Last week, Amulya Leona, 19, a journalism student, was arrested and charged with sedition for sloganeering “Pakistan Zindabad” at a protest against the Citizenship Amendment Act (CAA) in the city. In January, another student Nalini B was charged with sedition in Mysore, after she held up a placard that said “Free Kashmir”. But do such slogans or placards really qualify as sedition?
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As a law student I was introduced to ‘sedition’ while reading Gandhi’s statement during what is known as The Great Trial of 1922. In his concluding remarks, Gandhi invites the judge to convict him of sedition, with the following words:
“I am endeavouring to show to my countrymen that violent non-co-operation only multiples evil, and that as evil can only be sustained by violence, withdrawal of support of evil requires complete abstention from violence. Non-violence implies voluntary submission to the penalty for non-co-operation with evil. I am here, therefore, to invite and submit cheerfully to the highest penalty that can be inflicted upon me for what in law is deliberate crime, and what appears to me to be the highest duty of a citizen.”
I would have thought that a legal provision such as sedition, which was a tool for the British to subvert the freedom movement, had been urgently removed after independence. As Amulya Leona and Nalini B from Mysore will now testify, sedition and the attitude of tyranny has remained long after the British left.
Sedition law punishes “disaffection” towards govt, not country
Sedition, an offence under Section 124A of the Indian Penal Code, 1860, is curiously worded. It penalises words, signs or representations that provoke or intend to provoke hatred, contempt or disaffection towards the government, with imprisonment of up to three years. We could perhaps argue that Gandhi had a just cause whereas today’s seditionaries don’t. But what hasn’t changed is the mischievous potential for sedition to be misused by governments.
Since the objective of Section 124A is to criminally punish attempts to incite hatred, contempt or disaffection towards the government and not the country, it is a provision dear to every government. The Congress brought sedition charges against Aseem Trivedi for his cartoons supporting the Lokpal movement.
And today, charges are being brought against a 19-year-old student activist in Bengaluru and another student in Mysuru for citing slogans and holding placards that spoke positively of Pakistan and the cause of Kashmir respectively.
The effort of this article is to review the legality of this seemingly-injudicious application of the offence of sedition.
Law has to ensure that govt or protesters don’t suppress each other
First, it is important to understand the role of law when we have mass protests against the government. The law, and institutions of the law – be it the police or the judiciary – are placed in the role of referees.
The right to protest is founded upon the
- freedom of speech and expression,
- right to life and liberty, and
- right against arbitrariness under Article 14 of the constitution.
In the contest between the right to protest, and the power of the state to make and implement policy, law and order acts as a referee. It ensures that the fundamental rules of public order and safety are followed, and that neither party uses unfair advantages or illegal methods like violence, to suppress the other.
Essentially the Indian Penal Code (IPC) and all other legislations operate to maintain the sanctity of the ring in which the political fight of our times – no matter how well-founded or not – is fought; but they do not intervene unless the rules are broken.
Stray slogans are not seditious: Supreme Court judgement
The question now remains if the shouting of slogans favouring Pakistan or advocating a free Kashmir is sedition. Either the political correctness or the strategic acumen of these remarks can be debated. We could argue that these statements are offensive to Indian morals and betray the interests of the Indian population.
This is the exact translation pic.twitter.com/s6AchH0QBL
— Rasheed Kappan (@kappansky) February 21, 2020
But for the purposes of determining whether an offence of sedition has been committed under Section 124A of the IPC, what is to be checked is if these slogans and placards qualify as legal wrongs.
Supreme Court, in the case of Balwant Singh and Anr. Vs State of Punjab, Criminal Appeal No. 266/1995, categorically held that the shouting of stray slogans like “Khalistan Zindabad” and “Hindustan Murdabad” does not qualify as sedition by holding as follows:
“It appears to us that the raising of some slogan only a couple of times by the two lonesome appellants, which neither evoked any response nor any reaction from any one in the public can neither attract the provisions of Section 124A or Section 153A IPC. Some more overt act was required to bring home the charge to the two appellants, who are Government servants. The police officials exhibited lack of maturity and more of sensitivity in arresting the appellants for raising the slogans – which arrest -and act the casual raising of one or two slogans – could have created a law and order situation, keeping in view the tense situation prevailing on the date of the assassination of Smt. Indira Gandhi. In situations like that, over sensitiveness sometimes is counterproductive and can result is inviting trouble. Raising of some lonesome slogans, a couple of times by two individuals, without anything more, did not constitute any threat to the Government of India as by law established not could the same give rise to feelings of enmity or hatred among different communities or religious or other groups.”
