Last month, Liberation carried a cover feature that showed how the Modi Regime and the BJP/NDA governments in States have been using the sedition law and sundry other tools to book protesters and silence critics and activists while encouraging communally insidious groups like Kapil Mishra's Hindu Ecosystem spread Islamophobia and instigate violence. In this article we would like to carry the discussion forward by questioning the constitutional validity of the archaic sedition law itself and looking into issues like growing onslaughts on freedom of expression and other fundamental rights as well as on the autonomy of constitutional bodies like the EC and CAG and the federal structure of Indian polity.

Sedition Law should be Immediately Abolished: Retired SC Judge

The Indian sedition law (Section 124A of the IPC) is a relic of the colonial era when freedom of speech was not considered as important as it is today. It penalises a person who "by words, either spoken or written...excites or attempts to excite disaffection towards, the Government"^[1].  But it is no longer exactly the same as what it says in print. Because, as far back as in 1962, the Supreme Court in the Kedar Nath Singh case had read down Section 124A, saying a speech/piece of writing/call or slogan would be considered seditious only if the police could establish that it contained an incitement to violence and directly led to an actual act of violence. So this is the law of the land today, as reiterated by the apex court umpteen times. But the problem is, oftener than not police officials and magistrates have been ignoring the redefined spirit of the law and acting on the dead letter on the statute books -- either because of ignorance or, in most cases, under pressure from the political bosses.

The blatant misuse of Section 124A has faced stringent criticism in courts of law on two successive occasions this March. In both cases the charges were baseless and made with malicious motives.

Out on his campaign trail ahead of the assembly elections, the Prime Minister once again sought to divert attention from burning problems on ground and popular protests around the country by launching a scathing attack on “international conspirators” bent on “discrediting India”. Without directly taking the names of Disha Ravi and Greta Thunberg (but referring to the ‘toolkit’), Modi warned that the country will “respond to these conspiracies with all its might”. And the ‘response’ came in less than a week. On February 13 the Delhi Police, which takes directions from Amit Shah, arrested Disha from Bengaluru, brazenly violating the due process of law. During her bail hearing they repeatedly harped on the conspiracy theory floated by the top boss while the pliant media , as usual, sought to sensationalize the ‘toolkit’ -- a term not so familiar with the general public -- with an eye on influencing the trial.

However, the Delhi Sessions Court rejected both the charges: of Disha’s involvement with a ‘larger conspiracy’ for inciting violence and of sedition. It ruled that "the offence of sedition cannot be invoked to minister to the wounded vanity of the government", adding further that the government couldn't put people "behind bars simply because they choose to disagree with the state policies".

Around the same time, the Supreme Court dismissed a PIL against former J&K Chief Minister Farooq Abdullah. The PIL alleged that Abdullah was conspiring to “hand over” Kashmir to China as he had "made the live statement that for restoring Article 370 he would take help of China". The SC ruled that "expression of views which is dissent and different from the opinion of the government cannot be termed seditious" and imposed a fine of Rs 50,000 on the petitioners — Rajat Sharma and Neha Srivastava, both belonging to an organisation named Vishwa Guru India Vision of Sardar Patel — when they failed to substantiate the allegation that Abdullah was being helped by China and Pakistan against India to speak up against the abrogation of Article 370.

It was in this backdrop that Justice Deepak Gupta, who had retired from the Supreme Court last year, said in a recent interview with Karan Thapar from The Wire that Section 124A of the Indian Penal Code should be “immediately abolished”. And why? Because it is used by governments to create fear in the citizenry and to prevent or throttle dissent and cases of its misuse are increasing “exponentially”.

Justice Gupta was asked if it was seditious or even a crime to talk to someone who champions Khalistan or is a member of a banned organisation and his clear answer was that its neither i.e., not sedition and not a crime. He also said it was not sedition for journalists to tweet that they had been told a protester on Republic Day had died because he was shot, something the man’s grandfather claims to be the case. Even if the content of the tweet subsequently proved wrong, he clarified, it could, arguably, be poor journalism but certainly not sedition or a crime.

