Indian citizens and media have been terrorised enough with sedition. SC must end it now

Journalist Vinod Dua’s petition is an opportunity for the Supreme Court clearly tell police and lower courts what constitutes sedition and how to deal with defamation cases.

File image of activists displaying placards during a protest in New Delhi | Photo: Kamal Kishore | PTI

The Indian media is under severe stress and not just from the side-effects of the Covid-19 pandemic.

Between 25 March and 31 May, as many as 55 journalists were targeted, mostly by vengeful state governments and their supporters, for (un)covering facts about government handling of the coronavirus pandemic, according to a report by the Rights and Risks Analysis Group.

The report lists instances where journalists were arrested, physically assaulted, had FIRs  registered against them, and summons or show cause notices being issued, among others.

Among these are two FIRs — both filed by BJP functionaries, one in Delhi and another in Himachal Pradesh — against journalist Vinod Dua, which once again bring at the centre the British-era terror tool known as sedition and defamation laws, often (mis)used to stifle rightful dissent and journalism.

Vinod Dua’s case is an ugly reminder of how the police-petition system operates. For 35 days after the FIR’s registration in Himachal Pradesh, the police took no action. But as soon as Dua got some relief from the high court in a similar case registered against him in Delhi, the police in Himachal Pradesh swung into action and landed at his residence within hours, giving him less than 48 hours to turn up for investigation.

Dua’s petition in the Supreme Court, which has granted him protection from arrest while refusing to stay police investigation, is an opportunity for the top constitutional court of India to lay down clear guidelines on how law enforcement agencies and subordinate courts must deal with complaints alleging sedition.

At the same time, there is also an urgent need to have a re-look at the laws governing defamation. The browbeating of mediapersons has to stop and the onus is now on the Supreme Court.

Sedition is being misused

The British must be excused if they wonder why it was wrong for them to book freedom fighters under sedition if it is all right for democratically elected, ‘popular’ state governments in independent India to book their own citizens under this law for merely criticising shoddy governance or questioning a chief minister.

James Stephen, who brought the controversial clause on 25 November 1870 to deal with dissent by Indian freedom fighters, must be rolling with laughter in his grave, watching the twisted irony in governments in free India using his law to curb dissent and free speech by citizens.

The settled law is that criticism of the government, asking questions of the government, raising anti-India slogans, even being “anti-Indian”, as jurist Fali Nariman rightly wrote,  isn’t anywhere close to inviting charges of sedition.

But, in new India, we have the disturbing trend of sedition cases being foisted on young and old, mostly on specious grounds, while courts fail to intervene to protect citizens’ rights.

Nothing explains the sedition mess better than the case of student Amulya Leona, who spent four months in jail even as courts turned down her bail plea, only to be released on default bail since the police failed to file a chargesheet in the stipulated time.

Her crime: Saying ‘Pakistan Zindabad’ and ‘Hindustan Zindabad’ at an anti-Citizenship Amendment Act (CAA) rally.

It’s time for the Supreme Court to ask the Narendra Modi government to make public a list of countries that are officially India’s enemies. Else, how can it be okay for the Prime Minister and his government to engage with the leadership and bureaucracy of ‘enemy’ Pakistan but charge a young girl with sedition for wishing well for the two countries?

The Supreme Court must lay down clear guidelines as to what constitutes sedition and what does not. Because drunk-on-power politicians and the law enforcement agencies, working to please their political masters, will continue to ignore settled law on sedition. And this farce will flourish because the courts, including the Supreme Court, will continue refusing to administer even a rap on the knuckles to the erring police officers.

In Dua’s case, the Supreme Court has an opportunity to re-evaluate its judgments in Kedar Nath Singh versus State of Bihar, delivered nearly five decades ago, and Balwant Singh and another versus State of Punjab, delivered  over 15 years ago. It must issue stringent, legally binding guidelines to ensure the government and its agents – both within and outside the system – aren’t able to browbeat free media and dissenting voices by foisting sedition charges on them.

It is the court’s constitutional duty to ensure that between the citizen and the State, the scales of justice are always tilted in favour of the citizen when it comes to protecting the voice.

Most importantly, it needs to reassure the citizens, since the government is never going to do it, that “comments expressing disapprobation (disapproval, for want of a better word) of the admin­istrative or other action of the Government without exciting or attempting to excite hatred, contempt or disaffection”, do not constitute an offence under Sedition.

Defamation and Section 505 of IPC also need a re-look

Other frequently used tools that come in handy for governments and their minions in trying to browbeat dissenters and free press are criminal defamation and IPC Sections 268 (public nuisance), 501 (printing or engraving matter that is defamatory) and 505 (statements aimed at pushing our defence personnel to rise in mutiny or create alarm in public).

All these IPC sections have been used against Dua by the BJP leader in his complaint to the Himachal Pradesh Police. In a country like ours, where the process is punishment, invocation of so many sections has a serious, damaging effect on free speech. Add to it the fear of being saddled with a defamation case, and the scare turns real.

The Supreme Court must read down criminal defamation. In 2016, it had ruled that the law on criminal defamation was constitutional and required to ensure everybody understood that they do not have “an unfettered right to damage a reputation”.

Fair point. But, aren’t supporters of political leaders, allowed under settled law, to file random cases against opposition leaders and mediapersons for perceived defamation of their reputation, making a mockery of this?

If any political leader is aggrieved by anything negative or defamatory written about him or her, let the leader file the case. Why grant this highly misused privilege to their supporters?

Moreover, in a democracy, shouldn’t the bar on what constitutes defaming political leaders, including those in seats of power, be much higher than for an average person?

The 2016 Supreme Court judgment on the issue of constitutionality of criminal defamation also asserted that it couldn’t bring itself to “subscribe to the view that criminal defamation has a chilling effect on the freedom of speech and expression”.

It was an understatement then just as it is now. But, the Supreme Court could try and find some middle ground – don’t allow our thick-skinned politicians to misuse this provision through their supporters to browbeat a questioning media or citizens.

In 2014, the Law Commission of India had observed in its Consultation Paper on Media Laws, “… Threats of legal action with punitive damages under the laws of defamation lead to a ‘chilling effect’ on the publication of free and independent news articles and puts undue pressure on journalists and publishing houses”.

It’s time the terror tactics of defamation and sedition are put to an end and only the Supreme Court can do that. Will it, though?

The author is a senior journalist. Views are personal.