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Sedition Law Challenge: The Supreme Court’s Treatment Of Civil Liberties Does Not Inspire Confidence — A Law Professor Explains

Demonstrators take part in a candlelight march as they protest against filing sedition case on people protesting against CAA in Bengaluru on 4 Feb 2020. (ANI Photo)

Chief Justice N.V. Ramana has made strong observations about how the sedition law is being misused to curtail free speech, but the Supreme Court is yet to strike down the colonial-era provision that successive governments have used to silence and intimidate citizens. A conviction rate of 3.3% till 2019 goes to show that Section 124-A of the Indian Penal Code is a tool of harassment. 

A study by Article 14 revealed that 96% of the sedition cases filed over the last decade for criticizing political leaders and governments were registered against 405 Indians after the Narendra Modi government first came to power in 2014. 

In 1962, in Kedar Nath Singh versus State of Bihar, the Supreme Court restricted the use of sedition law but did not strike it down. In 2021, there are seven petitions challenging it. The petitioners include four journalists, a constitutional law professor, a retired army general, and a former union minister. 

We spoke with Anuj Bhuwania, a professor of law and anthropology at the O.P. Jindal Global University, and the author of Courting the People: Public Interest Litigation in Post-Emergency India, who explained why he isn’t getting his hopes up over the Supreme Court striking down the sedition law, and there is little in its treatment of civil liberties since Independence that inspires confidence. 

The Supreme Court read down the sedition law in Kedar Nath versus but did not strike it down in 1962. Could you explain? 

In its interpretation, a five-judge bench of the Supreme Court uses words that are not in the provision, limiting its application to instances where there was an actual threat of violence. Reading down is how the court amends a provision to retain its constitutionality. The problem is that when you read down a provision, how do you communicate that to the Indian police who actually implement the law. You’ll see many arrests, very few convictions (3.3%).

But this is also a general problem that we have in India — the police invoke provisions that are not applicable to the facts of the case. The police use sedition for pre-trial arrest and not for conviction. There are rare exceptions like the Kanhaiya Kumar case where there may even be a trial. Getting a court to strike down sedition on constitutionality is not going to be easy. It would take a seven-judge bench to strike it down. That is relatively rare. 

Some people argue that if you do away with sedition, the authorities will make more frequent use of more draconian laws like UAPA and NSA.

But that already happens. In the case of the Manipur journalist, they arrested him under the NSA. That is not a valid argument. You do away with whatever you can. In the state’s arsenal of 50 repressive laws, if you have one less, that is good. There has been an escalation in the last seven odd years. You can blame the court for not striking it down. What on earth is it keeping it for? The BJP government has specifically committed to strengthening such a law. During the 2019 election campaign, the then Home Minister promised to make the sedition law more strict. There is a currently ongoing process led by the Home Ministry to revisit India’s criminal laws. I wouldn’t put it past them to make it more stringent and make it worse. But we’ll cross that bridge when we come to it. 

But why doesn’t the SC strike it down? It’s been read down once. The Supreme Court keeps admonishing the use of the law. There are seven petitions challenging it.

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There could be 100 petitions, but that doesn’t make it prima facie unconstitutional. There has definitely been a clamour for it, but it has been there for a long time. You are right in asking — what’s stopping them? But we have all kinds of laws that are constitutionally dubious. When we as lawyers say X law is unconstitutional, that is our view.  We can say it from our understanding of the Constitution. Our view is not binding on anyone. But what is important is whether the Supreme Court says it. And the Supreme Court rarely says it, especially in the last few years. 

But why? It seems like an easy thing to strike down. 

I have written elsewhere about the so-called rights revolution in India. The Supreme Court has never really been interested in civil liberties, at least not since the 1970s. It has upheld worse laws like TADA – Terrorist and Disruptive Activities (Prevention) Act, POTA – The Prevention of Terrorism Act, 2002, and MCOCA – The Maharashtra Control of Organised Crime Act, 1999. It has never really stuck up for civil liberties in the last four decades. To expect the Supreme Court to suddenly become a great saviour of civil liberties does not fit into any immediate trajectory in its recent history. 

To expect the Supreme Court to suddenly become a great saviour of civil liberties does not fit into any immediate trajectory in its recent history.

READ: Erendro Leichombam On His Convictions, Family And Speaking Truth To Power

The Supreme Court struck down Section 377 (decriminalizing gay sex)  of the IPC, and Section 66A IT Act (the Shreya Singhal case – upholding free speech). 

It did that. And Section 497 (IPC – decriminalizing adultery) and Triple Talaq (declaring it unconstitutional). But these were low-hanging fruit. It is few and far between. And the ways in which the petitions in the 377 and Triple Talaq cases came up before the court were dubious at best. We have this idea that the Supreme Court has become some major protector of rights after the Emergency. The lowest point in the history of the Supreme Court was the Emergency when they upheld MISA — Maintenance of Internal Security Act — Mrs. Gandhi’s draconian statute, and went on to even justify the Emergency. After that, it is said that the court did an about-turn, and there was a change in its approach towards liberty etcetera. But that is not actually the case. When in 1977, a new government came to power, it actually got rid of MISA. In 1980, when Mrs. Gandhi came to power, she immediately got the NSA (National Security Act), a different version of the same law. The same law under which the Manipuri reporter was arrested recently. The NSA was immediately challenged and it was heard by the same judges who were part of the Bench that upheld MISA. It was a very neat opportunity for them to undo the legacy of MISA, the infamy of 1976, but they didn’t do that. They actually upheld it unanimously. They have since upheld every such statute. But there is an idea we still have of the expansion of rights since then.  The Supreme Court has since read everything into the Right to Life (Article 21) except what is literally there — life and personal liberty. 

