Law of Sedition in India

Law of sedition

In this article, Sudarshna Thapa of Law College Dehradun, Uttaranchal University discusses the enforceability of law of sedition in India.

Introduction

Every citizen has been given freedom to speak and express their views under Article 19(1)(a) of the Indian Constitution. However, this freedom is not absolute and some reasonable restrictions have been imposed on freedom of speech and expression under Article 19(2). But when a person does an act by his words, signs or representation which is held to be contemptuous towards the Government of India, then such act is punishable under section 124-A of Indian Penal Code, 1860. Sedition is an offence that criminalizes speech that is regarded to be disloyal to or threatening to the state.

The provision of Section 124A is very wide and it covers the act of defamation of the Government excluding any criticism in good faith of any particular measures or acts of administration.

Law of Sedition

The term ‘Sedition’ means “conduct or speech which results in mutiny against the authority of the state”. Law of Sedition deals with section 124A of IPC, 1860, is considered as a reasonable restriction on freedom of speech. It was drafted by Thomas Macaulay and introduced in 1870.

The following points describe the origin of sedition law:

  • Origin of Sedition law in India is connected to the Wahabis Movement of the 19th century.
  • This was an Islamic revivalist movement and was led by Syed Ahmed Barelvi.
  • Since 1830, the movement was active but in the wake of 1857 revolt, it turned into armed resistance, a Jihad against the British.
  • The British termed Wahabis as rebels and carried out military operations against Wahabis.

History

In British Era, Section 124A was not a part of Indian Penal Code, 1860. But this Section was inserted into IPC by the IPC (Amendment) Act, 1870. By an amending act of 1898, this provision was later replaced by Section 124A. According to the British Era Law, under the old IPC, “Exciting or attempting to excite feelings or disaffection was considered as Sedition”.

Meaning of Sedition under Section 124A of IPC, 1860

Whoever, by words, either spoken or written, or by signs, or by visible representation, or otherwise, brings or attempts to bring into hatred or contempt, or excites or attempts to excite disaffection towards the Government shall be punishable with Life Imprisonment”.[1]

Explanation I to the Section defines the scope of disaffection and in Explanation II and III indicate what under the English Law is not considered seditious intention.

What are the activities that are Seditious in nature?

In India, what constitutes as ‘Sedition’ is highly debated. As per the Indian Penal Code, for an act to be called “seditious”, it should have the following components:

  1. Any words, which can be either written or spoken, or signs which include placards/posters (visible representation)
  2. Must bring hatred/contempt/disaffection against the Indian Government
  3. Must result in ‘imminent violence’ or public disorder.[2]

As per the interpretation of the Court on Section 124-A of the Indian Penal Code, 1860 the following acts have been considered as “seditious”

  • Raising of slogans against the government – example – “Khalistan Zindabad” by groups. Raising of slogans by individuals casually once or twice was held not to be seditious. [3]
  • A speech made by a person must incite violence / public disorder for it to be considered as seditious [4]. Subsequent cases have gone to further interpret it to include “incitement of imminent violence”.
  • Any written work which incites violence and public disorder.

Sedition found in other Laws

The following are some laws which cover Sedition law:

  • Indian Penal Code, 1860 (Section 124A)
  • The Code of Criminal Procedure, 1973 (Section 95)
  • The Seditious Meetings Act, 1911 &
  • The Unlawful Activities (Prevention) Act (Section 2(o) (iii)).

How legal mechanism sets in motion

Sedition is considered as a high-value crime in the Indian Penal Code which is against the sovereignty of the country. It is a cognizable offence which allows arrest without a warrant and police can start the investigation without the permission of the court. There are some legal procedures regarding the charges of Sedition:

  1. Go to the Jurisdictional Police Station

It is the person’s legal right to file a case against the person who is committing an offence against the state such as Sedition. A person can file the complaint with the nearest Police Station where such offence when committed.

Lodging an F.I.R

The First Information Report (F.I.R.) is a written document which is prepared by the police organizations when they receive any information about the cognizable offence. In the case of seditious offence, it is filed by the person who has come to know about such offence and also can be filed by the police officer.

How Police take Cognizance

When any credible information is being registered by the complainant regarding the sedition offence, then it is the duty of Police Officer to take action for such complaint. Police have the right to arrest without warrant for such offence. There are some procedures when Police are able to arrest without warrant:

    1. When the seditious act is going on before the police inspector, District Magistrate or Executive Magistrate, then they can arrest such person without any warrant.
    2. If any information is received from another police officer for the arrest of the person committed a seditious offence, then the other police officer can arrest such person.
    3. F.I.R. when lodged against the person for the seditious offence.
    4. When a person who is being suspected of Sedition, then the police officer may arrest such person for the further investigation.