Finally, Justice Gupta was asked, given that in 1995 the Supreme Court had ruled in the Balwant Singh case that it was not sedition to shout ‘Khalistan Zindabad’ – something that happened the day Indira Gandhi was killed and in a public place – is it sedition for JNU students to shout ‘Bharat tere tukde tukde honge inshallah inshallah’? His answer was that it would only be sedition if the police could directly link this call or slogan to an act of violence. He said over three years have passed and no such evidence or proof has come forward. Therefore, he said, he does not believe this is likely to be sedition.

Global Watchdogs on Political Rights, Civil Liberties and Media Freedom in India

In April last year, the US government’s Religious Freedom Monitor noted that religious freedom had improved globally but singled out India for seeing a “sharp downward turn”. Then in December, India was ranked 111th out of 162 countries in the Washington-based Cato Institute’s Human Freedom Index 2020. Between the 2019 and 2020 indices, our country plummeted 17 spots.

This year, “Freedom in the World” -- the flagship annual report from Freedom House, a United States government-funded NGO -- lowered India’s status in the global ranking from “free” in 2020 to “partly free”. The latest report says, “Political rights and civil liberties in the country have deteriorated since Narendra Modi became prime minister in 2014, with increased pressure on human rights organizations, rising intimidation of academics and journalists, and a spate of bigoted attacks, including lynchings, aimed at Muslims … The decline only accelerated after Modi’s reelection in 2019.”

Referring to the vilification of members of the Tablighi Jamaat last year, the report observed, “The ruling Hindu nationalist movement also encouraged the scapegoating of Muslims, who were disproportionately blamed for the spread of the virus and faced attacks by vigilante mobs…”  

The V-Dem Institute, an independent research institute based at the University of Gothenburg, has observed that India is no longer an ‘electoral democracy’, classifying the country as an ‘electoral autocracy’ instead. It pointed out that much of the decline in democratic freedoms occurred after the BJP’s victory in 2014 and put India in the same bracket with states like Brazil, Turkey and the USA, where “an accelerating wave of autocratisation” (recall Georgi Dimitrov’s description, made nearly hundred years ago, about the prolonged process of “fascistization” within an apparently democratic set-up) is taking place. The process of autocratisation, it says, “typically follows a similar pattern across very different contexts”. It begins with ruling governments attacking the media and civil society, followed by polarisation of the society by “disrespecting opponents and spreading false information” and culminates in elections being undermined. As far as censorship is concerned, the Institute reckons that India is now as autocratic as is Pakistan, and worse than both its neighbours Bangladesh and Nepal.”  

The international press is replete with similar reports from several other sources based in friendly countries. Thus the World Press Freedom Index 2020, published by the Paris-based reporters without borders, ranked India 142nd (sliding two places from 140 a year ago, and just three places ahead of Pakistan, which now stands at 145). To put it in perspective, India's rank was much better at 106 in the year 2006.

In addition to data-based analyses and indexes, the rapidly growing criticism of the Modi government’s harsh treatment of dissenters, journalists and activists also comes in the form of more focused and issue-based initiatives. The New York-based Clooney Foundation for Justice (CFJ), which seeks to promote accountability for human rights abuses around the world, has announced it will monitor the trial of Kashmiri journalist Aasif Sultan, who has been in detention for more than two years on terror charges. He had received the John Aubuchon Press Freedom Award from the American National Press Club in 2019 and was  featured in TIME magazine’s 10 ‘Most Urgent’ cases of threats to press freedom around the world last year.

More recently, seven UN Special Rapporteurs wrote to the Indian government seeking information on the factual basis of investigations involving cases against human rights defenders and journalists in Kashmir including Parvaiz Bukhari, Khurram Parvez and Parveena Ahangar.

US Farmers and Farmworkers Criticize Indian Farm Laws

In February this year, as many as 87 farmers’ unions in the US hailed the ongoing protests at Delhi’s borders as “one of the world’s most vibrant protests in history.”

“Their rallying cry” the letter from the unions reads, “is to repeal the three unjust laws that were passed without their knowledge or consultation. We extend our solidarity to countless farmers who are peacefully and boldly standing up for their rights and dignity, with other farmers from across the globe.”

