The row at JNU: What the law says, how it has been applied in the past, and what has Delhi Police omitted to do
Venkatesh Nayak | February 18, 2016 | New Delhi
Jawaharlal Nehru University (JNU), where I spent a decade studying and researching history, is in the news all over again. I remember, in those days, a leading English language national daily would advertise itself as being an indispensable part of the breakfast served at JNU every morning. Today efforts are being made to tarnish the legacy and the image of this reputable university whose graduates are part of the rank and file of many a political party and also occupy the upper echelons of the public administration. While some have called for changing its name while others have called for its shut down. More specifically, a handful of students have been arrested by the Delhi Police on charges of 'sedition'. The Police are reported to be conducting searches across the campus entering student's hostels in what is primarily a residential university. The purpose of this email alert is not to conduct an investigation or a trial into the events that transpired on February 9, 2016 and the reactions thereafter – that is the job of the police and the courts, which unfortunately, some segments of the media have usurped, pronouncing their opinion on the supposed 'guilt' of the accused even before the law takes its own course. The crucial questions which many concerned citizens and segments of the more restrained media are asking is – whether the reaction to the incidents that occurred on the evening of February 9 is disproportionate and whether students carrying out a peaceful procession raising slogans that did not conform to the “politico-ideological beliefs of a prevalent variety” should be treated as 'criminals' to be prosecuted for “sedition” and “anti-national” activities. Frankly, a country that rightfully takes immense pride in its six-decade long democratic tradition must repeal all laws that criminalise free speech and expression exceeding the reasonable restrictions imposed on that fundamental right in Article 19(2) of the constitution.
Why are the FIR and the details of arrests made, not officially placed in the public domain?
The media reported that the Delhi Police registered a First Information Report (FIR) at the Vasant Kunj North Police Station on February 11, a day after the incident. The Delhi Police has a dedicated page on its official website for the proactive disclosure of FIRs registered under its jurisdiction. This transparency measure was initiated under the directions of the Hon'ble Delhi High Court in 2010 in the matter of Court on its own Motion through Mr. Ajay Chaudhary vs State [2011 CriLJ 1347] . However the FIR relating to the incidents at JNU could not be located on this website despite our best efforts. Under the regime of transparency established by The Right to Information Act, 2005 (RTI Act) media reports are the only source of information regarding the contents of the FIR registered by the Delhi Police.
In 2011, the Delhi High Court had ruled that FIRs containing 'sensitive matters' may be exempted from proactive disclosure as an exception. But the concerned Deputy Commissioner of Police must issue a speaking order as to why such an FIR will not be disclosed and send a copy of the same to the Area Magistrate. The Delhi Police has not publicly stated its reasons for keeping the 'JNU FIR' confidential despite the fact that the issue has become a matter of widespread debate not only in New Delhi but also across the country and elsewhere. In addition to the directions of the Hon'ble Court, the Delhi Police is under a statutory duty to volunteer reasons for non-disclosure of the FIR under Section 4(1)(c) of the RTI Act. The result of maintaining this confidentiality is that many 'facts' as reported to the police leading to the registration of the FIR two days after the incidents at JNU are not clear, especially whether any student was actually named the 'accused' in relation to the allegations or not. Public access to this kind of information is crucial to determine whether the actions of the Delhi Police in arresting the students and also demanding their custody (instead of rendering them to judicial custody) are justified and proportional or not.
Second, the Delhi Police is not complying with the law of the land in another manner. In 2009 Parliament amended the arrest-related provisions of the Code of Criminal Procedure, 1973 (CrPC) requiring every State Police Headquarters to prepare a database of persons arrested by the police and make it accessible to the public. Section 41C of the CrPC which became operational in 2010 makes it mandatory for the Delhi Police to create a database containing details such as the name and contact details of every person arrested, the name and designation of the police officer making the arrest, the nature of offences for which the arrest is being made and publicise them for the reference of the people. This transparency measure gives statutory cover to the directions issued by the Hon'ble Supreme Court of India in the matter of D. K. Basu vs. State of West Bengal [AIR 1997 SC 610] to curb the abuse of the powers given to the police to take away the liberties of an individual by arresting him/her. However, the Delhi Police has not created and publicised such a database of arrestees till date, nor has it reported the arrest of the students at JNU through its press releases. Somehow respect for and obedience to the law seems to be the responsibility of ordinary citizens only while law enforcement agencies can go scot free.
Later this week, CHRI plans to release a status report on compliance across States and the UT of Delhi with the statutory obligation of transparency of information about persons arrested or detained by the police. With the exception of Kerala no other State or UT surveyed by CHRI has complied in full with the statutory requirement of making information about police arrests and detentions transparent.
