Misuse of sedition laws turning India into a police state, says Justice Deepak Gupta of SC

He was speaking at a lawyers’ workshop and delivering the valedictory address on “Sedition and freedom of expression” but with the caveat that he was speaking not as a judge but as a citizen of India.

But Justice Gupta did not mince his words and blamed the police, the state and even the judiciary for abusing the colonial law on sedition. Stifling of criticism, he warned, would reduce India to a police state.

Recalling Mahatma Gandhi who told a court after being charged with sedition that affection for the government could not be manufactured, Justice Gupta quoted the Mahatma as saying, “Affection cannot be manufactured or regulated by law. 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…”

While the court had sent the Mahatma to jail for six years, the law is now archaic and deserved a long and hard second look, he said.

The following are the salient points he made:

· We all must be open to criticism. The judiciary is not above criticism.

· Criticism of the executive, the judiciary, the bureaucracy or the Armed Forces cannot be termed sedition. In case we attempt to stifle criticism of the institutions whether it be the legislature, the executive or the judiciary or other bodies of the State, we shall become a police State instead of a democracy.

· Merely because a person does not agree with the Government in power or is virulently critical of the Government in power, does not make him any less a patriot than those in power. In today‘s world, if any person was to say ―nationalism is a great menace he may well be charged with sedition. But that is what Rabindranath Tagore said and yet he was no less a patriot.

· The law of sedition is more often abused and misused. The people who criticise those in power are arrested by police officials on the asking of those in power and even if a person may get bail the next day from court, he has suffered the ignominy of being sent to jail. The manner in which the provisions of Section 124A are being misused, begs the question as to whether we should have a relook at it.

· Freedom of expression being a constitutional right must get primacy over laws of sedition. Sedition is a crime only when there is incitement to violence or public disorder. That is what the law of the land is as laid down in Kedar Nath Singh’s case.

· Sadly, day in and day out, we read of people being arrested in different parts of the country for making cartoons, making not so complementary references about the heads of the State, etc.

· The police always claim to be short of forces when questioned about the adverse law and order situation in various parts of the country. Trials in criminal cases of rape, murder and crimes falling under POCSO carry on for years on end because police officials do not have time to even depose before the courts but when it comes to sedition or Section 153A or implementing the provisions of Section 66A of the Information Technology Act (which has been declared unconstitutional), there seems to be no shortage of manpower and the police acts with great alacrity.

· It is, thus, clear that there is one set of rules for the rich and the powerful and another set of rules for the ordinary citizens of the country. In a country which professes to live by rule of law, this cannot be permitted.

· In Chhattisgarh, a 53 years old man was arrested on charges of sedition for allegedly spreading rumours over social media about power cuts in the State. It was said that this was done to tarnish the image of the then Government running the State. The charge was absurd and again highlights the misuse of power.

· In Manipur, a journalist made a vituperative attack on the Chief Minister of the State and used totally unparliamentary language against the Prime Minister of the country. The language was intemperate and uncalled for but this was not a case of sedition. It was at best a case of criminal defamation. The man as kept behind bars for months under the National Security Act.

· In West Bengal, a party leader was arrested for morphing an image of the Chief Minister and in U.P., a man was arrested for morphing the image of the Prime Minister of the country and shockingly this mage had been morphed 5 years back. What was the hurry to suddenly arrest this man after 5 years?

· A rapper who does not even live in India has been charged for sedition. The language used by her may be totally uncalled for, some other offences may be made out, but sedition does not appear to be one of them.

· In another extreme case, a film maker in Tamil Nadu has been booked under Sections 153 and 153A IPC for inciting caste enmity because he allegedly made remarks against the Chola Dynasty King for being caste oppressive. This Chola Dynasty King lived more than a thousand years back.

· The law of creating disharmony and Section 66A of the Information Technology Act, 2000 which has been held unconstitutional are still being used day in and day out to arrest people.

Justice Gupta lamented that “There is no healthy discussion; there is no advocacy on principles and issues. There are only shouting and slanging matches. Unfortunately, the common refrain is either you agree with me or you are my enemy, or worse, an enemy of the nation, an anti-nationalist.”