The unions extol the virtues of MSP, noting that it is a key price signal to other traders, and ensures that farmers receive a fair price for crops. Drawing attention to the role of the US government in pushing the farm laws, they say: “The US has been a key opponent of India’s limited use of MSP at the World Trade Organization (WTO). The US, with Australia, Canada and European allies, has claimed that India’s MSP distorts trade.”  

The unions blame “forces of neoliberalism” in India and the US for the sorry plight of small farmers in both countries and assert that what Indian farmers are enduring now happened in the US almost four decades ago:

“Reagan era furthered the farm crisis through deliberate federal policy changes, with systematic erosion of parity prices and other deregulatory efforts. ‘Get big or get out’ has been our government’s mantra. Farmers with the means to consolidate have been rewarded for growing monoculture commodities. Tribal nations and traditional producers as well as small farmers who have always practiced or shifted to diversified agro-ecological farming have effectively been subsidizing the US agriculture sector. It is rare for these food producers to make a living without supplemental income. Unsurprisingly, farm suicides in rural America are 45% higher than the rest of the population…. While the U.S. agricultural sector receives inordinately large support compared to many countries, access to that support remains inequitable. In particular, Black, Indigenous, Latino, Asian-Pacific and other people of color producers, who lack secure land tenure and are concentrated in vegetable and small-scale cattle sectors, have been excluded historically. Support flows to larger agribusiness farming operations instead of the independent family farmers whose voices we amplify.”

“We have great respect for the unified struggles the farmers and farmworkers of Samyukt Kisan Morcha have built, and we stand with them,” the unions announced.

UK and US Legislators Question India's Democratic Credentials

The Indian government came under fierce criticism in the House of Commons in early March for allegedly violating the freedom of journalists to report on the farmer protests and the alleged use of brute force against protesters when British MPs debated a petition on the topic which has garnered over 115,000 signatures. “The UK government values its trade relationship with India, but it must be broader and deeper than just trade, it must also be about joint promotion of democracy, human rights and upholding international law,” said Stephen Kinnock, Labour’s shadow minister for Asia. “Mr Modi does need to recognise the world is watching”, he added.

Even Conservative MP Paul Bristow said the actions of the Indian Government in response to the farmers’ protests had “crossed a line”. “Upholding the law should never be allowed to slide into authoritarian oppression,” he said. The lone voice defending India amongst the 20 odd MPs who took part in the debate was that of Conservative MP Theresa Villiers.

Finally, Nigel Adams, minister for Asia at the foreign, commonwealth & development office, responded to the debate saying “We look to the Indian government to uphold the freedoms guaranteed by its Constitution and international instruments to which India is party. Whilst this is an exciting time for the UK-India partnership it does not hinder us from raising difficult issues.”  

A new report by the US Congress’s non-partisan and autonomous research service has taken a critical view of India’s handling of the farmer protests, warning that New Delhi’s position on the ongoing stir could “present a challenge” for the Biden administration as it shapes its Indo-Pacific policy with India as a key partner. “By some accounts, the crackdown on dissent has been excessive and reflective of a broader trend towards authoritarianism in India,” said the report.

Are these Baseless Allegations to Discredit our Country?

Yes, that is what the rulers would like us to believe, although the criticisms are emerging from UN bodies and countries considered to be very good friends of India, not from China or Pakistan. But the fact is, our experience over the past nearly seven years fully corroborate the observations made by the comity of nations. The NIA raids and police atrocities, the indiscriminate UAPA and sedition charges, the endless and limitless violations of human rights and civil liberties in Jammu and Kashmir and all across the country, fake news and hate speech factories running overtime - - the all too familiar features of fascist bellicosity are part of our everyday experience. A new stratagem, which affects not just media freedom but the freedom of speech and essential communications of ordinary citizens, is the frequent imposition of bans on the usage of the internet and social media. And almost every morning we wake up to hear about some new onslaught on lives and livelihoods, privacy and dignity of the people. To take a quick glance at some grisly recent developments,

• A new set of stringent rules for strengthening the Centre’s oversight on social media, digital media platforms etc. has drawn flak from all who value privacy and freedom of expression.