Third, Section 124A of the Indian Penal Code, 1860 (IPC) which describes actions that are to be treated as 'sedition' prescribes two kinds of punishment - life imprisonment with or without fine or imprisonment up to 3 years with or without fine. What punishment may be given under which circumstances is for the courts to decide on the basis of the facts and circumstances of each case. It is not clear whether the Delhi Police believes that the accused in the JNU case will attract the life term or the shorter prison term of 3 years. This is important because under Section 41(1)(b) of the CrPC an individual may be arrested for an offence which entails punishment of less than 7 years without a warrant from the Magistrate, only if the police officer has reason to believe that such person has committed the offence and that such arrest is necessary to:
i) prevent such person from committing further offence; or
ii) for proper investigation of the offence; or
(iii) to prevent such person from destroying or tampering with the evidence; or
(iv) to prevent such person from offering inducements to witnesses of the crime in order to dissuade them from deposing before the courts; or
v) for ensuring such person's presence before a court whenever required.
In all such cases of offences where the maximum punishment is 7 years or less, the police officer making the arrest must record reasons for the arrest in writing. In all cases where the maximum prison term attracted is more than 7 years or life term or capital punishment, there is no duty to record reasons for arresting a person without warrant. This change has been made to the law on arrest in 2009- effective since November 2010, in order to prevent the abuse of the power of arrest by the police. The abuse of powers of arrest results in the unreasonable curtailment of the constitutionally guaranteed freedoms of such a person. So unless, the Delhi Police is aiming to get the accused students in JNU put away for life, they must record reasons for making the arrest and publicise this also along with other details of arrest according to Section 41C of the CrPC.
The law on sedition in India
Several experts have commented through the print and electronic media as to whether the alleged actions for which the students of JNU have been arrested amount to sedition. As said before, this email alert is not about passing a judgement on the facts of the present case about which there is very little information coming from official sources. The purpose of this email alert is provide the reader with a snapshot view of how Courts have ruled on charges of 'sedition' and under what kinds of circumstances. The development of the law on 'sedition' under the British Raj in India is well portrayed in a 2011 study published by Alternative Law Forum, Bengaluru. So I am not going into those details.
Being a law brought in towards the end of the 19th century, by the British rulers to curb down dissent and all calls for freedom and civil and other kinds of disobedience towards the colonial government, several notable freedom fighters were punished under this law for doing exactly the same. The list of such persons includes notables such as, Lokamanya Bal Gangadhar Tilak, Annie Beasant, Mahatma Gandhi, CV Rajgopalachari and Vinayak Damodar Savarkar. The list is too long and includes several prominent leaders of the freedom struggle who later became members of the Constituent Assembly which drafted the Constitution. They resolutely decidied against including 'sedition' as a restriction on free speech and expression in the fundamental rights chapter.
Section 124A of the Indian Penal Code, 1860 which deals with that offence mentions 'sedition' only in the margin note while the formulation explains what kinds of actions will be treated as an offence. It reads as follows:
"Whoever, by words, either spoken or written, or by signs, or by visible representation, or otherwise, brings or attempts to bring intl 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 up to three years, to which fine may be added or with fine."
The law provides for an illustration as to what is meant by 'disaffection' (it includes disloyalty and all feelings of enmity) and two exceptions, namely, where comments made expressing disapproval of any measure of or action taken by the Government in order to get them changed lawfully without exciting or attempting to excite hatred, contempt or disaffection. Such actions will not be punishable under Section 124A.
Who will grant sanction for prosecution for 'sedition' in the JNU case?
Unlike a large number of other offences where prosecution may be launched soon after the collection of sufficient evidence by the police, offences like 'sedition' require an additional step to be taken prior to prosecution. The prosecution of any person for 'sedition' requires sanction of the Central or the State Government under Section 196(1)(a) of the CrPC. This is a statutory safeguard to ensure that people are not falsely prosecuted or prosecuted on the basis of inadequate evidence. Such actions amount to waste of resources and time and cause harassment of the accused who actually may be innocent.
Although Delhi has an elected Legislature and government of its own, it is strictly speaking a Union Territory under the control of the Central Government. In the event the Delhi Police completes its investigation and decides to seek prosecution of the 'accused' it will be interesting to watch as to which government will be approached to grant sanction. Delhi Police comes under the Central Government led by the Bharatiya Janata Party through the Lieutenant Governor of Delhi. The Directorate of Prosecution is under the State Government controlled by the Aam Admi Party (AAP). Except for the Central Bureau of Investigation's (CBI) Prosecution Wing, the Central Government does not have any other prosecuting agency of its own. As the JNU incidents are being investigated by the Delhi Police, will the CBI may be called on to conduct the prosecution? Whether they will agree to prosecute a case they have not investigated is a moot question. If the Central Government accords sanction for prosecution, eventually, will the AAP Government conduct the prosecution or defy those orders? By the looks of it there will more controversy in the days to come.
