhi Police report, and, going by newspaper reports, introduced a new term in the legal lexicon by labelling the police report as “weird”. The MM observed that there was prima facie cogent evidence against the accused and directed the police to file a FIR and submit a report to the Court by 6 January 2011.
The Delhi Police then filed an FIR on 29 November 2010 against Arundhati Roy, Hurriyat leader Syed Ali Shah Geelani, Professor S.A.R. Geelani of Delhi University( who was acquitted in the Parliament attack case), poet Varavara Rao, Professor Sheikh Shaukat Hussein of Kashmir University, Shuddhabrata Sengupta of Raqs Media Collective and Sujato Bhadro, a civil liberties activist.
While the most serious of the charges is sedition under Section 124- A, other sections of the IPC like promoting enmity between classes (Section 153A), imputations, assertions prejudicial to national integration (153B), insult intended to provoke breach of peace(Section 504) and statements, rumours, reports to cause mutiny, create hatred or ill- will between different classes (Section 505) have been invoked. Along with the IPC provisions, Section 13 of the Unlawful Activities (Prevention) Act, 1967 (UAPA) which punishes unlawful activity with seven years imprisonment has also been added.
Supporting claims of secession, questioning territorial integrity and causing or intending to cause disaffection against India fall within the ambit of ‘unlawful activity’ (Section 2(o) UAPA).
Today, this is the factual matrix in which the procedural and substantive law is to be examined. However, given the penchant of people and the inclination of courts to entertain petitions to solve various diverse problems plaguing society, tomorrow we may well hear about a PIL in the Supreme Court seeking a solution to the “Kashmir Problem”. The Criminal Procedure Code, 1973 (CrPC) prescribes and governs all matters pertaining to investigation, prosecution and trial of offences.
Unlike the system in France, where the Magistrate is involved at the stage of investigation, in India, investigation falls strictly within the domain of the investigating agency, which is generally the police. In the present case, the Metropolitan Magistrate is well within her powers to direct the registration of an FIR on the basis of the information received from the complainant group “Roots in Kashmir”.
The registration of an FIR is the first step and forms the basis for initiation of investigation. The police commence investigation and depending on the material and evidence discovered, either file a charge sheet against the accused or file a “final report” submitting that no offence is made out against the accused.
Under the Indian legal system, for better or for worse, the Magistrate cannot direct the police to file a charge sheet if the police concludes that no offence is made out. Registration of an FIR on the orders of the Magistrate does not automatically result in a charge sheet by the police. In the present case, it is open to the police to file a charge sheet or a final report after due investigation.
Coming to the substantive law, Section 124 A of the IPC on sedition lays down that whoever by written or spoken words, or by signs or visible representations attempts or brings into hatred or contempt or attempts or excites disaffection towards the government established by law shall be punishable with life imprisonment. The explanations to the proviso exclude comments expressing disapprobation of government or administrative measures as long as they do not excite hatred, contempt or disaffection.
An emotion like affection or rather the absence or alienation of affection ??" “disaffection”, enjoys a vital place in the grand crime of sedition or “the princes among the political sections of the IPC designed to suppress the liberty of the citizen”, the words used by Mohandas Karamchand Gandhi, the father of the Nation at his trial for sedition in 1922 by the court at Ahmedabad. In his inimitable style Gandhiji declared that preaching disaffection against imperial rulers had become his foremost duty, pleaded guilty and invited sentence.
Laws creating offences involve the curtailment of the most fundamental of rights of life and liberty of an individual, and, therefore, generally lay down precise and specific ingredients which have to be established before punishment can be imposed. For example, offences like theft, murder and dacoity are precisely defined as to the acts which constitute the crime and there is little room for the exercise of arbitrariness and play of subjectivities.
In contrast, offences like sedition, with the use of imprecise and vague phrases like disaffection, leave greater room for arbitrary use and for the play of subjective notions of the executive as well as of the judicial officers. Similarly, acts like “terrorism”, “disruptive activities” and “unlawful activities” have been defined in broad imprecise terms under laws like Terrorism and Disruptive Activities (Prevention) Act, (TADA), Prevention of Terrorism Act, 2002 (POTA) and UAPA. This leaves room for pick and choose by the Executive in the use of the punitive laws. The phrases employed in such extraordinary laws have led to the provisions being used against peaceful protests by farmers, agitations by workers or even led to the targeting of minorities by those in power.
Wisely, in post-Independent India, sedition has not been frequently used by the Executive. However, the broad and vague definition of the offence remains and can be used to cover a wide variety of acts, which would not fall within sedition in the ordinary common sense understanding of the term. The range of acts which can be brought in its ambit can be seen in the conviction of Bal Gangadhar Tilak for sedition in 1897 for publishing a poem about Shivaji and the killing of Afzal Khan.
In a similar vein, the Bombay High Court in 1910 held the publication of a photograph titled “The Nation Personified” showing a self-reliant India wearing bracelets of self-rule(swarajya), and hail motherland (vande materam) and holding the sword of boycott (bahishkar) as seditious. Recently, in the context of the present agitation in Kashmir, young boys throwing stones at security forces have in some cases been charged with the serious crime of sedition. There also have been a few instances in Bihar, where youth who blackened the face of a minister- a minor offence by any standards- were charged with sedition.
After Independence, Parliament amended section 124A to insert the punishment of “imprisonment for life” instead of “transportation for life or any shorter term” but chose to retain the substantive provision. If the section is literally and strictly interpreted blaming the government for the ills prevailing, accusing it of being indifferent to the sufferings of people or not doing enough for the uplift of the exploited could amount to exciting disaffection against the government and seditious.
The current developments in the Roy-Geelani case focus attention on whether under our system of parliamentary democracy (with the guaranteed fundamental right to freedom of speech and expression enshrined in the Constitution) spreading disaffection against the government of the day should be categorized as a crime. We are a long way away from thinking that ‘spreading disaffection against reigning regimes’ may actually be seen as a valuable input for the functioning of the system, thus contributing towards better governance and accountability!
(The Writer is an advocate of the Supreme Court)