GS-2, Uncategorized

The widening fissure in India’s rule of law

What is all about?

Many times it has been observed that police used to arrest people on charges of sedition. Some times even fake encounters take place.

Even after seven decades of Independence, the relationship between the individual and the state is marked by a deep and pervasive imbalance of power.

Indian state retains a range of legal — and extra-legal — weapons, which it can turn against its own people with minimal scrutiny or accountability like colonial masters.

Sedition, a grey area

A century-and-a-half after it was first enacted into the Indian Penal Code by the colonial government, the vague, ambiguous, and unclear wording of the sedition provision continues to make it ripe for abuse.

Sedition is defined as “disaffection” against the government, or bringing it into “hatred or contempt”.

However, when the sedition law was challenged in 1962, the Supreme Court of India chose to uphold it, while claiming to “narrow it down”. The court noted that only acts that had a “tendency” to cause public disorder would fall within the scope of the section.

Backgrounder for Sedition

  • Before Independence, this charge was used by the British to suppress the freedom movement.
  • As a result of the ardent opposition in the Constituent Assembly, the word sedition‘ does not find a place in our Constitution.
  • Presently, section 124 A IPC defines sedition as an act that 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 spoken or written, or by signs, or by visible representation, or otherwise.

Sedition Law’s relevancy

  • The freedom of speech often poses difficult questions, like the extent to which State can regulate individual conduct. Since an individual‘s autonomy is the foundation of this freedom; any restriction on it is subject to great scrutiny.
  • Article 19(1)(a) of the Constitution of India guarantees freedom of speech and expression to all citizens. However, this freedom is subjected to certain restrictions namely, interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offense.
  • The courts have stressed the importance of contextualizing the restrictions while ascertaining the permissibility of expression. Balancing freedom of expression with collective national interest is one of the key ingredients of this law.
  • The Kedar Nath judgment upholds the restrictions imposed by Section 124A (sedition) of the Indian Penal Code on the fundamental right to free speech and expression. But the court makes it clear that such restraints apply only to “acts involving intention or tendency to create disorder or disturbance of law and order or incitement to violence”.
  • The judgment explains what it means by “acts inciting violence against the government”. “Any written or spoken words, etc., which have implicit in them the idea of subverting government by violent means, which are compendiously included in the term ‘revolution’, have been made penal by the section in question,”.
  • The Supreme Court held that “comments, however strongly worded, expressing disapprobation of actions of the government” and which shun violence are not sedition.
  • Denunciating the sedition law for ‘rampant misuse’ concedes ground that there exist instances where its ‘use’ may be necessary
  • The impact on public tranquility is but one of the consequences of any seditious activity. However, far more alarming potentialities include calls for violent revolutions seeking to overthrow the government, appeals for a separate state, For Example– Demand for separate Khalistan or separate Kashmir and other atrocity propaganda, which does not qualify as protected speech and has the ability to denude the legitimacy of a democratically elected government.
  • The Supreme Court has repeatedly observed that the mere possibility of misuse of a provision does not per se invalidate the legislation. In such cases, the vulnerability extends only to the ‘action’ and not the ‘section’.

Tool of Oppression:

The playbook of the sedition law has, of course, been replicated elsewhere, in postcolonial legislation. The Unlawful Activities (Prevention) Act, or UAPA, for example, contains language that is as wide and vague, criminalising “membership” of terrorist gangs or unlawful organisations, without any explanation of what “membership” means.

Under these provisions, journalists, activists, and human rights lawyers allegedly associated with events at Bhima Koregaon in 2018, were arrested later that year, and still remain in jail without a trial.

Fake encounters

The problem of “fake encounters”, which has long dogged the Indian polity, was thrown into sharp relief when the Telangana police “encountered” four people accused of a brutal rape and murder in the early hours of December 6.

It hardly needs to be said that “encounters” — and “fake encounters” — take place because there do not exist adequate structures of accountability. Without those structures, the police effectively operate in a zone of impunity.

In 2009, the then High Court of Andhra Pradesh passed a landmark judgment, in which it attempted to create a regime of accountability. Central to this regime was the requirement that encounter deaths would be investigated as if they were murder cases.

An FIR would have to be registered against the police officers responsible for the encounter, and to the extent that they invoked self-defence they would have to prove it.

The High Court’s judgment, however, was stayed by the Supreme Court, which then passed a series of vague and unclear guidelines a few years later, on the same subject.

These incidents of sedition, fake encounters etc show that the rule of law and the Constitution continue to fail those who need it the most, and in the places where it is needed the most. And the root cause of this failure is the active complicity of the very actors who we most expect to maintain the rule of law: clearly, abusive laws are enacted by Parliament, upheld by courts, misused by the police, and sanctioned (again) by courts.

What to do ?

To break this seemingly unending cycle, it is important to understand that its root cause lies in how laws such as the sedition provision, the UAPA, and many others, systematically concentrate power in the hands of state agencies, and equally systematically, strip individuals and communities of legal ways to resist (the UAPA, for example, prohibits judges from granting bail if the police makes out a “prima facie” case against the accused).

In our recent history, on the other hand, we also have had examples of laws that have done the opposite: both the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, or FRA, and the Right to Information (RTI) Act, for example, have rebalanced the relationship between the individual and the state in important domains.

If we are to ever fulfil the promises of freedom and equality that the Constitution of India guarantees to all, we must learn from the social movements that gave birth to the RTI and the FRA, and organise in similar ways against laws such as sedition and the UAPA.

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