For a government that loves to parade its popular groundswell of support, the Indian State can be remarkably chicken-hearted when it comes to dealing with dissent. Its favoured tool is Sedition — referred to as ‘the prince among the political sections of the Indian Penal Code’ by India’s most high-profile sedition convict, Mahatma Gandhi. In his trial where he pleaded guilty to charges brought by the British government, Gandhi stated that “If one has no affection for a person or system, one should be free to give the fullest expression to his disaffection, so long as he does not contemplate, promote, or incite to violence”.
On the face of it, we should not even be having this discussion. A bare reading of Section 124A of the IPC, as well as repeated guidance from the Supreme Court (Kedar Nath vs State of Bihar, 1962, consistently followed), makes it amply clear that only a violent revolution against the government attracts the charge of sedition.
Yet, look at some of the instances where sedition law has been invoked recently:
On May 11, the Gujarat Police arrested the editor of a Gujarati news portal for his report about the Chief Minister likely to be replaced.
Three Kashmir journalists, including a photographer who uploaded photographs on social media, had cases registered against them in April.
An Assam MLA was arrested under the section for saying that quarantine centres were worse than detention centres meant for illegal immigrants, while a politician in Ludhiana was booked for putting up a Facebook post stating that there were no ventilators in the district.
These come close on the heels of an overdrive of sedition cases filed during the anti-CAA protests, most alarmingly, against parents and teachers of nine-year-olds who had performed in a school play; as well as several other youngsters who created art-work against, or expressed solidarity with fellow-protestors.
Last year, an FIR was filed against 49 civil society activists who wrote an open-letter to the Prime Minister against the spate of mob-lynching in the country. Earlier instances include a case against Amnesty International for organising a debate on Kashmir, and an actor who said that ‘Pakistan is not hell’.
None of these cases even remotely come within the ambit of sedition. In fact, data from the National Crime Records Bureau (NCRB) show that 2016 and 2017 had merely one conviction each for sedition, while in 2018, there were two.
So then why does the police pursue sedition cases almost willy-nilly? The answer lies in the now-familiar refrain: in India, the process is the punishment.
The offence of sedition, under law, is cognisable (a policeman can investigate and arrest without oversight of a magistrate) and non-bailable (you are not entitled to bail as a matter of right). So if a case is filed against you, the police has the power to arrest you. Under law, you are to be produced before a magistrate within 24 hours. The police inevitably blows the offence out of proportion, and seeks custody of the accused so that they can be investigated, and the magistrate inevitably grants such custody. The police now have 90 days to file a charge-sheet. While the accused is entitled to apply for bail, given the magnitude of the allegations and the police’s claims that evidence is still being unearthed, often bail is denied.
If a charge-sheet is not filed within 90 days, the accused is entitled to bail by default. If it is filed, the magistrate then scrutinises whether a case is made out under law. This three-month period of incarceration would be enough to drain the accused of financial resources (cost of engaging lawyers as well as professional revenue foregone), not to mention their spirit. Carrying a maximum sentence of imprisonment for life, the charge of sedition is one of the gravest.
At best, the charge is quashed, and the accused is acquitted. Else, there is a long-drawn trial that might drag on for years. On the other hand, the police is almost never made accountable for their actions.
It is almost ludicrous that these cases are still employed. Until the State is made accountable for frivolous cases, they will continue to be used as a tool for stifling dissent. Democracy will continue to be the real victim.
Abraham C Mathews is an advocate based in Delhi. Twitter: @ebbruz. Views are personal.
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