A snapshot view of the 'sedition' jurisprudence in India
An examination of the jurisprudence on what constitutes an act of 'sedition' and which actions do not so qualify despite the State making such claims reveals that there are several strict tests and standards for identifying the offence of 'sedition'. Given below is a snapshot view of the manner in which the high courts and the supreme court have dealt with the issue in appeal.
Kamal Krishna Sircar vs Emperor [AIR 1935 Cal 636]
In 1934, one Mr. Kamal Krishna Sircar in Bengal was convicted on charges of sedition by a trial court for making a speech and tabling a resolution, at an event organised by the Bengal Youth League, condemning orders issued by the colonial Government banning the Communist Party and several other organisations in Punjab and Bombay. He also supported the Bolshevik form of government established in Russia over the capitalistic form of government in British India which had the tacit support of organisations like the Indian National Congress. He urged the people to propagate Bolshevism which attracted the disapproval of the trying Magistrate. A two-Judge Bench of the Calcutta High Court threw out the conviction. Writing the opinion for the Bench, Lort-Williams, J said:
"It is really absurd to say that speeches of this kind amount to sedition. If such were the case, then every argument against the present form of government and in favour of some other form of government might be alleged to lead to hatred of the Government, and it might be suggested that such ideas brought the Government into contempt. To suggest some other form of government is not necessarily to bring the present Government into hatred or contempt.
In my opinion it is not wise to institute prosecutions against the makers of speeches of this kind. The effect of it is to give the impression that the Government are desirous of taking the kind of steps which, we understand, have been taken in countries like Germany and Italy, where the right of free speech has practically disappeared. So far as we know, that is not the present position in India. In any case the present speech is a long way from coming within the provisions of Section 124-A, Penal Code. The conviction and sentence passed on the appellant are, accordingly, set aside and he is acquitted."
Although in scores of other cases, courts under the British regime convicted several freedom fighters for various things they uttered or wrote, this is an interesting case where the limits of the 'sedition' law were recognised by a High Court.
A.E. Rama Kurup, Editor "Malayali" vs the United State of Travancore, Cochin [AIR 1950 Ker 83]
In this case from 1949, after independence but prior to the enactment of the Constitution, a Full Bench of the Kerala High Court examined the matter of an order of cancellation of license to publish a newspaper owned by the Petitioner. The Court found some of the published content seditious as follows:
"... Article 6 tries to establish that the Ministry is communalistic in its activities and establishes that it is an off-shoot of an organisation of self-centred communalists. The Ministry is characterised as imbecile and impecunious whose continuance in office is on a Pathivarom basis, that is, on the agreement that the yield would be shared equally between the Ministry and those who support the Ministry. Adverting to the timber deal, which is conspicuously referred to in another place, the paper asks what right has E. John Kuruvilla of the T.K. Ministry to enter into any mutual bargain about it. It impugns the Ministry as dishonest and attributes corruption to it. We have no hesitation in holding that items 5 and 6 are seditious.
In Item 10 the paper asks whether the Ministry will not resign. Whatever be the anxiety of the paper to precipitate the collapse of the Ministry it cannot claim to be offering honest and legitimate criticism of Government when it asserts that communal partiality reigns supreme in appointments to Government service and charges the Chief Minister of lending support to communal leaders in their attempts to enrich themselves by deceiving Government. The paper also points out that two at least of the six Ministers aim more for the interest of their own community and charges them with partiality for appointing two persons to superior posts in Government service. In spirit and tone, Items 11 and 13 are as bad as item 10. In Item 11 the Ministry is charged with high treason and accuses it of bringing shame to democracy. It is said to be inefficient, its proceedings are said to be irregular, communally biased and lacking in principles. It excites the people to white beat and exhorts them not to allow the Cabinet, which is bent on ruining the State by treason and faithlessness, to continue any longer. In item 12 the paper attacks the Ministry for overlooking the claims of Miss Samuel for the Surgeon General's place. The act is said to be steeped in injustice and urges is as a ground for terminating the Ministry. This supersession is said to be wickedness and villainy of the 'Dussasana' type. The Ministry is said to be unreliable, indifferent and opposed to public opinion and acts in complete disregard of justice and duty. It declaims that "this Government must either role with justice and truth" or it must surely die, implying that its acts are otherwise. We feel no hesitation in holding that Items 10, 11 and 13 are seditious." [emphasis supplied]
As we will see in later cases, particularly in Kedarnath Singh discussed below, the judiciary drew a clear distinction between any kind of criticism of the people who were in government and expressing views against the State which alone were to be treated as 'seditious'.
