CAA stir flares up sedition debate
The CAA aims to provide citizenship to non-Muslim refugees of Pakistan, Afghanistan and Bangladesh who have faced religious persecution. While protestors believe that the law is discriminatory and unconstitutional, the Bharatiya Janta Party-led central government has defended the law as correcting a “historical injustice”.
A 22-year-old trans-masculine student of Mumbai raising slogans at a queer Pride gathering, and a widowed mother of an 11-year old student participating in a school play in Bidar, Karnataka, are only two of the at least 194 sedition charges that have been made since the Citizenship Amendment Act (CAA) was passed two months ago on December 11. This exceeds the number of sedition cases filed in 2016, 2017, and 2018, as per data from the National Crime Records Bureau (NCRB). According to the Crime in India report released last year, a total of 156 cases were filed in the three years taken together.
The CAA aims to provide citizenship to non-Muslim refugees of Pakistan, Afghanistan and Bangladesh who have faced religious persecution. While protestors believe that the law is discriminatory and unconstitutional, the Bharatiya Janta Party-led central government has defended the law as correcting a “historical injustice”. Speaking in both houses of the Parliament on February 6, prime minister Narendra Modi also accused Opposition parties of spreading misinformation about the law.
However, since the law was passed, anti-CAA protests have broken out all over the country, from small towns like Latehar in Jharkhand and Azamgarh in Uttar Pradesh to metros like Delhi and Mumbai. Several marches in favour of the law have also been organised.
To be sure, the number of those charged with sedition is high, as many of the First Information Reports (FIR) also charge unknown persons. For instance, in Mumbai, a trans-masculine student, Kris Chudawala, was charged with sedition on February 3, but the FIR also charges 50 others, who are unnamed. In Jharkhand, 3007 people were booked for sedition, among other charges— of whom only seven were named — after an anti-CAA rally in Dhanbad on January 7. The sedition charge was, however, dropped earlier this month. On December 13, 60 persons who were protesting against the CAA in Lucknow were booked for sedition for reportedly raising anti-state slogans; of them only 16 were named. The sedition charge was later dropped against all 60.
“Registering FIRs with unnamed persons is a classic legal strategy that the police use,” explained Anushka Singh, assistant professor at the School of Law, Governance and Citizenship at Dr BR Ambedkar University in Delhi.
“It creates the possibility of implicating people by putting their names in backdated FIRs. It creates fear in people that anybody could be implicated later.”
The evolution of the law
Historically, the law has been used to cull political dissent. Several freedom fighters, including Mahatma Gandhi, Jawaharlal Nehru, Bal Gangadhar Tilak and even Vinayak Damodar Savarkar were sent to prison under this charge during the Freedom movement.
However, the section is not easy to prove in the court of law. As per the NCRB report, of the 90 cases of sedition tried across the country in 2018 (which includes follow-ons from the previous two years), only two led to a conviction. By the end of the year, 77 cases were still pending trial. Last year, Marumalarchi Dravida Munnetra Kazhagam (MDMK) chief Vaiko was convicted of sedition by a special court and sentenced to one year’s imprisonment.
The case pertained to a speech that he had made in 2009, while releasing his book, I Accuse, which drew connections between the Sri Lankan civil war and the Indian Army. He had suggested that the Indian government was responsible for the killing of Tamils in the civil war in Sri Lanka. However, the Madras high court stayed the sentence.
It’s a tough law to nail down because the Supreme Court restricted its ambit in 1962. Introduced by the British to the Indian Penal Code in the 1870s, Section 124 A 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 for life, to which fine may be added, or with imprisonment which may extend to three years, to which fine may be added, or with fine.”
However, in 1950, the Punjab high court declared the law void, “as it provided an unwarranted restriction on the freedom of speech and expression”. Eight years later, the Allahabad high court also stated that Section 124-A violated freedom of speech guaranteed by Article 19 of the Constitution and was, therefore, void. In 1962, the Supreme Court held the law to be constitutional. A five-judge bench, in Kedar Nath Singh v. State of Bihar, ruled that though Section 124-A imposed restrictions on the fundamental freedom of speech and expression, they were in the interest of public order. Significantly, the court limited the application of the law to acts that incited public disorder or violence. Everything else fell outside its ambit.
But the law continues to be used indiscriminately, feels Geeta Seshu, a member of the Free Speech Collective, which keeps track of violations of free speech in an online resource. “[Sedition law] continues to be used for students who raise slogans and even people who merely like a Facebook post or even a cartoon that is seen as offensive or objectionable. At 71 years, our democracy should be mature enough to hear slogans or speeches that we may not always agree with. Instead, we see the shrinkage of space to voice dissenting opinions and ideas.”
Part of the reason for its misuse could also be that it is a difficult law to interpret. “In the 1962 judgment, the term “disaffection” used in the provision was qualified. It said that for an act to be counted as disaffection, it should have a tendency to incitement to violence or unlawful activity. Most of these cases which are registered today are not in tune with what the Supreme Court has laid down in its pronouncement. Though one should also bear in mind that because the Supreme Court didn’t explain what the word ‘tendency’ could mean, the scope for its misuse remained,” Singh said.
A student, a mother, a headmistress
In the past two months, two cases in particular have caught the national imagination, drawing attention to the law again. One involves a headmistress and the mother of an 11-year old, both of whom were involved in staging a play that dealt with the controversial law, in a school in Bidar, Karnataka.