• On March 15, the Centre introduced the Government of National Capital Territory of Delhi (Amendment) Act, 2021 in the Lok Sabha. The bill seeks to give overarching powers to the Lieutenant Governor (L-G, who is appointed by the President on the Centre's advice). According to the proposed amendments, 'government' referred to in any law passed by the legislative assembly would mean the L-G. The elected government will also be barred from making any rule that empowers it or its committees to take up matters of day-to-day administration or conduct inquiries into administrative decisions. After being rejected by the people of Delhi in both assembly and municipal elections despite the communal riots instigated by it, the BJP is thus trying to grab effective power in the national capital through a back door. By handing over almost absolute power to the L-G from the elected Government and legislature, the bill clearly goes against the relevant constitutional provisions and the Supreme Court verdict of July 2018. That unanimous judgement from a five-judge bench headed by Chief Justice Dipak Misra said, inter-alia, that the L-G is bound by the "aid and advice of the Kejriwal government, which has the public mandate" and the elected government need only to "inform" the L-G of its decisions and need not obtain his "concurrence" in every issue of day to day governance.


• In Jammu and Kashmir the panel for redrawing the parliamentary and assembly constituencies has been given a one-year extension, which means assembly polls -- due since the BJP-PDP alliance fell apart in June 2018 -- would be further deferred as they cannot happen until the exercise is concluded. Clearly, the ruling dispensation is deliberately delaying elections because they know they will face a humiliating defeat at the hustings.


• In an order aimed at checking police brutality, the Supreme Court had on December 2 last year instructed the Centre, States and Union Territories to install CCTV cameras in every police station and in the offices of central investigating agencies such as CBI, ED and NIA. The order was not implemented and the Court on March 2 pulled up the Centre for “dragging its feet”. When Solicitor General Tushar Mehta argued that doing so might have serious ramifications and sought extra time to implement the court’s order, the Bench headed by Justice RF Nariman said, “We are not concerned about the ramifications…This concerns the rights of citizens…We are not accepting the excuses.”


• The findings of both V Dem and Freedom House have been fully endorsed and further substantiated by the Citizens Commission on Elections (CCE) which has as its members people like former Supreme Court judge Madan. B. Lokur, former Chief Information Commissioner Wajahat Habibullah, Arun Kumar and John Dayal while many others including Harsh Mander, Paranjoy Guha Thakurta and Anjali Bhardwaj contributed to preparing its various thematic reports. The CCE believes that “the decline” in India’s status to ‘partly free’, “is due to the increased pressure on human rights organisations, rising intimidation of academics and journalists, and a spate of bigoted attacks, including lynchings, aimed at Muslims.”


• The resignation, under political pressure, of Professors P B Mehta and Arvind Subramanian is indicative of a new low in academic freedom in our country. It reveals that the Modi Regime, after positioning their henchmen in advanced institutions that promote freedom of expression and critical thought -- such as JNU, Jadavpur University as well as central universities like Visva Bharati -- is desperately working for regimentation and saffronization of the entire academic space. More significantly, it shows that the academic freedom even of the PM’s former economic adviser Arvind Subramanian and renowned author and former Vice Chancellor of Ashoka University P B Mehta is far from secure. It is highly encouraging, of course, that distinguished academics and intellectuals from India and abroad have lodged their strong protest against gross political interference in the academia. Most important, the students in Ashoka University have shown the courage to launch a two-day strike, specifically blaming the VC, the Chancellor and the founders of the university for their failure to protect the university "from external political pressures".


• According to a report published in Sunday Times on the 7th of March, the Comptroller and Auditor General’s reports came down from 55 in 2015 to just 14 in 2020, a fall of nearly 75% while defence audit report fell from eight in 2017 to zero last year, raising concerns that the government’s financial accountability is not coming under the CAG’s gaze very closely. This was revealed in a reply to an RTI application filed by the newspaper. Former IAS officer Jawahar Sircar quipped, “The last two-three CAGs have not been very aggressive like Vinod Rai. In fact, they were unusually lenient and soft.” Sircar added that even serious issues such as the impact of demonetization was not taken up by the CAG for audit.

