Lawmakers, police seem to have amnesia about the Supreme Court’s clear 2016 ruling on the British era law
Something seems amiss with those dealing with law and its enforcement. And Karnataka appears to be setting new standards.
In the last few weeks, Karnataka has gained notoriety for filing cases of sedition against an illiterate single mother, her teacher colleague, an indiscreet teenager and questioning by the police of even minor middle school children as part of the investigation into the “contentious” dialogues of a school play.
The cases have gained national importance since the comments and sloganeering against the changes in the Citizenship law have led to protests across the country. But what comes as a surprise - and it does not apply only to Karnataka - is that the law of sedition has become “the instrument of harassment” for the authorities.
This is despite the fact that a division bench of the Supreme Court, consisting of Justice Dipak Misra and Justice Uday Umesh Lalit, had given a ruling in 2016 in the wake of similar cases being filed with neither the police nor the lower judiciary looking into the judicial aspects of Section 124A of the Indian Penal Code (IPC).
In a specific order passed on 05 September that year, the bench had said that the officer of the rank of a Director General of Police (DGP) or the Commissioner of Police should certify that the seditious act should either lead to the incitement of violence or have the tendency or the intention to create public disorder.
The emphasis comes in the last part of the sentence: “before any FIR is filed or any arrest is made on the charges of sedition against any individual.”
Strangely, in neither the Bidar case nor the Amulya Leona Noronha case, does the police appear to have applied its mind. At least, this is what is striking after a cursory reading of the order of the Supreme Court on a petition filed by Common Cause and represented by senior advocate Prashant Bhushan.
IPC 124A defines sedition as -
“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 estab¬lished 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.
Explanation 1 - The expression “disaffection” includes disloyalty and all feelings of enmity.
Explanation 2 - Comments expressing disapprobation of the meas¬ures of the Government with a view to obtain their alteration by lawful means, without exciting or attempting to excite hatred, contempt or disaffection, do not constitute an offence under this section.
Explanation 3 - Comments expressing disapprobation of the admin¬istrative or other action of the Government without exciting or attempting to excite hatred, contempt or disaffection, do not constitute an offence under this section.”
As per the National Crime Records Bureau’s (NCRB) 2017 report, sedition cases filed all over India amounted to 51. Of these, Assam is highest at 19, closely followed by Haryana at 13 and then by Tamil Nadu at three. Rajasthan, Uttar Pradesh, Uttarakhand and West Bengal had one case each. None of the other states, including Karnataka, had filed any sedition cases in that year. This is the latest available NCRB data.
Let us first have a look at the two cases.
The Bidar police acted swiftly on a complaint filed by an activist that one of the dialogues in a play, staged at an annual school day, by primary and middle school students related to “slippering the old man who comes and asks for the birth certificates of our dead parents and grandparents.” The activist did not blame the children but their elders and teachers for influencing them to utter those dialogues.
The police registered the complaint of sedition because “abusive words were used against a Constitutional authority.”
Soon, the teachers were questioned and the illiterate single mother of the child who uttered those words in the play and the teacher guiding the children in the play, were questioned, arrested and remanded to judicial custody. They were released on bail.
The school remained in the news because the policemen questioned the children within the school premises for not one but four consecutive days.
But the trauma was not confined to just the students in school. The girl who had acted in the play and whose mother was put in prison had a different level of trauma when she had to live alone. Her neighbours provided her shelter for a few days.
Amulya Leona Noronha, 18, was suo motu charged with sedition after she was whisked away by the police from an anti-CAA rally at the Freedom Park in Bengaluru. She had raised a slogan “Pakistan Zindabad” followed by “Hindustan Zindabad.”
Her sloganeering made even the leader of the All India Majlis-e-Ittehadul Muslimeen (AIMIM) Asaduddin Owaisi forget the evening namaz and run and attempt to snatch the microphone from her hands to prevent any further “indiscretion” as one of the students described her actions. Amulya was remanded to judicial custody, initially, but is currently under police custody.
The explanation to Amulya's sloganeering was found in a February 16 post on her Facebook page. Clearly, discretion is not part of her valour.
Her post on 16 February 2020 at 8.29 pm reads:
Whichever country it is - zindabad to all countries.
You teach the children that nation is it's soil. We children are telling you - nation means it is its people. All people should get their basic facilities. All of them should be able to avail their fundamental rights. Governments should take care of the people of these countries. Zindabad to everyone who serve the people.
I dont become a part of a different nation just because I say zindabad to that nation. As per law, I am an Indian citizen. It is my duty to respect my nation and work for the people of the country. I will do that. Let us see what these RSS Chaddis will do.
The Sanghis will get annoyed by this. Start your series of comments. What I have to say I will say.” (sic)
She has also claimed in a video interview that she was only mouthing what she had been provided by a large team that did a lot of research.
