India’s sedition law is a dangerous hangover from British colonialism

21 Mar 19 | Asia and Pacific, India, News and features

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Mahatma Gandhi during his trial for sedition in Match 1922

Mahatma Gandhi during his trial for sedition in Match 1922.

It’s been 72 years since India gained independence from Britain, but sedition remains entrenched not only in law (Section 124-A of the Indian Penal Code), but also in the mindset of successive governments.

In 1922, Mahatma Gandhi, leader of the Indian independence movement, was tried and prosecuted for “bringing or attempting to excite disaffection towards the British Government established by law in British India”, under Section 124-A.

“Affection cannot be manufactured or regulated by law,” Gandhi said while on trial. “If one has no affection for a 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.”

“Sedition was made an offence under the Indian Penal Code of 1860 which was drafted by [British Whig politician] Thomas Macaulay,” Suhrith Parthasarathy, a lawyer and writer based in Chennai, India, tells Index on Censorship. “It was unquestionably a weapon at the hands of the colonial government.”

Jawaharlal Nehru, India’s first prime minister, and other prominent figures believed sedition should have no place in the newly independent India’s law books, Parthasarathy adds, “but unfortunately no elected government has thought it necessary to amend the IPC and delete Section 124-A”.

The authorities in India today are using Section 124-A to stifle dissent. A Manipur student activist was arrested over a social media post on the contentious Citizenship Bill, 14 students of Aligarh Muslim University were arrested for raising anti-national slogans on campus, and four students of Kashmiri origin in Rajasthan were charged with sedition over social media posts about last month’s terror attack in Jammu and Kashmir.

Parthasarathy says it is difficult to predict the outcome of these ongoing cases. “Instances of conviction where people have had to face imprisonment for sedition are rare,” he adds. “But the process is often a greater punishment — people accused of the offence face imprisonment and a trial, which can be long, arduous and hugely chilling.”

Section 124-A criminalises anyone who “through words, either written or spoken, or by signs, or by visual representation, or otherwise, brings or attempts to bring into hatred or contempt, or excites or attempts to excite disaffection towards the government”, with the term disaffection meaning “disloyalty and all feelings of enmity”.

The misuse of sedition law is not specific to any one political party in India. Since independence, many writers, activists and cartoonists have been accused of sedition by governments across the country as a response to legitimate criticism.

In the 1962 case of Kedar Nath Singh v State of Bihar, the Supreme Court of India, upholding the constitutional validity of 124-A, ruled that a person could be prosecuted if they “incitement to violence or intention or tendency to create public disorder or cause disturbance of public peace”.

In its third attempt to determine the validity of sedition, earlier last year, the Law Commission of India observed that while dissent is essential to any democracy, law enforcement agencies must use sedition law judiciously. Additionally, it also held that it is necessary for the Supreme Court to interpret the provisions of sedition law. The report also notes that the United Kingdom has itself abolished its own law on sedition almost a decade ago. While the powers of the Law Commission of India are limited to providing suggestions and recommendations only, the Parliament of India, the lawmaking body of the government, and the judiciary, the custodian of human rights, ought to revisit the justification of this provision.

With the indiscriminate use of archaic laws for dissenting against the government, many have raised their voices against such arbitrary restrictions on the fundamental right to free speech and expression, which is granted under the Constitution of India. Given the record of the ruling party in the last four years, intolerance of criticism is only seeing a rise in the country with authorities clamping down on free speech behind the garb of disloyalty and anti-national sentiments.

In 2015, Section 66A of the Information Technology Act 2000, which criminalised online speech considered “grossly offensive”, “menacing”, and caused “annoyance”, was struck down as unconstitutional due to the ambiguity of such terms. The Supreme Court of India held that any restrictions on speech could only be deemed reasonable under Section 19(2) of the Constitution of India. While the sedition law suffers a similar problem with definition, along with a lack of procedural safeguards, the Supreme Court has argued time and again that seditious words or actions are likely to threaten public order or incite violence, which is a reasonable restriction on free speech.

In data submitted to the Parliament of India by the Ministry of Home Affairs, which is in charge of law and order in the country, between 2014 and 2016, the first three years of the current government’s time in power, 179 people were arrested on the charge of sedition with only two convictions. This leads many to believe that authorities are abusing the law to stifle dissent and harass those who speak out.

There is a growing demand for amending the sedition law or repealing this relic of the past. However, there is an urgent necessity to first address the systemic flaws to ensure that these laws are not misused so as to mock free speech in India.

“The only amendment that we need on sedition is to remove Section 124-A, which parliament, if it has the will, can easily do,” Parthasarathy says. “P Chidambaram of the Indian National Congress has said recently that if the congress comes to power they’ll remove section 124-A from the IPC. But we have to ask the congress why they hadn’t thought of removing it earlier.” With a general election due to take place on 11 April, congress’s manifesto committee has promised to repeal sedition law.

“I would be very pessimistic of change coming from parliament,” Parthasarathy concludes. “Perhaps one day the Supreme Court will reconsider its 1962 verdict and strike Section 124-A down, for it unquestionably violates the right to freedom of speech and expression.”[/vc_column_text][/vc_column][/vc_row][vc_row][vc_column][vc_basic_grid post_type=”post” max_items=”4″ element_width=”6″ grid_id=”vc_gid:1553177738983-78591bd7-912e-5″ taxonomies=”6514″][/vc_column][/vc_row]

Protest around the world

21 Sep 15 | India, Lebanon, Malaysia, mobile, News and features, United Kingdom

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Elena Rostunova / Shutterstock.com

Beirut is currently witnessing a wave of protests triggered by a rubbish disposal crisis and, lacking a legal framework, the authorities are struggling to cope. The protest — dubbed You Stink by many, including former Index on Censorship Freedom of Expression Awards nominee Lucien Bourjeily — comes as waste has been allowed to build up on the streets of the Lebanese capital. You Stink has very quickly morphed into a more general protest against the way public services in Lebanon are run and corruption levels within a weak government that has been without a president since May 2014.