Even in the case of Amulya Leona in Bengaluru, or Nalini B in Mysuru, neither did their representations provoke hatred or contempt towards the state nor did they even condemn the state to begin with.
On the contrary, Indians now thirst for their blood and are actively committed to hating them both. But the fact is that a statement praising another country or advocating the freedom of Kashmiris, while provoking debate, does not qualify as sedition by virtue of the Supreme Court judgement cited above.
Slapping cases against Amulya and Nalini is both unethical and illegal
When presented with this position of law, it’s not uncommon for the pro-sedition camp to suggest – “let the court decide if these girls are guilty of sedition or not”. My counter to this is twofold. First, that it is unethical and petty on our part to subject our young activists to such tyranny. And second that, by law, pursuing a trial against these girls, when the ingredients of sedition are not made out, is not legally permissible.
On the first point, let us remind ourselves that we are talking about girls who are admittedly very young. Slapping them with grave charges such as sedition essentially inflicts a civil death upon them even if they are ultimately found innocent. It could be detrimental to their career, and adversely affect their ability to pursue education and job opportunities both in India and abroad. We cut our younger population some slack even if they offend our sensibilities as long as they don’t commit a crime.
|Nalini B, an alumna of the University of Mysore, was charged with sedition for holding a ‘Free Kashmir’ placard at an anti-CAA protest on January 9. Mysore Bar Association then passed a unanimous resolution to not appear for her in court.
Nalini released a video clarifying that her poster referred only to the internet shutdown imposed in Kashmir, and apologised for the confusion it caused.
The baggage of power is responsibility, and the legitimacy of power is exemplified by the maturity of those who hold it. At the very least, power in a democracy comes with a duty to encourage the spirit of political participation by our youth, regardless of whether such participation subscribes to our notion of correctness. We must understand that indifference of our youth to political developments is a far greater threat than the perception that they are susceptible to “wrong” political ideas.
Most famously, Jawaharlal Nehru saw in Atal Bihari Vajpayee a statesman in the making. While they remained on different sides of the political spectrum, Nehru never ceased to appreciate and encourage the spirit of a young and upcoming Vajpayee. And history is witness to what Vajpayee eventually became.
On the second point of legality, any lawyer remotely familiar with the Code of Criminal Procedure (CrPC), 1973, will testify to the legal position under Section 482 of the Code. Under this section, courts have repeatedly held that the registration of a First Information Report (FIR) based on information that does not make out the ingredients of a crime, results in abuse of the process of law.
On this basis, complaints and FIRs have been quashed without letting investigations proceed up to the trial stage. Quashing unfounded criminal cases as per Section 482 of the CrPC is meant to relieve the accused of the indignation and inconvenience of a full-fledged investigation and trial when in fact they have committed no crime.
Besides, our police force is severely understaffed, grappling with a police-to-people ratio of 1:1000. Given this, relieving the police of the responsibility to investigate cases that do not disclose a crime (such as complaints of sedition in respect of stray slogans) serves the national interest of ensuring that genuine criminal cases like rape receive expeditious response of our legal system.
I firmly believe that India’s strategic interests and Kashmir’s welfare is best served with Kashmir being integrated into the nation. I also firmly believe that shouting “Pakistan Zindabad” in today’s oversensitive climate smacks of indiscretion and immaturity. But it is still not sedition to endorse a free-Kashmir cause or to praise our neighbouring country.
Denying legal representation to Nalini is illegal
As men and women of the law, police personnel and lawyers swear to uphold the Constitution of this country. Implicitly, we swear to practice and implement the law without passion or prejudice. We undertake to keep our personal feelings on a subject aside and to objectively advance the rule of law.
Therefore, with due respect to my brothers in the Mysuru Bar Association, the Bar Council Code of Ethics governing our profession makes it a solemn duty – with a corresponding threat of action in case of professional misconduct – to never refuse representation to a client. It also obligates us to never usurp or take upon ourselves the power and function of the court to pronounce the guilt or innocence of the accused.
To deny the benefit of our professional duties to these two young girls passionate about politics – even if we conclude that they are misguided – is illegal and immoral.
The strength of a nation is not only represented by the might of its armed forces, but the propensity of its people for compassion and magnanimity. With due respect, calling for imprisonment or in some cases even the murder of these activists by antisocial elements, is a sign of insecurity and cowardice at worst, and pettiness at best.
When the position of law is clear that sedition does not apply to stray sloganeering and holding placards, the only just thing left for the state to do is to remove the criminal charges against Amulya and Nalini immediately, with the state’s deepest apologies.