In May this year, the Supreme Court ordered a pause on the operation of the law of sedition in India, pending a review by the Union government of the efficacy and necessity of the provision.
The law of sedition has been contested for decades, with activists pointing out that the colonial provision has no place in a democratic country that ostensibly values freedom of speech and expression and where views critical of the government are par for the course. It had also been pointed out that sedition had been used to target civil society activists and trumped-up cases had often been foisted on anyone the government wished to persecute.
This had continued despite the Supreme Court ruling in 1962 that any conduct would amount to sedition only if it contained an incitement to violence or to overthrow the government through violent means.
For decades, the law of sedition was used wantonly, despite conviction rates always remaining low. This only proved that the prosecution did not care about the final outcome of a case, since to be accused of a serious crime is often punishment enough. A
criminal accusation by itself leads to many forms of unpleasant treatment; it involves arrest, harassment, loss of reputation, being subjected to interrogation, search and seizure of property, and the loss of livelihood.
All this happens much before any question of guilt or innocence even arises in court, and the process one is subjected to can be extremely damaging to any individual.
This is why the prospect of facing a criminal accusation is often enough to create a chilling effect on most individuals’ freedom of speech. If you could be subjected to all of the above for a social media post, chances are that you would not post what you wanted to say.
It is therefore quite right that the law of sedition is undergoing a review and has been kept in abeyance by the Supreme Court. This direction was welcomed by several quarters, and will probably provide relief to those who have been accused of sedition and continue to face the criminal process.
However, whether this ruling really makes a difference to those who need protection from a vengeful State, or from the misuse of the criminal justice process, is questionable. The law of sedition is but one in an array of special provisions that the State has that are liable to exactly the same kind of abuse as the law of sedition. In fact, several of these special laws are more stringent than sedition and provide for long periods of custody without trial, or reduce the prospect of bail to the accused without any charges being made in court. These special laws are also more popular with the State than sedition, though they do not get as much coverage.
The National Crime Records Bureau (NCRB) data on crimes presents a sobering picture on the use of sedition vis-à-vis similar special laws. In “Crimes against the State” section of the ‘Crime in India-2020’ report, sedition is one of the smallest heads of crime. Sedition accounts for 73 out of a total of 5,613 cases, whereas 796 are under the stringent Unlawful Activities (Prevention) Act, 1967.
Criminal law in India today has many different statutes which are worded to create convenient crimes. An allegation is easy to make under these vague provisions, since anything could ostensibly satisfy their requirements. These are very similar to the provision of sedition and are often used indiscriminately.
For example, the National Security Act, 1980, allows for the preventive detention of individuals if the government is satisfied that the person may act in a manner that is prejudicial to the “maintenance of public order”. No further clarity is afforded by the provision, and it can be used to detain a person preventively for three months, and to periodically extend the detention. The predecessor of this law was the controversial Maintenance of Internal Security Act, 1971, that was notoriously used to detain political dissidents and quell opposition, most notably during the Emergency.
Indeed, numerous State security laws and counter-terror laws are also routinely invoked in cases that cause political controversy and are used to harass anyone who criticises State policy or highlights a failure of the government. While the law of sedition has been scrutinised and debated, these special laws often operate unnoticed, and with devastating effect.
What is worse is the practice of several complaints being registered in different places against a single individual for a single incident. What results are multiple FIRs and multiple arrests by different agencies. Now, the person who is accused of the offence(s) needs to get bail as many times over as there are FIRs against them, and even a single complaint can be used to keep them in custody.
Further, often once a person has secured bail, we see the police registering a fresh FIR within a matter of hours under another special statute to re-arrest the person. These are not imagined situations, but actual incidents that continue even after the Supreme Court ordered pause on sedition law. In fact, the Supreme Court had to comment on this ‘vicious cycle’ while hearing a similar plea on July 18 and order relief in a case of multiple FIRs on the same alleged crime.
The use of criminal laws to intimidate and continuously harass individuals points to a much deeper malaise within the criminal justice system than just a question of a single law or provision. What we have witnessed is the use of special criminal laws as weapons to control criticism of the government or the policies of the State. This works by making the criminal justice process so unfair and cumbersome that merely entangling someone in it serves as a deterrent and silences them. Therefore, the ruling on sedition is the Supreme Court acknowledging the proverbial “tip of the iceberg” when it comes to the potential for misuse of criminal laws. An honest scrutiny of special criminal legislation is needed on similar lines as the pause on the sedition law.
(The writer is Assistant Professor of Law, National Law School of India University, Bengaluru)