Romesh Thappar vs The State of Madras [AIR 1950 SC 214]
Within 4 months of the Constitution of India coming into force, the newly established Supreme Court of India ruled on the issue of sedition in two cases decided on the same day. In the matter of Romesh Thappar, a Constitution Bench of the Apex Court held by a majority of 4:1 that Section 9(1-A) of the Madras Maintenance of Public Order Act, 1949 violated the freedom of speech and expression guaranteed under Article 19(1)(a) of the Constitution. On the issue of 'sedition' Patanjali Sastri, J, stated as follows:
"Deletion of the word "sedition" from the draft article 13(2)," [of the Draft Constitution] "therefore, shows that criticism of Government exciting disaffection or bad feelings towards it is not to be regarded as a justifying ground for restricting the freedom of expression and of the press, unless it is such as to undermine the security of or tend to overthrow the State. ... very narrow and stringent limits have been set to permissible legislative abridgment of the right of free speech and expression, and this was doubtless due to the realisation that freedom of speech and of the press lay at the foundation of all democratic organisations, for without free political discussion no public education, so essential for the proper functioning of the processes of popular government, is possible. A freedom of such amplitude might involve risk of abuse. We are therefore of opinion that unless a law restricting freedom of speech and expression is directed solely against the undermining of the security of the State or the overthrow of it, such law cannot fall within the reservation under clause (2) of article 19, although the restrictions which it seeks to impose may have been conceived generally in the interests of public order. It follows that section 9(1-A) which authorises imposition of restrictions for the wider purpose of securing public safety or the maintenance of public order falls outside the scope of authorised restrictions under clause (2), and is therefore void and unconstitutional." [emphasis supplied]
On the same date, in the matter of Brij Bhushan & Anr. vs The State of Delhi [AIR 1950 SC 129] the Apex Court struck down an order issued by the Punjab Government under the East Punjab Public Safety Act, 1949 which required the petitioner to submit all materials relating to Pakistan including cartoons which he intended to publish for vetting. The Constitution Bench of the Court held by a majority of 4:1 that such pre-publication censorship was not permitted under the reasonable restrictions imposed on the right to free speech and expression which included the freedom of the press.
The Apex Court also held in these cases that the offence of 'sedition' is an offence against public tranquility and order also although Section 124A is to be found in the Chapter on Offences against the State and sits in the category of other offences such as 'treason' and 'waging war against the State'. In response to these two judgements the Central Government proceeded to amend Article 19(2) to insert "public order, decency and morality" as grounds for restricting the exercise of free speech and expression through the very first amendment to the Constitution. The amendment which contained several other grounds for restricting free speech and expression was made applicable retrospectively.
Later, in 1955, Section 124A was amended by the same Government to replace transportation for life (outside of India's mainland during the British rule) to "life imprisonment" while retaining the 3 year jail term and fine for less serious cases. Although Parliamentary records show that Pt. Jawaharlal Nehru spoke against the retention of 'sedition' as an offence on the penal code, his government actually enhanced the punishment stipulated for this offence. Political parties across the diverse ideological spectrum have used 'sedition' to curb dissenting voices when they were in power and continue to so do.
Kedarnath Singh vs State of Bihar [AIR 1962 SC 955]
In this case a 5-member Constitution Bench of the Supreme Court of India unanimously upheld the constitutional validity of Section 124A, IPC. The Court was hearing four appeals - three of conviction of the Petitioners of sedition committed in Bihar and Uttar Pradesh and a fourth against the judgement of a Full Bench of the Allahabad High Court holding Section 124A ultra vires of the Constitution vis-a-vis Article 19. After examining the jurisprudence regarding 'sedition' that had developed until then, the Court ruled as follows:
"37. It has not been contended before us that if a speech or a writing excites people to violence or have the tendency to create public disorder, it would not come within the definition of 'sedition'. What has been contended is that a person who makes a very strong speech or uses very vigorous words in a writing directed to a very strong criticism of measures of Government or acts of public officials, might also come within the ambit of the penal section. But, in our opinion, such words written or spoke would be outside the scope of the section. In this connection, it is pertinent to observe that the security of the State, which depends upon the maintenance of law and order is the very basic consideration upon which legislation, with view to punishing offences against the State, is undertaken. Such a legislation has, on the one hand, fully to protect and guarantee the freedom of speech and expression, which is the sine qua non of a democratic form of Government that our Constitution has established. This Court, as the custodian and guarantor of the fundamental rights of the citizens, has the duty cast upon it of striking down any law which unduly restricts the freedom of speech and expression with which we are concerned in this case. But the freedom has to be guarded against becoming a licence for vilification and condemnation of the Government established by law, in words, which incite violence or have the tendency to create public disorder. A citizen has a right to say or write whatever he likes about the Government, or its measures, by way of criticism or comment, so long as he does not incite people to violence against the Government established by law or with the intention of creating public disorder. The Court, has, therefore, the duty cast upon it of drawing a clear line of demarcation between the ambit of a citizen's fundamental right guaranteed under Art. 19(1)(a) of the Constitution and the power of the legislature to impose reasonable restrictions on that guaranteed right in the interest of, inter alia, security of the State and public order." [emphasis supplied]
The Court noted the difference in the understanding of the ingredients of the offences covered in Section 124A, IPC. In the matter of Niharendu Dutt Majumdar v. The King Emperor  F.C.R. 38, the Federal Court noted as follows:
"Public disorder, or the reasonable anticipation or likelihood of public disorder, is thus the gist of the offence. The acts or words complained of must either incite to disorder or must be such as to satisfy reasonable men that that is their intention or tendency." [emphasis supplied]
However the Judicial Committee of the Privy Council disagreed with this construction of the wording of Section 124A in the matter of Emperor vs Sadashiv Bhalerao, [ILR (1947) IndAp 89]. It held that the expression "to excite disaffection" did not include "excite disorder". In other words, the bar was much lower to determine what was "seditious". Merely causing or intention to cause disaffection or hatred amongst the people was adequate, it does not have to be shown by the Prosecution that the accused's intention was to cause public disorder. The Apex Court preferred this second interpretation.
