Anti-sedition law: Is it a necessary evil?

On the night of December 17, 1995, a large consignment of weapons, including AK-47 rifles and several hundred rounds of ammunition, was airdropped from an aircraft in the Purulia district of West Bengal. The weapons were confiscated by the police after the locals informed them about the mysterious event. A Dane named Niels Holck, also known as Kim Peter Davy, was later found to be the kingpin behind the operation, and the Central Bureau of Investigation slapped sedition charges in the case.

The sensational events captured the imagination of the public and the political circles: there were allegations that the arms drop was plotted to destabilise the Left Front government of Jyoti Basu in West Bengal. The CBI issued a statement in 2011 dismissing claims that the operation had the nod of “political forces” at the Centre.

An illegal act of this sort, that has the potential to incite an armed revolt against an elected government, can best be described as a seditious act and not just a terrorist plot.

Loknath Behera, a senior IPS officer involved in the investigation of the Purulia arms drop case, said the anti-sedition law should be used sparingly since it entails heavy punishment up to life imprisonment. Moreover, it is also a difficult offence to prove in court. “Sedition cannot be invoked for small offences,” he said. “It has to be used judiciously in the context of the Kedar Nath Singh [vs the State of Bihar] judgment [of 1962], where the constitutionality of Section 124A of the Indian Penal Code was tested and upheld.”

In the Kedar Nath Singh judgment, the Supreme Court narrowed down the scope of the anti-sedition law, saying that mere criticism of the government was not seditious unless it incited violence or disturbed public order. This meant that if the law was not read in the context of this interpretation, it threatened to engulf any expression of opposing opinion—written or spoken—qualifying it as incitement of hatred or disaffection towards the government.

In the last few years, the National Investigation Agency (NIA) has slapped sedition charges in a series of cases. Leaders of the proscribed organisation Sikhs for Justice (SFJ) and terror-accused in Kashmir to politicians and activists protesting the Citizenship (Amendment) Act in 2019 became the accused in these cases. The NIA, set up in the aftermath of the 2008 Mumbai terror attacks, has mixed experience in courts on sedition cases. While the agency successfully proved the charges in some, it failed in many others.

“The anti-sedition law has its relevance,” said a senior NIA official. “When a banned outfit like the SFJ, which propagates the idea of a separate Khalistan state, enters into a social media campaign besides invoking the anti-terror law, such activities also attract penal provisions defined under IPC Section 124A which explains the offence more clearly.”

But there has been a plethora of cases where courts have acquitted the accused. Recently, the NIA court in Guwahati acquitted activist and MLA Akhil Gogoi and three others in a sedition case slapped against them during the height of the anti-CAA protests in Assam in 2019.

Successive governments have used the anti-sedition law with impunity to quell dissent. The result is that several writers, journalists, cartoonists, politicians, activists and students got entangled in the dreaded colonial-era statute. And, the level of sedition charges has stretched the imagination of the law itself.

Two months ago, a sedition charge was slapped against an Assam woman for using a table cloth that resembled the national flag while celebrating Eid. In June, the Guwahati High Court granted her bail. In another instance in Punjab in 2020, a political leader was accused of sedition when he posted a message on social media about the lack of ventilators during the pandemic. The bail order by the Punjab and Haryana High Court termed the use of sedition in this case as an “overzealous exercise of power” by the police. The trial is yet to commence.

The courts are now dealing with several cases of visibly apparent misuse of the anti-sedition law, and this has drawn the ire of the Supreme Court. On July 15, the Supreme Court asked the Union government as to why it was not repealing the provision used by the British to silence people like Mahatma Gandhi.

“Is it still necessary to keep this statute even after 75 years of Independence?” asked the three-judge bench headed by Chief Justice N.V. Ramana, while agreeing to examine the pleas filed by the Editors Guild of India and an army veteran, challenging Section 124A. The bench issued a notice to the Union government and pointed out that the conviction rate in sedition cases is extremely low.

Section 124A was inserted into the IPC by the British in 1870. Repealing obsolete and archaic laws was a poll promise of the BJP. After it came to power, more than 1,200 redundant laws were struck off. A special committee has been set up in the prime minister's office to review archaic laws and make recommendations to the government. But the final word on making changes to the Code of Criminal Procedure, IPC and anti-terror laws like the Unlawful Activities (Prevention) Act (UAPA) and National Security Act lies with the Union ministry of home affairs (MHA). The ministry has constituted a five-member committee to look into overhauling such fossilised legislations, or removing them.

With the review of the sedition law on its table, it is not the first time Home Minister Amit Shah and Home Secretary A.K. Bhalla are burning the midnight oil. The first option is to revise the draconian legislation to make it in sync with the changing times. Second, to issue guidelines based on the directions of the Supreme Court, and third, to strike it down if it has outlived its purpose.

“There is a need for wider consultation on the matter,” said D. Raja, general secretary of the Communist Party of India. “The government should consult stakeholders and get public opinion while making changes to any laws.”

In 2012, the UPA government had walked a few steps to review the anti-sedition law but developed cold feet. A group of ministers was then constituted to suggest changes based on recommendations of the law commission. Former home ministry officials said the view taken was to retain the law after revising the definition for sedition. Several changes were proposed including replacing disaffection against “government” with disaffection against “Parliament, state legislature, Constitution, national flag, national anthem and national emblem”, and reducing the punishment for sedition to a seven-year jail term with a fine. But the proposals never saw the light of day. In the meantime, law enforcement agencies were asked to avoid misuse of sedition and make use of other provisions in the IPC to deal with similar offences of a lesser category.