Thousands of protesters have taken to the streets and social media channels to voice their frustration while the Lebanese authorities have struggled to respond. One short-term solution was to build a wall between the prime minister’s office and the streets below.

Lacking a legal framework for dealing with the protest has left the Lebanese authorities alternating between ignoring the rallies and violently cracking down but neither strategy has made an impact on demonstrations that began in July. Riot police were recently drafted in to clear an occupation at the office of Lebanon’s environment minister Mohammad Al Mashnouq. In that incident, Bourjeily was hospitalised with an injured arm after police cleared the sit-in.

A report by Freedom House in 2013 found that “Freedom of assembly has been generally unrestricted (in Lebanon) in the past, as hundreds of thousands of Lebanese have rallied in favour of or in opposition to the government.” There is no precedent to arrest or disperse large numbers of people protesting against a government or rule of law. Though police have been using force to disperse largely peaceful protests, there is no fear of arrest so the movement continues.

The benign legal framework is coupled with Lebanon’s open media freedom environment. The country is one of the highest-ranked Middle Eastern states for press freedom.  Citizens can also vent their frustrations via the internet and social media with relative ease. Much of the activity that has surrounded the You Stink protests has been spawned online.

The chaos ensuing in Beirut contrasts with the largely peaceful mass demonstrations against the Malaysian prime minister Najib Razak, who has been tainted by accusations of corruption.

The turnout for the protests has been large despite amendments to the country’s colonial-era sedition act made in April 2015 but the threat of arrest was very real as the rally organisers of the protest Bersih 3.0 (Malay for “clean”) recently found out. Websites spreading word of the demonstrations were banned and when groups of protesters attempted to break through the barriers they were fired at with tear gas and beaten and arrested by police, often under sedition laws.

The penalties for the vaguely worded “seditious activities” have recently been increased to 20 years, changes described by the UN and Razak’s opposition as a “black day” for freedom of expression. The sedition law was also used as a legal tool to investigate up to 50 protesters in the Taman Medan region peacefully protesting against the affixation of a cross on a local church’s premises. Initially, the inspector general of police in the region stated that the demonstrators would be cleared of any wrongdoing but this was vetoed by the Home Minister and Razak, who urged police to investigate the protest under sedition and said action could be taken under the law. The case was classified as sedition and serves as an example of a growing climate of fear being emphasised by its use in Malaysia.

Another colonial-era sedition law has been used in India to target groups of protesters on a number of occasions, including 2012 demonstrations against the building of a power station in Tamil Nadu. When told they couldn’t march, thousands of demonstrators stood still to register their concerns about the health impact that the plant would have. A report by local activists after the protest found that at least 3,500 of the participants were being investigated for sedition. South Asia Human Rights Watch denounced the charges and urged the Indian parliament to repeal the law.

In an even stranger case, a charge of sedition was issued in March 2014 against a crowd of Indian students cheering for Pakistan in a one-day cricket match between India and Pakistan. The charges were eventually dropped after outrage from Jammu and Kashmir Chief Minister Omar Abdullah.

Western cities like London may not use sedition as a tool to halt protest but the authorities still find dealing with protest far easier when they are backed by a legal framework. The Public Order Act 1986 outlines the law relating to protest in the UK and makes a firm distinction between static assembly and a moving march. In order to hold a march, protesters are required to submit a permit to a police station at least six days before it takes place and the police can then impose sanctions. In this way, the authorities are able to curtail attempts by demonstrators to protest spontaneously en masse.

Even a static assembly can be sanctioned if the police believe it will cause serious public disorder, serious damage or intimidation. This was the case with the neo-Nazi protest moved from Golders Green to Whitehall in July.

An added piece of legislation, The Police Reform and Social Responsibility Act, came into force in 2011, mainly as a response to the actions of Brian Haw whose tent demonstration outside Whitehall lasted from 2001 until his death in 2011. This new act prohibits protesters from certain activities outside Parliament, preventing protesters from, among other things, operating amplified noise equipment and erecting tents or “sleeping structures”. The wording here is important. In the midst of protests resembling those currently taking place in Beirut, when British protesters “occupied” Whitehall in 2014, the phrase “sleeping structures” was used to cover all sorts of paraphernalia, with the images of protesters being forcibly removed from lying on tarpaulins and sleeping bags being etched into the minds of those observing the British press in the following few weeks. It even prompted a global hashtag, #tarpaulinrevolution.

The new act is coupled with regulations under City of Westminster bylaws stating that protesters must gain written permission before they protest in London’s Parliament Square. The UN General Assembly’s special rapporteur voiced grave concerns about these by-laws and restrictions in a report in 2013.

Protests such as those in London, Malaysia and Tamil Nadu can pictorially resemble those happening in Beirut but are far less of an issue for the authorities due to them being able to rely on a legal framework to disrupt them. In Malaysia, fear of sedition looms large over the heads of even the most peaceful of demonstrators.

For the time being, protest against the interim government in Beirut rumbles on, unabated.

Sedition laws: India’s colonial-era threat to free expression

26 Sep 12 | India

Aseem Trivedi’s arrest for his anti-establishment cartoons shocked and outraged India.

Section 124 of the Indian Penal Code, under which Trivedi was arrested, is reserved for anyone who “brings or attempts to bring into hatred or contempt, or excites or attempts to excite disaffection towards the government,” with disaffection meaning “disloyalty and all feelings of enmity”. Although a majority of Indians found the cartoons crude rather than clever, public opinion overwhelmingly believed the cartoonist was well within his rights to publish them.

(more…)