Beyond the sedition law

The government’s unexpected decision to review the sedition law has, predictably, set off fevered public debate. Coming just after it defended the statute before the Supreme Court on grounds that abuse of the law is no argument for scrapping it, there is much speculation over whether the Modi regime means to dilute the law or read it down. The latter would mark a revolutionary change in tonality for the National Democratic Alliance II. Either way, though, it would be premature to conclude that India is about to enter some sort of Golden Age of freedom of expression.  

Attaining that paradise depends just as much on the political environment and the credibility of the law enforcement and legal apparatus. When populist leaders build popular bases on an exclusionary ideology or an absence of tolerance or both, the signals tend to be duly received down the line. Any thin-skinned regime at the Centre and the states and their freelance guardians can marshal a range of laws in the statute books to suppress dissent in a manner no less draconian than section 124A of the Indian Penal Code (IPC). Ask the thousands of Kashmiris detained by the Indian state without the benefit of habeas corpus after Article 370 was read down.

The IPC alone offers a bouquet of choices to suppress freedom of expression. Exhibit A is the career trajectory of Munawar Faruqui, the comedian who was jailed for jokes he did not make. He was arrested on a complaint by a local saffron functionary ostensibly for “hurting religious sentiments” — the cliché in vogue among middle class Indians of a particular ideological hue.

Mr Faruqui was charged under section 129A (which goes on about outraging religious feelings), section 188 (disobeying an order promulgated by a public servant), section 34 (a criminal act done in furtherance of the common intention of all) and section 269 (which concerns knowingly spreading infection and disease). Translated, this meant that he had intended to “hurt” religious sentiments and defied Covid regulations to do so.
 

Note, there was no sedition law in sight. Note also that none of the accusations was true. The police chose to act purely on the hearsay of the accuser that Mr Faruqui intended to make hurtful religious jokes, and the Madhya Pradesh High Court appeared to agree, denying him bail. It required a Supreme Court appeal for Mr Faruqui to get bail, but he chose to end his career last year after 12 shows were cancelled in two months.

Another legislative weapon in the Indian illiberal armoury is the Unlawful Activities Prevention Act (UAPA). From Binayak Sen to Umar Khalid, Stan Swamy and all the activists and academics under the absurd Bhima-Koregaon case, this law is frequently deployed across political regimes to stifle criticism.  Originally passed as an anti-terrorism law, replacing notorious predecessor laws, it has evolved into an instrument of state repression after a significant 2008 amendment that introduced a section enabling the court to presume the accused was guilty unless the contrary was shown, a perversion of constitutional guarantees.  

And then there’s the Emergency-era National Security Act that allows the Centre or states to take into preventive detention for up to 12 months without charge anyone that is deemed “acting in manner prejudicial to India’s security”. Under this Act, the accused can appeal before a High Court advisory board but is not allowed a lawyer. This law appears to be a tool frequently deployed in the turbulent north-east, most recently for silencing a journalist and an activist for sarcastic social media posts. But last month, NSA made its mainland debut. Five of those accused in the communal clashes in Jahangirpuri in north Delhi have been booked under this law.

If there are any number of laws that can be marshalled to suppress freedom of expression, there is always an obliging, ignorant and inefficient state apparatus to endorse it. Administration after administration has chosen to interpret the 1962 conditionality on section 124A — incitement to violence and discontent — in the narrowest possible way when public opinion irritates them. The arrest of 23-year-old Disha Ravi for editing three lines in a protest “toolkit” during the farmers’ agitation is a case in point. Before her, 19-year-old Amulya Noronha spent 110 days in jail for shouting  “Pakistan Zindabad” — admittedly a naive thing to do — at a protest meeting for the notorious Citizenship Amendment Act in 2020.

Then there’s the revelation by the People’s Union for Civil Liberties that the police continue to arrest people under section 66A of the Information Technology Act, which was struck down in March 2015. The Maharashtra police, for instance, has registered 381 cases since 2015. The UP police filed just 22 cases under this section before 2015. After that, it appeared to have discovered its utility by booking 245 people under it. Jharkhand and Rajasthan are no slouches on this score either.

And, finally, there’s always the snail-paced delivery of Indian justice, a guaranteed check on critics of the state. Ambikesh Mahapatra, professor of chemistry at Jadavpur University, can confirm this. He was arrested in 2012 under Section 66A for forwarding cartoons of Mamata Banerjee. Ten years on, he’s still fighting the state government. Only, it has now invoked sections 500 and 509 of the IPC — respectively defamation and outraging the modesty of a woman. Go figure.