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Supreme Court sedition interim order directional, not conclusive, it's just a ‘pause’

By Fr Cedric Prakash SJ* 
The ‘sedition’ law in India is repressive and regressive, archaic and obsolete, draconian in nature and blatantly violative of the freedoms guaranteed to every citizen of the country in the Constitution. It specifically goes against Articles 19 1 (A), 14 and 21 of the Constitution dealing with the Right to Equality, Freedom of Speech and Expression and Protection of Life and Personal Liberty. Framed under Section 124A of the Indian Penal Code (IPC), the sedition law states:
“Whoever, by words, either spoken or written, or by signs, or by visible representation, or otherwise, brings or attempts to bring into hatred or contempt, or excites or attempts to excite disaffection towards, the government established by law in India, shall be punished with imprisonment which may extend to three years, to which a fine may be added; or, with fine.”
This draconian law was first drafted in 1837 by the British historian and politician Thomas Macaulay. It was mysteriously deleted when the IPC was implemented in 1860. Sedition laws were enacted in 17th century England when MPs believed that only positive government beliefs should be allowed to exist, as negative opinions were harmful to the government and monarchy.
The British administration in India, were wary at that time of movements brewing to challenge their domination. So, in 1870, they felt the necessity for a separate section to deal with the offence, an amendment offered by Sir James Stephen which was inserted as Section 124A of the IPC. The law was obviously challenged by several thinking and eminent citizens of the country
May 11, 2022, was a historic day indeed for the Constitution of India and for “we the people”! In a landmark order, the Supreme Court put on hold Section 124A of the Indian Penal Code, known as the sedition law. The 152-year-old colonial era law, said the order, should be kept in abeyance till the Central Government reconsiders the provision.
The order was pronounced by a three-member bench comprising Chief Justice of India NV Ramana, Justice Surya Kant and Justice Hima Kohli while hearing a batch of petitions challenging the constitutional validity of the sedition offence.
The three-page order of the Supreme Court states among other things:
“This Court is cognizant of security interests and integrity of the State on one hand, and the civil liberties of citizens on the other. There is a requirement to balance both sets of considerations, which is a difficult exercise. The case of the petitioners is that this provision of law dates back to 1898, and pre-dates the Constitution itself, and is being misused”.
The Apex Court in its concluding directive says:
“8. In view of the clear stand taken by the Union of India, we deem it appropriate to pass the following order in the interest of justice: a. The interim stay granted in W.P.(Crl.) No.217/2021 along with W.P.(Crl.) No.216/2021 vide order dated 31.05.2021 shall continue to operate till further orders.
“b. We hope and expect that the State and Central Governments will restrain from registering any FIR, continuing any investigation or taking any coercive measures by invoking Section 124A of IPC while the aforesaid provision of law is under consideration.
“c. If any fresh case is registered under Section 124A of IPC, the affected parties are at liberty to approach the concerned Courts for appropriate relief. The Courts are requested to examine the reliefs sought, taking into account the present order passed as well as the clear stand taken by the Union of India.
“d. All pending trials, appeals and proceedings with respect to the charge framed under Section 124A of IPC be kept in abeyance. Adjudication with respect to other Sections, if any, could proceed if the Courts are of the opinion that no prejudice would be caused to the accused.
“e. In addition to the above, the Union of India shall be at liberty to issue the Directive as proposed and placed before us, to the State Governments/Union Territories to prevent any misuse of Section 124A of IPC. f. The above directions may continue till further orders are passed.
“9. List these petitions in the third week of July, 2022.”

"Article 14", an online portal joint effort between lawyers, journalists, and academics to address threats to and failures of justice and deficiencies in the legal system, tracks successes that can be built upon and discerns trends and patterns that require to be brought to the widest public attention. It takes its name from arguably the most important fundamental right conferred by the Constitution of India: "The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India."
On February 2, 2021 "Article 14" launched its sedition database; a count and analysis of all sedition cases since 2010, revealed:
  • 65% of nearly 11,000 individuals in 816 sedition cases since 2010 were implicated after 2014 when Modi took office. Among those charged with sedition: opposition politicians, students, journalists, authors and academics.
  • 96% of sedition cases filed against 405 Indians for criticising politicians and governments over the last decade were registered after 2014, with 149 accused of making “critical” and/or “derogatory” remarks against Modi, 144 against Uttar Pradesh (UP) chief minister Yogi Adityanath.
  • A 28% increase in the number of sedition cases filed each year between 2014 and 2020, Modi’s time in office, compared to the yearly average between 2010 and 2014, the second term of the United Progressive Alliance (UPA) administration.
Much of this increase is due to a surge in sedition cases after protest movements, such as those against the Citizenship Amendment Act (CAA), 2019 and the rape of a Dalit teen at Hathras in UP.
During the anti-CAA protests, 22 of 25 sedition cases involving 3,700 people were filed in BJP-ruled states. After the Pulwama attack, 26 of 27 sedition cases involving 42 persons were filed in BJP-ruled states.
Of the five states with the highest number of sedition cases, a majority were registered during the BJP’s time in power in four of them—Bihar, UP, Karnataka and Jharkhand.
In UP, 77% of 115 sedition cases since 2010 were registered over the last four years, since Yogi Adityanath became the chief minister. More than half of these were around issues of “nationalism”: against those who protested the CAA, for shouting “Hindustan Murdabad”, allegedly celebrating Pulwama attack and India’s loss in 2017 ICC Champions Trophy.
In Bihar, between 2010-2014, the majority of sedition cases related to Maoism and counterfeit currency. After 2014, 23% of sedition cases were against those who protested the CAA, against celebrities who spoke up against lynching and intolerance and those who allegedly raised “pro-Pakistan” slogans.
The data was startlingly clear enough: the Government particularly since 2014, had become vindicative and used(abused) the sedition law and other draconian laws very selectively to crush dissent and to throttle the voices of anyone who took a stand against it or criticised its anti-people policies. Thousands are actually still languishing in jails because of this law!
One of the petitioners, Major General Sudhir Vombatkere (retired), in an interview to NDTV said he turned to the court when the Constitution that he swore to protect was being challenged.
Said the General credited with stalling a 162-year-old colonial relic:
“Every soldier takes an oath to defend the Constitution, they defend the Constitution even at the risk of their lives. And the country's borders are defended by the Armed Forces in order that the people within the country can sleep safely and enjoy the freedoms and rights that the Constitution gives. That is the reason for my taking up this case.
“I had noticed that a lot of things go wrong. I believe if there is injustice in one place, there is injustice everywhere. Injustices have to be opposed; they have to be resisted. I took to activism as I believe there have been injustices by all governments, state and central, regardless of their political colour…
“There are 800 cases and 13,000 are in jail, all citizens of India, my brothers and sisters. Only in the last eight years, nearly 400 of those 800 cases were registered. It has always been used as a political tool, just that it is more in recent years.”