Investigation

After giving the information to a police officer in charge of a police station, the investigation is initiated. A magistrate can order a police officer in charge to investigate on cognizable offence such as Sedition. A magistrate is empowered to take cognizance upon receiving any complaint or upon a police report or upon information received from any person other than a police officer who is having knowledge of such offence is committed. A police officer may require to take the.. attendance of witnesses in writing.

Charge Sheet

After the completion of the investigation, police submits charge sheet which consists of F.I.R. copy, statement of the complainant, statement of witnesses etc.

Sedition: Disloyalty In Action

“Sedition” has been described as disloyalty in action. The object of sedition law is to induce discontent and insurrection, and stir up opposition to the Government and bring the administration of justice into contempt. Sedition is a crime against the society as it involves all those practices that result in conduct disturbance in the state or to lead to civil war which contempt the sovereign and promotes public disorder.[5]

Defences Available to a Person Charged With Sedition

To get the exemption from Criminal Liability, the following are the defences:

  1. That he did not make the sign or representation or not speak or write the words, or not do any act in question.
  2. He did not attempt into the contempt or attempt disaffection.
  3. Such disaffection should not be towards the Government.

Sedition and Article 19(1)(a) of the Indian Constitution

The Concept of Free Speech has attained global importance and all have supported it as a basic fundamental right of a human being. In India, such rights are provided under Part-III and Article 19 of the Indian Constitution. The said right has no geographical indication because it is the right of the citizen to gather information with others and to exchange thoughts and views within or outside India.

Courts have been given the power to act as guarantors and protectors of the rights of the citizen. Article 19(1)(a) secures the ‘freedom of speech and expression’ but it has been bound by the limitation which has been given under Article 19(2) which states the permissible legislative abridgement of the right of free speech and expression.

In Niharendu Dutt’s case [6], for sedition, the Federal Court had taken chance to interpret the Section 124A of the IPC in alignment with British Law. It had ruled that tendency to disturb public order was an essential element under Section 124A. The Privy Council held that the incitement to violence or a tendency to disturb public order was not necessary under section 124A.

In Tara Singh v. State[7], the validity of Section 124A of the IPC was directly in issue. In this case, it curtailed the freedom of speech and expression, so the East Punjab High Court declared this section void.

By the Constitution (First Amendment) Act, 1951, two changes were introduced relating to freedom of speech and expression, are:

  1. It considerably widened the latitude for restrictions on free speech by adding further grounds;
  2. The restriction imposed on Article 19(1)(a) must be reasonable.

Therefore, the question now arises of whether Section 124A of IPC is in conflict with Article 19(1)(a) or not. It has been reflected by the following points:

  1. Section 124A of the IPC is ultra vires the constitution in as much as it infringes the fundamental right of freedom of speech in Article 19(1)(a) and is not saved by the expression “in the interest of public order”.[8]
  2. As the expression “in the interests of public order” has a wider connotation and should not be confined to only one aspect of public order, then the Section 124A is not void.
  3. Section 124A IPC is partly void and partly valid. In Indramani Singh v. State of Manipur [9], it was held that Section 124A which seeks to impose restrictions on exciting mere disaffection is ultra vires, but the restriction imposed on freedom of speech and expression covered under Article 19(2) can be held intra vires.

In 1959, Allahabad High Court declared that Section 124A was ultra vires to Article 19(1)(a) of the Constitution.

Indian Freedom Fighters who were charged with Sedition during the Freedom Struggle

Mahatma Gandhi was charged with sedition

Gandhiji had written three ‘politically sensitive’ articles in his weekly journal Young India, which was published from 1919 to 1932 so that he was jailed on the charges of sedition. He was sentenced to a six-year jail term.

Three charges were imposed on him:

  1. Tampering with loyalty;
  2. Shaking the manes and
  3. Attempt to excite disaffection towards the British Government.

He wrote the first part of his autobiography during his imprisonment- The Story of my Experiments with Truth- and about the Satyagraha movement in South Africa. He was released after two years as he was suffering from appendicitis.

Bal Gangadhar Tilak was convicted under this [10]

Bal Gangadhar Tilak was charged with sedition on two occasions, are:

  1. Firstly, his speeches that allegedly incited violence and resulted in the killings of two British Officers for which he was charged with Sedition in 1897. He was convicted but got bail in 1898.
  2. Secondly, he was defending the Indian revolutionaries and called for immediate Swaraj or self-rule in his newspaper ‘Kesari’ for which he was convicted under sedition and sent to Mandalay, Burma from 1908 to 1914.

