India’s Sedition Law Needs to Be Buried

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India’s Sedition Law Needs to Be Buried

Several Indians who celebrated Pakistan’s victory over India in a recent cricket match were slapped with sedition charges. That’s just the latest example of the law’s abuse to quell dissent.

India’s Sedition Law Needs to Be Buried

In this Tuesday, February 4, 2020 photo, an Indian woman holds a candle and placard to protest the sedition case filed by police against a school for a play performed by students denouncing a new citizenship law, in Bangalore, India.

Credit: AP Photo/Aijaz Rahi

On October 26, Nafisa Attari, a teacher at a private school in Udaipur in the western Indian state of Rajasthan, was arrested for her WhatsApp status celebrating Pakistan’s victory over India in the World Cup T20 match in Dubai two days earlier.

Soon after Pakistan won, Attari had put up a photograph of Pakistani players with the caption, “Jeeeet gayeeee” (We won). Before long, it went viral on social media, and soon enough, activists of the Akhil Bharatiya Vidyarthi Parishad (ABVP), the student wing of India’s ruling Bharatiya Janata Party (BJP), had gathered outside the school premises, demanding Attari’s sacking.

The school administration complied and Attari was sacked.

Meanwhile, a case was registered against her under Indian Penal Code section 153B for making “assertions prejudicial to national integration.” A day later she was arrested and subsequently released on bail.

Attari is not alone. Over a dozen people — all Muslims — have been taken into custody for cheering on Pakistan and celebrating its victory in the recent cricket match.

In Jammu and Kashmir, police have pressed charges of sedition against students and staff at two medical colleges in Srinagar under the Unlawful (Activities) Prevention Act, an anti-terror law, for allegedly “crying and dancing” while cheering for Pakistan. Six students from Jammu were detained.

In Uttar Pradesh, seven people were charged with sedition and arrested; three of them are Kashmiri students studying in Agra. The chief minister of BJP-ruled Uttar Pradesh, Yogi Adityanath, directed the state police to file sedition charges against those celebrating Pakistan’s victory.

A former Indian cricketer-turned-BJP politician, Gautam Gambhir, tweeted that “those bursting crackers [fireworks] on Pak winning can’t be Indian!”

This is not the first time that sedition charges have been slapped on people celebrating a Pakistan cricket win. In 2014, 67 Kashmiri students were arrested in Uttar Pradesh for celebrating Pakistan’s victory over India in the Asia Cup. A similar story unfolded in 2017, after Pakistan defeated India; 49 people were booked for sedition across Uttar Pradesh, Madhya Pradesh, Kerala, and Karnataka for alleged celebrations. In all these cases charges were dropped subsequently.

It wasn’t always like this. Back in 1999, India and Pakistan played a test match at Chennai in southern India. This was the first test series between the two archrivals in nine years and the first on Indian soil since 1987. Pakistan won the match. Tens and thousands of cricket fans in the M. A. Chidamabaram stadium, all die-hard Indian fans, rose to their feet to applaud the victorious Pakistanis.

Nobody charged them with sedition or said they were not Indian.

So did those who cheer Pakistan for winning the latest match act seditiously?

“It is definitely not sedition,” former Supreme Court judge Justice Deepak Gupta told The Wire in an interview. Celebrating a Pakistani victory over India may be considered offensive or unwise, “but it is not a crime, it is not illegal,” he clarified.

Section 124(a) of the IPC deals with sedition. “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” jail terms ranging from three years to life imprisonment, and fines, it says.

The Supreme Court judgment in the 1962 Kedar Nath Singh v Union of India case upheld the constitutional validity of the sedition law on the ground that the state required it to protect itself. However, the court added a caveat: “a person could be prosecuted for sedition only if his acts caused incitement to violence or intention or tendency to create public disorder or cause disturbance of public peace.” Therefore, disaffection against the government, however strongly worded, cannot be labeled seditious unless it is accompanied by an incitement of violence. In the 2015 Shreya Singhal v Union of India case, the apex court drew a distinction between “advocacy” and “incitement;” only the latter was punishable as sedition, it clarified.

As in the past, it is likely that most of those charged with sedition for celebrating Pakistan’s win will not be convicted.

It is not just for cheering Pakistan that one is charged with sedition in India, however.

Sedition charges have been slapped against: around 8,856 residents of a village who were protesting against the Kudankulam Nuclear Power Plant in 2010-11; political cartoonist Aseem Trivedi for sketches that lampooned the government in 2012; veteran journalist Vinod Dua for criticizing the Narendra Modi government’s mishandling of the COVID-19 pandemic in 2020; environment activist Disha Ravi for being a “key conspirator” in the dissemination of a toolkit on the farmer protests; and parliamentarian Shashi Tharoor and six journalists for tweeting “unverified news” about the farmers rally in January 2021.

According to home ministry data, a total of 326 cases of sedition were registered across India between 2014 and 2019.  The annual figures dipped between 2014 and 2016 and have been rising since. The number of sedition cases registered was 25 in 2016, 51 in 2017, 70 in 2018, and 93 in 2019.

Of the 326 cases registered in the 2014-19 period, just six culminated in convictions. Then why do police file such charges?

Chief Justice of India N.V. Ramana recently observed that a police officer could use Section 124 A “to fix anybody in a village for something.”

A policeman often files sedition charges “under pressure from overzealous politicians or others, who misuse the law to settle scores or want their so-called ‘patriotism’ to be noticed,” a professor in the National Law School of India University in Bangalore told The Diplomat.

Arguing in favor of retaining the law, the professor said that a country like India, “which faces many secessionist challenges, needs the sedition law to hold the country together.”

Former Attorney General of India Soli Sorabjee said in 2017 that “if there is a call to do away with the state by resorting to violent means, this needs to be checked by a proper application of the sedition law.”

Rather than doing away with the law itself, steps need to be taken to prevent the sedition law’s misuse, the professor said. In addition to “iron-clad provisions to prevent misuse of the law, police personnel must be educated on its provisions.”

A growing number of legal experts and rights activists, however, are calling for the sedition law’s removal from the rule books as it undermines democracy.

Indeed, the sedition law is antithetical to a democracy. The right to freedom of expression is central to a democracy. Being able to express differences with the government non-violently, and criticize its policies and plans without fear of punishment are key to the health of a democracy. Yet independent India decided to hold on to the controversial sedition law. It provided authorities with a tool to silence dissent and criticism.

Although most people who are charged with sedition are not convicted and thus escape the punishment this law prescribes, this is cold comfort especially in a country like India where the process is punishment. Getting arrested and spending days, sometimes even years in prison without bail, is a hellish experience.

Thus, while those who cheered for Pakistan’s recent victories in cricket matches can remain hopeful that they are will eventually be let off, they can expect to spend at least a few months in jail waiting for the court hearing to begin.

They can, however, draw satisfaction from the fact that they are in esteemed company — India’s founding father, Mahatma Gandhi was charged with sedition by British colonial rulers. During his trial in 1922, Gandhi is said to have described Section 124 A as “the prince among the political sections of the Indian Penal Code designed to suppress the liberty of a citizen.”

Slapping sedition charges to teach people a lesson or to force them to become pro-India will not work.

As Gandhi said at his trial, “Affection cannot be manufactured or regulated by the law. If one has no affection for a particular person or system, one should be free to give the fullest expression to his disaffection, so long as he does not contemplate, promote or incite to violence.”