In the mid-1980s, the Union home ministry had shown greater political will when it came to drafting a law to quell separatist tendencies. P. Chidambaram, former Union home minister told THE WEEK: “In 1987, the Terrorists and Disruption Activities (Prevention) Act was drafted and passed in the context of the rising terrorism in Punjab. It was intended to be a temporary law.” Chidambaram, who was then minister of state for internal security, sat down with M.K. Narayanan, the then director of Intelligence Bureau, and a senior Punjab police officer, to draft TADA that encompassed a wide range of activities, including protests of all sorts. For the first time, it made confessions before a police officer admissible in court, put restrictions on bail and gave enhanced powers to detain suspects. TADA was in force between 1985 and 1995.

According to police officers of that era, the law was grossly misused. Over the years, the Supreme Court read down the application of the law to prevent its misuse. “Safeguards were introduced and the law was upheld by the courts, but still, the law was misused,” said Chidambaram. “The Congress government under P.V. Narasimha Rao allowed the Act to lapse.”

Shantanu Sen, former joint director in CBI who was then deputy inspector general in Punjab Police, said: “I was part of the consultations that drafted TADA. While it was useful at one time to fight terrorism and organised crime in Punjab, I am not mourning its end.”

In western countries, said Sen, various forms of incarceration are there: individuals can be put under house arrest and other steps taken to control their movement if they are found on the wrong side of the law which are not heavily punishable. “But here, the situation of an undertrial is the same as that of a person who is convicted for a crime,” he said. Sen added that simply because the sedition law is being misused, it cannot be struck down. “However, the government should immediately bring provisions to control its misuse,” he said.

The danger, according to law enforcement officers, is that it may open a pandora's box of new forms of misuse. Also, offences that strictly qualify as seditious speech or writing might be stretched as offences under some stringent laws like the UAPA.

The recent death of the 84-year-old Jesuit priest and activist Stan Swamy, an accused in the Bhima Koregaon case, while being in judicial custody, raised several questions on the use of draconian laws like the UAPA. Swamy was booked under various sections of the UAPA; there was no sedition charge against him. He had already spent nine months in jail, before his death on July 5, waiting for his trial to start. There are many others like Swamy, booked for sedition and anti-terror charges, waiting in jails for years awaiting trial.

Undeniably, state police have different experiences with sedition, owing to their different social concerns and history of crime and terrorism. The number of cases varies from state to state. According to the National Crime Records Bureau (NCRB), the Maoist-infested state of Chhattisgarh had just one case filed under Section 124A in 2019. Whereas Karnataka had 22 cases, Assam had 17 and Jammu and Kashmir 11.

Vishwaranjan, former director-general of police, Chhattisgarh, explained why there was no need to invoke too many sedition cases in the state. “There is no denying that the Maoist literature, speeches, actions were all seditious,” he said. “But until their claims were backed by seditious activity that could damage law and order, we arrested them under normal sections of the IPC.”

M. Mahender Reddy, director-general of police of Telangana, said sedition is used only against top Maoist cadres who use the ‘barrel of the gun’ to threaten the state. N.R. Wasan, former special director in CBI, said in his career spanning 36 years he never used sedition against any accused. “There were all kinds of cases under investigation, from insurgency to Naxalism, but I did not feel the need to use it,” he said.

There have been efforts by state governments to ensure judicious use of the anti-sedition law. In 2015, the home department of Maharashtra issued a circular asking police stations to issue guidelines to prevent the misuse of the law. The circular mentioned that words against politicians and government servants cannot be termed as sedition, obscenity or vulgarity does not fall under sedition and a legal opinion must be obtained in writing from a law officer of the district, giving reasons why the charges are being invoked.

Shishir Hiray, a special public prosecutor in Maharashtra, points out that there are many provisions to prevent unnecessary arrests which can be used to stop the misuse of laws like sedition. “For example, Section 41A of the CrPC has penal provisions that can be invoked against an investigating officer if he flouts the rules of arrest,” he said.

P.D.T. Achary, former secretary- general of the Lok Sabha, said Article 19(2) of the Constitution authorises the government to impose reasonable restrictions on the freedom of speech and expression. And, it is under this umbrella that sedition exists on the statute book to date. Achary, however, noted that the problem persists in the law which is arbitrary and unjustifiable at any stage. “The Supreme Court should strike it down now,” he said.

Parliamentarians have time and again argued about the number of sedition cases in the country under different governments. The method of calculation varies as in some FIRs Section 124A is not a primary offence but a secondary one. This is one of the reasons why figures of the NCRB on sedition cases are at odds with the numbers recently revealed by Article 14—a portal run by a group of lawyers, journalists and academics which has tracked sedition cases between January 1, 2010, and December 31, 2020. Their data showed a massive 96 per cent rise in cases since Narendra Modi came to power. The home ministry officials said they have started maintaining a separate database on sedition since 2014, unlike the UPA regime when all sedition cases were clubbed with IPC cases.

Lt General Shokin Chouhan, former chairman of the Ceasefire Monitoring Group in Nagaland, said: “More than numbers, the cause for disaffection toward any government needs to be addressed. Whether it is the Central or state government, lack of [good] governance breeds disaffection.”

Lubhyathi Rangarajan, a lawyer who heads the Article 14 project, said inherent in the meaning of sedition lies a stigma—it is desh droh (traitor) in several Indian languages. While the word sedition awaits a final decree on its fate, the silver lining is that it is never too late for the government to build the affection of people.