Now, what Sircar said about the CAGs applies equally to many other institutions and high officials. Look at the RBI for example. Even Urjit Patel, who was handpicked by Modi after a Governor of Raghuram Rajan's stature was shown the doors, opposed the government's macabre endeavour to seize the Bank's Contingency Fund. He also opposed the Centre's Electoral Bonds scheme through an amendment to the RBI act, on the grounds that it could be misused through shell companies and "can subject the RBI to a serious reputational risk of facilitating money laundering transactions" . So he too had to resign. And then, perhaps for the first time in the history of RBI, a bureaucrat with hardly any training in economics or public finance – one whose only qualification seems to be absolute obedience - - was catapulted to the governor's chair. The grateful gentleman immediately handed over nearly Rs two lakh crore from the nation's contingency fund to the government and the lion's share of this huge amount was doled out to big corporates in the shape of various concessions and incentives.

No less scandalous has been the conduct of the Election Commission -- one of the most crucial constitutional bodies in a parliamentary democracy like India -- in recent years. During the 2019 parliamentary elections a series of “clean chits” were extended to Modi despite his provocative speeches that brazenly violated the model code of conduct. For instance, at a rally in Maharashtra, Modi invoked the armed forces in his speech while making an appeal to first-time voters. “Can your first vote be dedicated to those who carried out the airstrike [and] to the veer shaheed (brave martyrs) of Pulwama?” he said. The local electoral officers found Modi’s appeal to be “inconsistent” with the poll watchdog’s instructions, but the EC exonerated him. Earlier, it cleared Modi over another speech in Maharashtra in which he invoked religion. Election commissioner Ashok Lavasa had to register his protest and recuse himself from the Commission's meetings.

Under the stewardship of the CEC, the Commission is once again helping the BJP by scheduling the forthcoming assembly elections in West Bengal in eight phases. This would allow Modi and other Central leaders, on whom the party’s election campaign is critically dependent due to the absence of any marketable leader from within the state, to tour all districts and most constituencies. All these have seriously eroded public trust in the EC.

Like a free press and credible constitutional bodies, an independent Judiciary is regarded as a necessary component of a free, just, democratic society. However, India's reputation on this score has been considerably dented since the time of CJI Dipak Misra, who faced not just an impeachment motion in Parliament but, in a first, indictment by his colleagues in a Press Conference. Justice Ranjan Gogoi, who claimed a high moral ground in that press conference, encountered harsh criticism not just for many of his rulings in politically sensitive cases, but also for his highly authoritarian and disgraceful handling of an allegation of sexual abuse leveled against him by a lady working in the Court and, immediately after retirement, for accepting the post of a Rajya Sabha MP. And now we have a CJI who is constantly on the limelight for all the wrong reasons. He earnestly followed his immediate predecessors in condoning the huge human rights violations in Kashmir. While granting bail to Arnab Goswami who approached the top court under Article 32, he upheld the right of a citizen to approach the apex court as a fundamental right under Article 32 of the Constitution but, only weeks later, while hearing Kerala journalist Siddique Kappan’s habeas corpus plea, ruled that the Kerala Union of Working Journalists should have gone to the relevant High Court instead of the apex court, adding that the Supreme Court was “trying to discourage Article 32 petitions”.

To go beyond the CJIs, the abysmal failure - - if not reluctance -- of the top court in seriously adjudicating the electoral bonds case really poses a serious question involving its institutional integrity or constitutional morality. In whose interest is the Court refusing to prioritize this case over nearly four years even after conceding, during a short hearing in April 2019, that the case involved " weighty issues which have a tremendous bearing on the sanctity of the electoral process in the country"?

[1]. The US sedition law, rarely invoked, defines sedition as an act carried out "by force" (not just words spoken or written)against the government. And the UK -- the country of origin of our sedition law, so to say -- abolished its sedition law way back in 2009. The rationale was, as the then Parliamentary Under Secretary of State at the Ministry of Justice put it, “Sedition and seditious and defamatory libel are arcane offences - from a bygone era when freedom of expression wasn’t seen as the right it is today. …Freedom of speech is now seen as the touchstone of democracy, and the ability of individuals to criticise the state is crucial to maintaining freedom”. Clearly, under Narendra Modi India is going in the opposite direction, as evidenced by the rising graph of sedition cases in recent years.