While commentators have cited excerpts from this judgement to show that the accusations against the JNU students do not amount to sedition, what they have not pointed out is that Kedarnath lost the appeal before the Apex Court. The last para is indicative of the Court's opinion that the focus of the Petition was more about challenging the constitutionality of Section1 24A rather than showing how the utterances of the Petitioner were not seditious. So the Court did not go into a detailed examination of those utterances. In all humility and with the deepest respect to the wisdom of the Apex Court it must be said that the 'seditious' utterances of the Petitioner cited in the judgement 'today 'reads more like the rants of a sympathiser of communist ideology and practice particularly targetting politicians of the Indian National Congress Party for all the socio-economic evils that India was then facing. The utterances cited in the judgement do not even call for a revolutionary overthrow of the Government.
P Hemalatha vs The Govt. of Andhra Pradesh [AIR 1976 AP 375]
In this case a Full Bench of the Andhra Pradesh High Court ruled against the Petitioner and held that several articles published in the magazine of which she was editor were 'seditious'. Regarding the contents of the publication the Court observed as follows:
"89. In the first poem the exhortation was to break open all the godowns and distribute the grains contained therein, cutting into pieces the bastards who obstruct them and run away. The utterances have a tendency to create disorder or disturbance of public peace by resort to violence. In the second one also, the rickshaw driver says that the solution for the evils of suffering from poverty was to cut the throat of the Sait, the owner of the rikshaw, with all vengeance and for his joy and the reference to the police as bastards and 'Yama'" (God of Death) "do certainly create disaffection towards the Government who are responsible for the maintenance of law and order.
90. In the third one, the principles professed and practised by naxalites were commended and the people were exhorted to sharpen their axes and sickles to cut down the pests and the leeches on the lines taught by naxalite leaders like Santhal of Naxalbury, Charu Babu, Comrade Satyam, Panigrahi and Bhaskar who do not believe in the existence and functioning of Government established by law. And the last one contained this :
"We do not rest till we overthrow with arms, the Government which does not come down with the strike."
91. These writings incite and advocate the overthrow of the Government with arms by violence and by unlawful means. By their very nature they involve danger to the public peace and to the security of the State. They have the pernicious tendency or intention of creating public disorder or disturbance of public tranquillity and 'law and order'. The very security of the State depends upon the maintenance of law and order.
92. These writings are not expressing any disapprobation of the measures of the Government with a view to obtain their alteration by lawful means without exciting or attempting to excite hatred, contempt or disaffection. Now are they intended to express and disapprobation of the administrative action or other action of the Government without exciting or attempting to excite hatred, contempt or disaffection, towards the Government established by law in India.
93. They proceed on the assumption that the Government failed in the discharge of their duties. They excite disloyalty and all feelings of enmity. They bring or attempt to bring into hatred and contempt the Government. It may be noted in this connection that even truth, if there is one in these writings, is not a justification for such seditious utterances.
94. So far as the expression of grievances is concerned, there may not be anything objectionable. But the means that were required to be adopted for getting those grievances redressed are certainly unlawful and illegal bringing about public disorder, disturbing public tranquillity, having a tendency to affect the security of the State and the Government established by law. They in our opinion do certainly constitute an offence punishable under Section 124-A of the I.P.C." [emphasis supplied]
Although the case itself was launched prior to the dark days of the Emergency, the influence of the overall atmosphere of restriction on fundamental liberties during the Emergency when this judgement was delivered is unmistakable from its content.
P Alavi vs State of Kerala [1982 KLJ 93]
In this case a single Judge Bench held that slogans criticising Parliament or the judicial setup would not amount to 'sedition'. The Court clearly identified the ingredients of the offence of 'sedition' as follows:
"9. ... I am not able to understand how these sections could be utilised assuming what is stated in Ext. P1 is true. Criticising the present judicial set up or functioning of the Parliament or Legislative Assemblies cannot be considered as bringing into hatred or contempt or exciting or attempting to excite disaffection towards the Government established by law. Nor are the slogans alleged to have been shouted by the petitioners capable of inciting any class or community of persons to commit any offence. I might add that seldom a day has passed in the State for the last three decades when such or similar slogans have not been shouted in one or other part of the State.