The matter first came to light after a certain Nileesh Rakshayal filed a complaint on January 26, after a video clip of a play enacted by Class 4, 5 and 6 students of Shaheen Primary and High school, expressing their dissent against CAA, went viral. The police faced flak for questioning students at the school, which they have visited at least five times during the course of their investigation into the matter. “It is unlikely that a nine-year-old child will say such things without being taught. So we were trying to find out who told them to say such things,” a police officer who did not want to be named said.
Nazbunnisa whose daughter was part of the play, and Fareeda Begum, the headmistress, were arrested on January 30 under IPC sections 504 (provocation to break public peace), 505(2) (statement which causes fear or alarm to public), 153 A (promoting disharmony), and 124 A. They were granted bail by a district court on February 14, after spending over two weeks in jail.
The school management, represented by Thouseef Madikeri, the CEO of Shaheen Group that runs the school, has also been charged with sedition; the anticipatory bail hearing is on February 17.
“It is unfortunate that the headmistress and the mother of one of our student continue to languish in jail. We fully intend to legally defend ourselves as we have done no wrong. A phrase uttered by a 10-11 year old child was inadvertent and unintentional. But why slap a sedition case against us?” asked Madikeri.
The other case involves a trans-masculine student of the Tata Institute of Social Sciences, who was charged with sedition for purportedly raising slogans that promised to fulfil arrested Jawaharlal Nehru University student Sharjeel Imam’s dream, during the Pride gathering in Mumbai held on February 1.
A video of Imam stating that Assam should be “cut off” from the rest of India went viral last month. Following this, an FIR was lodged on January 25 in Guwahati crime branch police station, listing sedition, promoting enmity between different groups and doing acts prejudicial to maintenance of harmony as well national integration. Imam faces similar charges in Manipur, Arunachal Pradesh, Uttar Pradesh and Delhi as well.
On February 2, former Bharatiya Janata Party parliamentarian Kirit Somaiya tweeted a video from the Mumbai Pride, and asked the police to take action against “anti-national demonstrations/slogans”. He filed a complaint on February 3, and has been tweeting about the students, referring to them as “Urban naxalites”.
Queer Azadi Mumbai, organisers of the gathering, released a letter dissociating the event from the sloganeering the following day itself.
“These are young students who were simply raising slogans for justice, who have been named and targeted by powerful ministers...,” said Vihaan, an alumnus, speaking at a press conference organised in Delhi by members of the trans, intersex, and gender nonconforming community.
Granting interim relief from arrest, the Bombay high court on February 11 noted that Mumbai police had failed to comply with its guidelines that require the police to seek written opinion of the government’s law officer before invoking sedition charges. “Does this (sedition case) satisfy the twin requirements of intention and tendency to create public disorder, as contemplated under section 124 A of the Indian Penal Code,” justice SK Shinde asked the public prosecutor, and added, “Somebody else has proclaimed the ideology, she has merely supported it.” The court directed Chudawala to report to the investigating officer and submit her mobile phone.
Vast numbers around the country
According to Arun Gurtu, former director general of police, Madhya Pradesh, “National Security Act or sedition charges should be invoked only when there is a real threat to society or the country from the person accused. Many times these charges don’t stand in the court of law. Sedition, in particular, should be invoked only when there is evidence recorded electronically and there is a motive to be proved in regard with the charges.”
In many of these protests, sedition charges were dropped. In Dhanbad, a delegation of protestors met chief minister Hemant Soren asking that the charge of sedition against seven accused, who were part of an anti-CAA protest on January 7, be dropped. The police told HT that anti-Centre slogans were raised during the protest, prompting them to register cases against seven named persons Haji Jameer Arif, Md Sajid, Md Saif Sazzad, Ali Akbar, Md Saddam, Md Maulana Gulam Navi and Md Naushad — and 3,000 unknown people.
They were booked under a raft of sections of the IPC, including 143 (unlawful assembly), 148 (rioting and armed with deadly weapon), 186 (obstructing a public servant), 290 (public nuisance), 336 (endangering life of others), 153 A (promoting disharmony) and 124 A.
Following the CM’s intervention, sedition has been dropped from the list of charges. “I have received a copy of the FIR but I fail to understand why nine different sections of the IPC have been invoked against us,” said Arif, 38, who is one of the accused.
In Assam, the police lodged a sedition case at Chandmari police station in Guwahati on December 13, against Akhil Gogoi, Manas Konwar, Dharjya Konwar and Bittu Sonowal, leaders of the Krishak Mukti Sangram Samiti, a peasants’ rights body. All four are under arrest and the National Investigation Agency has taken up the case.
On February 5, UP’s Azamgarh police registered a case against a group of protestors, several of whom were women, in Bilariaganj town. Superintendent of police (SP) Triveni Singh said an FIR was lodged against 35 named and over 100 unidentified persons under 124 A, besides 15 other sections of the IPC. On the intervening night of February 5 and 6, protestors and police clashed at the site, in which at least one woman was seriously injured in stone pelting. Singh said that an FIR was lodged after the protestors raised anti-national slogans and pelted stones on the police. Nineteen people have been arrested.
Former Supreme Court judge AK Patnaik said that the sedition law cannot be invoked in the anti-CAA protests, “as long as they are not violent or calling for revolt against the state.” He said that the law should be reviewed “to decide whether it is necessary or not”. “The legislature must have a fresh look at it and if they think it should be retained, then whether it should be retained in the current form or not.”
But the Centre is clear that sedition law will remain in the books. In a reply to the Rajya Sabha in 2019, the Union home ministry stated, “There is no proposal to scrap the sedition law. There is a need to retain the provision to effectively combat anti-national, secessionist and terrorist elements.”
(With inputs from Bedanti Saran, Utpal Parashar, Rohit Singh, Ranjan)