Reports say that the Special Investigation Team is questioning her on all these issues. It is obvious that the questioning would be tough because she has already been branded as someone with Naxal links by chief minister BS Yediyurappa himself.
The young Amulya came into prominence during the anti CAA protests as a feisty speaker. But the fall out of her sloganeering was directly felt by her father in Koppa, Chikkamagaluru. He was questioned by some people who even recorded a video saying that he would not provide bail to get her out of the prison.
The Apex court on Common Cause petition said: “Having heard Mr Prashant Bhushan, learned counsel for the petitioners, we are of the considered opinion that the authorities while dealing with the offences under Section 124A of the Indian Penal Code shall be guided by the principles laid down by the Constitution Bench in Kedar Nath Singh vs. State of Bihar [1962 (Suppl.) 3 SCR 769].”
Kedar Nath Singh, a leader of one faction of the Communist Party, while addressing a public meeting at Barauni in Bihar, started his speech by stating: “Today the dogs of the CID are loitering round Barauni. Many official dogs are sitting even in this meeting.”
The five-member Constitutional bench ruled that there was Constitutional validity to 124A but distinguished between what causes sedition and what does not.
The Kedar Nath Singh case has two parts, says BT Venkatesh, advocate for the school employees in the Bidar case and for Amulya.
The first part refers to anyone who speaks in a manner which brings “disaffection to the nation-state of the government established by law. And the second part has three exceptions. Disapprobation is not sedition because it is protected under Article 19 (1) (a) of the Constitution (freedom of speech and expression).
If everyone says the Citizen Amendment Act (CAA) is bad, can everyone be prosecuted for sedition? We are not saying you go. We are saying you have done something wrong. So withdraw it. You are my Prime Minister,” explained Venkatesh.
“Merely making a statement that I shall do this or that does not amount to sedition. It is necessary to see the context in which a statement was made in the school play. And what is the overall message in the play. Nowhere is the play against the country. Disapproval, according to Supreme Court judgements, does not amount to sedition,’’ he added.
Venkatesh quotes the example of the Balwant Singh case who, a few hours after the assassination of Indira Gandhi on 31 October 1984, shouted slogans like “Khalistan Zindabad.”
“The Supreme Court verdict in Balwant Singh’s case also did not find it seditious because there was no effort to cause disaffection or cause any revolt. Whether it is the Bidar case or Amulya case, there cannot be any ground of charging them with sedition,” argued Venkatesh.
Not exactly. The office of the DGP has a Law Section which regularly monitors verdicts of the Supreme Court and High Courts. And the Law Section Circulars are also regularly sent to operational heads like the Superintendents of Police who may not get to know the developments in the courts of law.
But a retired police official, who spoke on condition of anonymity, said: “There is a tendency of policemen or even officers to take the stand that there is a provision in the IPC. Let us register it for now and investigate. Why get into a problem with the bosses, meaning both administratively and political. They will not see if there is a prima facie case or not.”
So do political bosses give orders to policemen at the district or police station level?
“Not directly. They largely go by signals. The message is loud and clear. They have to demonstrate that they are favourable to the powers that be. There may be some direct hints. This is a ham-handed manner of get things done,” said another official on condition of anonymity.
But a few officials do concede that the courts could also ask tough questions like some High Court judges have in recent times.
In fact, the 2016 order of the Supreme Court also refers to what the Courts should do.
The bench of Justice Misra and Justice Lalit also said:
“b. Issue an appropriate writ directing the Learned Magistrate to state in the order taking cognizance certifying that the “seditious act” either lead to the incitement of violence or had the tendency or the intention to create public disorder in cases where a private complaint alleging sedition is made before the Learned Magistrate.
c. Issue an appropriate writ directing for a review of pending cases of sedition in various courts to produce an order from the DG or Commissioner of Police, as the case may be, certifying that the “seditious act” either lead to the incitement of violence or had the tendency or the intention to create public disorder in cases.”
So does all of this amount to contempt?
“Yes, indeed. We are looking at all these options of whether to go to the High Court or the Supreme Court,” said Venkatesh.
In retrospect, it appears that the state which continues to boast of legal luminaries lost its sense of respect for, not any other court but the highest court of the land, the Supreme Court of India.
And Karnataka is a state which has produced a Chief Justice of India called Justice MN Venkatachalaiah, who taught the police of the country the concept of human rights.
But then it appears that to get back those rights, some people will have to go through the process of going to prison, court, appeal for bail and then do the rounds, invariably, of the higher courts before the case ends in acquittal or dismissal.
The wheels of justice, as the cliché goes, move slowly, but much more slowly because the charge is that of sedition.