10. The scope of section 124-A of the IPC has been restricted by the Supreme Court to cases in which the speech, writing or other activity of the accused was prejudicial to public order or public security, as it is only in such cases that it could be said that the attack was directed against the Government established by law. The approach to the question whether any action brings into hatred or contempt or excites disaffection towards the government should be in the following way: First, the true meaning of the words, the innuendo they convey and the covert meaning, if any, they have, have to be gathered. Secondly, their probable or natural effect has to be seen. In other words, whether they are calculated to produce the result, i.e. hatred, contempt or disaffection towards the Government. Thirdly, if they do, the intention of the author of the words to produce that result has to be ascertained." [emphasis supplied]
Sukhdev Singh vs Union Territory [(1986) 90 (2) PLR 109]
In this case a Full Bench of the Punjab and Haryana High Court while denying bail to the accused explained what may be construed as 'sedition' under Section 124A, IPC. The Court observed:
" 13. The article attributed to the petitioner intends to eulogise Bhindranwale and extoll the role of the band of men who, pursuing his cult, occupied the Golden Temple by force and hoisted the flag of Khalistan. In this way, 'cession' and 'secession' is hailed. Further, the article suggests to the Sikhs to treat the forcible occupiers of the Golden Temple as their true representatives and to prepare themselves for the attainment of Khalistan. Again cession and secession is propagated. It carries oblique references to the virtues of the cult of violence and alienates one section of people from another. It adversely affects the harmony amongst different sections of the people. And to achieve these objectives, violence is indirectly propagated - attaining of laughter at the costs of others weeping. The article has also hailed the feat of Beant Singh, the killer of the Prime Minister of India, Mrs. Indira Gandhi, and has termed that act which has avenged the insult to the Sikhs. The article plainly is a blended conglomeration of a variety of suggestive sinister thoughts coverable under the expressions 'terrorist act' and 'disruptive activity' as known to the Act. An ordinary newspaper reading man would read the article only in such a manner and that is what is expected of us as Judges. Instantly, no -intellectual exercise is needed or to hair-split, or shatter and explain away the context or its contents. No scepticism need enter our minds to laughingly say that no sensible man could have taken the article seriously. It has to be viewed on the basis of common sense. Thus, I am constrained to hold that the language and tenor of the article is not innocent and cannot be lightly taken. Thus I am of the confirmed view, as at presently advised, that the article undoubtedly advocates, advises or incites the commission of terrorist acts or acts preparatory to terrorist acts punishable under Section 3(3) of the Act and disruptive activities or acts preparatory to disruptive activities falling within the ambit of Section 4(2) of the Act, if not more. It is true that the article does not directly exhort its readers to do anything but the style of writing is positively suggestive recommending action on the path chosen by Bhindranwale and his followers." [emphasis supplied]
The Bench rejected the bail application of the accused by a 2:1 majority holding that the views expressed by him were 'seditious' indeed.
S Rangarajan Etc. vs P. Jagjivan Ram [1989 SCC (2) 574]
Although this case was not about sedition as much as it was about censoring a Tamil feature film - "Ore Oru Gramatthile", the Apex Court made a reference to the Kamal Krishna Sircar case from 1935 decided by the Calcutta High Court where it was held that merely calling for a revolution would not amount to 'sedition'. The Apex Court also made a reference to a Full Bench judgement of the Bombay High Court from 1950 in the matter of Manohar Damodar Patil and Anr. vs The Government of Bombay [AIR 1950 Bom 210] where the issue of the freedom of the press was discussed and it was held that calling for a violent revolution would not amount to a violation of the Indian Press (Emergency Powers) Act,1931 although the offence of 'sedition' was not discussed in that judgement. The purpose of citing these judgement is to show how these rulings contrasted with the attitude of the judiciary towards 'seditious' utterances and publications during the dark days of the Emergency between 1975-76 as evidenced by the P. Hemalatha case.