In a powerful statement welcoming the Supreme Court order, the pan-India ‘Peoples Union for Civil Liberties’(PUCL) states:
“The order of the Supreme Court is a significant landmark in the struggle against sedition law which began with the arrest of freedom fighters like Gandhi and Tilak in colonial times to the arrest and conviction for life of PUCL Vice President Binayak Sen, the conviction of PUCL UP office bearer and journalist Seema Azad, as well as the filing of cases against PUCL national secretary Sudha Bharadwaj and PUCL Jharkhand member the late Fr. Stan Swamy and many others under the draconian laws such as sedition and Unlawful Activities Prevention Act (UAPA).
“The use of this repressive provision led to the PUCL initiating a campaign to repeal the sedition law which garnered over 1,00,000 signatures. While the campaign did lead to the release of Binayak Sen, the petitions committee of the Rajya Sabha was also seized with the issue. But the law continued to be used by all governments to target their opponents…
"Much as the PUCL welcomes this order of the Supreme Court, it is also constrained to point out that inspite of this order, a larger number of human rights activists, journalists, Muslims, Dalits, Adivasis and students will continue to languish in jail for exercising their constitutional right to freedom of speech and expression”.

In the next couple of months, the Supreme Court’s major legal challenge is whether the 1962 judgement in Kedar Nath Singh v Union of India was correctly decided. Speech that is likely to provoke disruption of public order is considered sedition, according to the Kedar Nath Singh judgement, which affirmed the constitutional validity of Section 124A.
Sedition laws were enacted in 17th century England when MPs believed that only positive government beliefs should be allowed to exist
A seven-judge panel will have to assess if that verdict was correct, and whether a statute against sedition may be considered an exception to free speech. In the end, unless Parliament rescinds the sedition legislation, the court will have to decide the fundamental issue. Even if the provision is weakened or replaced with a new legislation, it must pass the constitutionality test before the court.
Writing an analytical op-ed in the "Indian Express" (May 12, 2022) ‘Supreme Court’s verdict on sedition is a small win’ Chitranshul Sinha says:
“This order appears to be a small win but left a lot to be desired. Also, its implementation at the ground level remains to be seen. Lessons should have been taken from the fact that police across the country continued filing FIRs under section 66A of the Information Technology Act, 2000 which was declared to be unconstitutional by the Supreme Court in 2015. The purported reason is that even though the provision was declared to be unconstitutional, it continued to remain on the statute book. The lack of awareness of local police is to blame here…
“Till the time safeguards are built to prevent misapplication of the UAPA, or even laws like the National Security Act, the law of sedition will keep rearing its head under different names despite the orders passed by the Supreme Court”.

In 1908, when Lokmanya Bal Gangadhar Tilak was being tried for sedition in the Bombay High Court, he courageously stated, “Swaraj is my birth right, and I shall have it.” Justice Davar, the presiding judge, then asked him if he had anything to say before the sentence was pronounced, he audaciously replied:
“All I wish to say is that in spite of the verdict of the jury, I maintain my innocence. There are higher powers that rule the destiny of men and nations. It may be the will of Providence that the cause I represent may prosper by suffering than by remaining free.”
These immortal and inspiring words of Tilak can be read even today; they are etched on a marble plaque outside Court Room 46 in the Bombay High Court. Tilak’s biographer NG Jog has described this historic moment profoundly:
“These words delivered on the spur of the moment have a spontaneous dignity and almost a Socratic sublimity. They breathe the spirit of dedication to freedom and of defiance against the might of the British Raj. And, they could have been uttered by only one man in India’s contemporary history – Bal Gangadhar Tilak.”
In the final analysis, one has to be painfully aware, that this recent interim order is directional but not conclusive. It is just a ‘pause’! Though a major break -through, which has seriously rattled the fascist Government which rules India today- the order is technically a temporary restraint.
This is not enough! The people of India must come out in top gear and demand that this draconian law be repealed totally, immediately and unconditionally. Joining Tilak and saying in one voice, “Swaraj is my birth right, and I shall have it!” The sedition law should go immediately!
---
*Human rights, reconciliation & peace activist/writer

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