We started seeing the delegitimization of rights in Mrs. Gandhi’s time from 1967 onwards to 1977, this propaganda that she and her cabinet led of the idea of fundamental rights somehow being bourgeois and un-Indian, and that we should be talking about directive principles, development, and social justice, which should be given priority over individual rights. Since 1977, the court has been primarily interested in expanding the notion of the Right of Life in the direction of socio-economic rights in a loose manner, while it has completely lost interest in the idea of fundamental individual liberties, which is what this particular Article was intended for. 

It was a very neat opportunity for them to undo the legacy of MISA, the infamy of 1976, but they didn’t do that.

And now?

What we have now is a very truncated notion of civil liberties. Judgments like Shreya Singhal are rare exceptions in the history of our rights jurisprudence. The person who wrote the Emergency judgment, and who upheld the NSA, was the same person who became the role model of the Indian judiciary — Justice P.N. Bhagwati, the father of Public Interest Litigation (PIL). He gave a famous judgment almost paralleling what the Aadhar bench said about feeding people rather than talking about individual rights. What we currently have is the argument shared by all branches of the Indian state and much of civil society of the inapplicability of rights to the context of India. Till four decades ago, individual rights were curtailed in the name of socialism. That legacy was never undone. But now, it is a more culturalist argument, of it being alien to Indian culture. 

What we have now is a very truncated notion of civil liberties.

READ: Akhil Gogoi On Freedom, Family And Transforming His Constituency

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Do we, the people, care about any of this?

Nobody really cares about it. Why do you think there is such limited attention from a small minority that is concerned about civil liberties? Why do civil liberties never reach the traction that they do? Why don’t we have an organization like the ACLU -American Civil Liberties Union? There is a deep-seated suspicion of the idea of rights. This is deeply embedded in the current regime but also has a long history. In fact, I would say it is in the design of the Constitution itself. That famous expression by Constituent Assembly member Somnath Lahiri that Indian fundamental rights have been designed from the point of view of a police constable. (Jawaharlal) Nehru, (BR) Ambedkar, (Sardar) Patel are supposed to be the good guys. They were not really interested in the culture of civil rights and civil liberties while drafting the Indian Constitution. The Preventive Detention Act (1950) was passed immediately after the new Constitution came into force, and stayed for 20 years, after which MISA came into place. The political culture around civil liberties never really existed in India. We look at the question of civil liberties purely through the narrow lens of our politics. 

We look at the question of civil liberties purely through the narrrow lens of our politics.

What about organizations like the PUCL – People’s Union for Civil Liberties and HRLN – Human Rights Law Network?

There are of course remarkable organizations like PUCL, PUDR – People’s Union for Democratic Rights, and APCLC – Andhra Pradesh Civil Liberties Committee, which have been active for a long time in India. But they are unfortunately very poorly resourced and dependent on the bravery of individual volunteers. Nothing institutionalized like ACLU, which had the wherewithal to fight Trump’s anti-civil liberties agenda and did so relentlessly. That’s why it could have the gall to issue that antagonistic ad in The New York Times days after Trump was elected. Besides, it also had an infamously non-partisan approach to civil liberties, the like of which we have never had in India.

The impression that people have of the Supreme Court is the apex court expanding the scope of fundamental rights, and the place one goes to get justice against a repressive state.

There is a phenomenon called right without remedies that we increasingly see here. We now seemingly have all the rights imaginable. Even the rivers have rights. Can you go to court and enforce any of those rights? There has been an extrapolation of rights of all kinds, but it only means something if you enforce it. The court has been at best half-hearted about enforcing it. They have read the most radical principles of environmental law into our law. They have read all kinds of UN documents into our law. But you can’t get any of these enforced. Enunciation is cheap, enforcement is hard. There is a proliferation of the language of rights, without relief. The most extreme example was the Kashmir communication shutdown verdict last year when the Supreme Court went on about the greatness of freedom of expression but then says that the bureaucrats will decide (about when to impose an Internet ban).

Enunciation is cheap, enforcement is hard.

The current Chief Justice — N.V. Ramana — has made some strong observations, questioning the use of sedition. Surely, he will strike it down.

It does mean something to make such observations. Judges do it to have a signaling effect. If he wants to strike it down, he can do it. But sedition has become so polarised a question that this government is not going to stand back. There is too much riding on it now. Anyway, the proof of the pudding is in the eating. 

Does the number of petitions make a difference?

The number of petitions in this day and age does not matter. There are so many petitions challenging the CAA (Citizenship Amendment Act), and some of them are really well drafted. Many of these sedition petitions are filed by people who are not affected — there is no urgency. It is one thing if Kanhaiya Kumar as an accused goes to court, it is another thing if you and I do. The link with impact is broken. In any case, it comes down to the seriousness of the Chief Justice. If he is serious about it, he can do it. Or he can just talk about it, and make us feel good.

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It comes down to the seriousness of the Chief Justice.

The Supreme Court justices must read the news, and see how the law is being misused at present. Where is the sense of urgency? 

You are right. But this is a country with a lot going on every day. There are plenty of terrible laws. Why haven’t they struck down the Bihar Prohibition Act (with draconian provisions to curb the use of alcohol)? In sheer numbers, it affects far more people than sedition. Of course symbolically, and for what it has represented in the past, there is no worse law than sedition. To have the kind of ideas that you have mentioned about Indian judges is frankly naive. That is certainly not what they have been doing for the last 40-45 years. It is great that Chief Justice Ramana is there. He has given us a breather. Let us see what he can do. To strike down sedition will take some doing. Let’s hope he does it. I am not very hopeful.

READ: Devangana Kalita & Natasha Narwal On Speaking Truth To Power

ALSO READ: A Court Judgment For The Country And The Future, Says Asif Iqbal Tanha After Release From Tihar

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