Balwant Singh & Anr. vs State of Punjab [AIR 1995 SC 1785]
The Appellants were government servants who were convicted for the offence of 'sedition' because they shouted slogans in front of a crowd at a public ceinam hall on the day the Late Prime Minister Mrs. Indira Gandhi was assassinated. The Apex Court set aside the convictions holding as follows:
"7. ...A plain reading of the above Section" [Section 124A] "would show that its application would be attracted only when the accused brings or attempts to bring into hatred or contempt or excites or attempts to excite disaffection towards the Government established by law in India, by words either written or spoken or visible signs or representations etc. Keeping in view the prosecution evidence that the slogans as noticed above were raised a couple of times only by the appellant and that neither the slogans evoked a response from any other person of the Sikh community or reaction from people of other communities, we find it difficult to hold that upon the raising of such casual slogans, a couple of times without any other act whatsoever the charge of sedition can be founded. It is not the prosecution case that the appellants were either leading a procession or were otherwise raising the slogans with the intention to incite people to create disorder or that the slogans in fact created any law and order problem. It does not appear to us that the police should have attached much significance to the casual slogans raised by two appellants, a couple of times and read to much into them. The prosecution has admitted that no disturbance, whatsoever, was caused by the raising of the slogans by the appellants and that inspite of the fact that the appellants raised the slogans a couple of times, the people, in general, were unaffected and carried on with their normal activities. The casual raising of the slogans, once or twice by two individuals alone cannot be said to be aimed at exciting or attempt to excite hatred or disaffection towards the Government as established by law in India. Section 124A IPC, would in the facts and circumstances of the case have no application whatsoever and would not be attracted to the facts and circumstances of the case."
Bilal Ahmed Kaloo vs State of Andhra Pradesh [AIR 1997 SC 3483]
In this case the Petitioner, a Kashmiri was hauled up on charges of 'terrorism' under the now defunct TADA law in Hyderabad. Later he was acquitted of all charges of terrorism by the designated court but convicted of offences under the IPC including Section 124A. Acquitting the Petitioner of these charges also, the Apex Court observed as follows:
"6. The decisive ingredient for establishing the offence of Sedition under Section 124-A, IPC is the doing of certain acts which would bring the Government established by law in India into hatred or contempt etc. In this case, there is not even a suggestion that appellant did anything as against the Government of India or any other Government of the State. The charge framed against the appellant contains no averment that appellant did anything as against the Government. ...
8. As the charge framed against the appellant is totally bereft of the crucial allegation that appellant did anything with reference to the Government it is not possible to sustain the conviction of the appellant under Section 124-A, IPC."
Nazir Khan & Ors. vs State of Delhi [AIR 2003 SC 4427]
While commuting the death sentences of a group of Pakistani nationals convicted of offences of terrorism, the Apex Court ruled on the nature of offence of 'sedition' as follows:
"44. Section 124A deals with 'Sedition', Sedition is a crime against society nearly allied to that of treason, and it frequently precedes treason by a short interval. Sedition in itself is a comprehensive term, and it embraces all those practices, whether by word, deed, or writing, which are calculated to disturb the tranquility of the State, and lead ignorant persons to endeavour to subvert the Government and laws of the country. The objects of sedition generally are to induce discontent and insurrection, and stir up opposition to the Government, and bring the administration of justice into contempt; and the very tendency of sedition is to incite the people to insurrection and rebellion. "Sedition has been described as disloyalty in action, and the law considers as sedition all those practices which have for their object to excite discontent or dissatisfaction, to create public disturbance, or to lead to civil war; to bring into hatred or contempt the Sovereign or the Government, the laws or constitutions of the realm, and generally all endeavours to promote public disorder." [emphasis supplied]
While the Apex Court recognised the test for 'sedition' was very strict, it actually expanded the list of actions that may be labelled "seditious" if they amounted to bringing hatred or contempt not only the Government, but also the Constitution, all laws and all endeavours to promote public disorder. Treating 'sedition' as a "crime against society" which is a social organisation much larger and quite distinct from that of the "State" without much deliberation regarding the reasons is also quite disturbing.
Gurjatinder Pal Singh vs State of Punjab [2009 (3) RCR (Criminal) 224]
In this case a single Judge Bench of the Punjab and Haryana High Court quashed the FIR charging the Petitioners with 'sedition' and acts of terrorism simply because they responded to some anti-India and pro-Khalistani slogans raised at a public meeting. The Court observed:
"6. It is clear from the abovesaid observations that comments criticizing Government action would fall within the ambit of freedom of speech and expression but when the words raising or spoken have pernicious tendency or when there is intention of creating public disorder or disturbance of law and order, steps are required to be taken in the interest of public order. Taking into consideration the allegation against the petitioner in this case, to have responded to the slogans raised by Simranjit Singh Mann and Dr. Jagjit Singh Chauhan, is neither an act of sedition nor it would fall within the mischief of Section 153B which makes imputations, assertions which are prejudicial to national-integration as punishable. This Court in Crl. Misc. titled Simranjit Singh Mann v. State of Punjab has quashed the FIR under Section 124 A of the IPC against Simranjit Singh Mann which was registered on the allegations that he had raised slogans of anti-nation "Khalistan Zindabad instigating common people and Dilwan Singh, human bomb who assassinated the Chief Minister."
Sanskar Marathe vs State of Maharashtra & Ors. [2015 CriLJ 3561]
In this notorious case of the victimisation of cartoonist Aseem Trivedi, a Division Bench of the Bombay High Court laid down the following guidelines for the police while invoking Section 124A, IPC against any person:
"16. We do not find it necessary to dwell on the subject any further, as the learned Advocate General submitted that the State Government in Home Department will issue the following guidelines in the form of a Circular to all the Police personnel:
"(1) In view of the felt need to issue certain guidelines to be followed by Police while invoking Section 124A IPC, the following preconditions must be kept in mind whilst applying the same:
(i) The words, signs or representations must bring the Government (Central or State) into hatred or contempt or must cause or attempt to cause disaffection, enmity or disloyalty to the Government and the words/signs/representation must also be an incitement to violence or must be intended or tend to create public disorder or a reasonable apprehension of public disorder;
(ii) Words, signs or representations against politicians or public servants by themselves do not fall in this category unless the words/signs/representations show them as representative of the Government;
(iii) Comments expressing disapproval or criticism of the Government with a view to obtaining a change of government by lawful means without any of the above are not seditious under Section 124A;
(iv) Obscenity or vulgarity by itself should not be taken into account as a factor or consideration for deciding whether a case falls within the purview of Section 124A of IPC, for they are covered under other sections of law;
(v) A legal opinion in writing which gives reasons addressing the aforesaid must be obtained from Law Officer of the District followed within two weeks by a legal opinion in writing from Public Prosecutor of the State."
Clearly, the High Court has reverted to the position taken by the Federal Court in the Niharendu Dutt Majumder case where the impact of the utterances or publication on public order would become material considerations while accusing a person of committing 'sedition'.
Arun Jaitey vs State of U.P. [2016 (92) AllCC 352]
In this case, decided less than four months ago, a single Judge Bench of the Allahabad High Court threw out a charge of 'sedition' against the Petitioner who is also the Finance Minister under the Central Government. A Judicial Magistrate took suo motu cognizance of an article written by the Petitioner containing critical view of a judgement of the Supreme Court of India issued in the National Judicial Commission Act case. While quashing the complaint case the Court observed as follows:
"15. ... Now for words written or spoken to fall within the meaning of sedition, the words would have to be held to have the effect of subverting the Government by violent means or tend to bring about public disorder or the use of violence or incitement to violence. The words or action in order to fall within the meaning of sedition, it was held by the Constitution Bench, would have to travel or stand raised to a degree of revolution against the Government in order to fall within the mischief of the penal provision. At the same time, the Supreme Court held that words however, strongly worded or words which used strong terms with respect to the measures or acts of the Government, strong speech, strong criticism would clearly be outside the scope of the section. It was held that a citizen had a right to say or write whatever he likes about the Government or its measures by way of criticism or comments so long as he did not incite people to resort to violence against the Government established by law or with the intention of creating public disorder. In fact, it was upon these considerations that their Lordships held that if the words or actions in question had not intended to or had not been employed to create disturbance of law and order and yet been restricted from being aired or voiced then such an interpretation would render the provisions of Section 124A unconstitutional in view of Article 19.
16. From the above exposition of the law by the Constitution Bench, it is clear that the section aims at rendering penal only such activity which is intended to or which would have a tendency to create disorder or disturbance of public peace. In order for the words written or spoken to fall within the ambit of section 124A, they would necessarily have to be of a category which would qualify as having a 'pernicious tendency' of creating public disorder or disturbance of law and order. Only then would the law step in to prevent such activity.
17. The contents of the article written by the applicant can by no stretch of imagination be said to be intended to create public disorder or be designed or aimed at exciting the public against a Government established by law or an organ of the State. The article merely seeks to voice the opinion and the view of the author of the need to strike a balance between the functioning of two important pillars of the country. It is surely not a call to arms.
18. For the aforesaid reasons, this Court is of the firm opinion that none of the ingredients essential for invoking the provisions of Sections 124A or 505 of the Penal Code stood attracted to the article in question. The Magistrate has committed a manifest illegality in forming an opinion that an offence under the above provisions stood prima facie committed." [emphasis supplied]
Readers may find more case law on 'sedition' that is not covered here in other databases. This email alert is also to encourage readers to look up the academic literature available on this issue to engage in an informed debate.
Much will be said and done in the days to come about the incidents at JNU. At the time of writing this email alert, another FIR is reported to have been filed against academics who held a presser at the Press Club recently. Some of them have been arrested on charges of 'sedition'. Again, the Delhi Police has not placed in the public domain details of this second FIR and the arrests made under it. It is not clear whether the actions of these "accused" will actually amount to 'sedition' either. It is important for all segments of society to discuss and debate the issues involved in these incidents with reference to the laws of the land and the manner in which they have been applied by courts. Emotional responses have their place, no doubt, but will only hinder an objective appreciation of the facts of these latest controversies and the penal laws that may or may not be applicable. The citizenry will have to show whether it is capable of a dispassionate discussion based on material facts and the applicable laws or will transient emotions and political ideologies be allowed to ride rough shod over the "rule of law" which is an attribute of the basic structure of the Indian Constitution.
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