Take on abolishing the law of sedition – Should the Indian legal system abolish the laws punishing seditious activities?

In today’s scenario, the sedition law expects that citizens should not show enmity, contempt towards the Government established by the law.

  • There are some dark areas which lies between actual law and its implementation.
  • Thus the laws need to amend those dark areas.
  • In India, there are so many divisive powers acting together in which such laws are necessary evils in a country like India.
  • It is the need for such law that those activities which are promoting violence and public disorder should be stopped

Disaffection and the State

  • A seminar titled with ‘Azadi, the Only Way’ was organized by the Committee for the release of a Political prisoner in Srinagar.
  • The controversy arises when Sedition was charged against Arundhati Roy, Syed Ali Shah Geelani, Varavara Rao and others who spoke at the said Seminar.
  • Media reported that the Central Government was not in favour of initiating proceedings in this case.
  • There are reports though of cases having been filed in New Delhi.
  • Intimidation of cases being filed in other parts of the country against Roy, Geelani and other who spoke at the seminar.

Famous Trials of Sedition

  1. Jogendra Chunder Bose [11]

Jogendra Chunder Bose was an editor of Bangobasi. He was charged with Sedition for voicing against Age of Consent Bill, 189

Cartoonist Aseem Trivedi

During a rally of Anti-Corruption crusader Anna Hazare in Mumbai, he had been accused of putting up banners mocking the constitution and posting the same on his website. He was charged under Section 124A of IPC, Section 66A of Information Technology Act and Section 2 of Prevention of Insults to National Honour Act.

Kashmiri Students

60 Kashmiri Students were cheering for Pakistan in a Cricket Match against India. So they were charged with Sedition in March 2014.

Folk Singer S Kovan

He was charged with sedition for two songs criticising the state government for allegedly profiting from state-owned liquor shops at the expense of the poor.

Binayak Sen

He was a pediatrician by profession and was allegedly supporting Naxalites. For which he was charged with Sedition by Chhattisgarh Government.

Akbaruddin Owaisi

On December 22, 2012, he purported hate speech at Nirmal. He was slapped with the charge of sedition by the District Police of Karimnagar.

Kanhaiya Kumar, Student of JNU [12]

JNU Student Leader, Kanhaiya Kumar was arrested in February 2016 on the charge of sedition. He was arrested for inciting violence through unlawful speech, allegedly spread not all over India but also across the world. This arrest has raised political turmoil in the country by which academicians and activists protesting against this move by the Government. On March 2, 2016, the videos purporting to show this activity were found to be fake and he was released after three weeks in jail.

Constitutionality of Law of Sedition in India

Kedarnath Singh v. State of Bihar [13]

  • It was held that the law is constitutional and covered written or spoken words that had the implicit idea of subverting the Government by violent means.
  • With an intention to create public disorder, Citizens can criticize the Government as long as they are not inciting people to violence against the Government.
  • Supreme Court upheld the validity of Section 124A, it limited its application to acts involving intention or tendency to create disorder, or a disturbance of law and order, or incitement to violence.

Balwant Singh and Anr v. State of Punjab [14]

  • After the assassination of Prime Minister Indira Gandhi, the accused had raised the slogan “Khalistan Zindabad” outside a cinema hall.
  • It was held that two individuals casually raising slogans could not be said to be exciting disaffection towards the Government. Section 124A would not apply to the circumstances of this case.

Romesh Thapar v. State of Madras [15]

  • The petitioner contended before the Supreme Court that the said order of banning his paper ‘Cross Roads’ by the Madras State.
  • It has contravened his Fundamental Right of freedom of speech and expression conferred on him by Article 19(1) of the Constitution.
  • The Supreme Court held that the Article 19(2) where the restriction has been imposed only in the cases where problem to public security is involved. Cases where no such problem could arise, it cannot be held to be constitutional and valid to any extent.
  • Supreme Court quashed the order of Madras State and allowed the application of the petitioner under Article 32 of the Constitution.

The following acts are not considered seditious

  • Improvement or alteration by lawful means with the disapproval of the measures of government.
  • The strong words which are expressing disapprobation of actions of the Government and not encouraging those feelings which generate public disorder by acts of violence.
  • To improve the condition of the people or to secure the alteration of those acts by lawful means without the feelings of enmity and disloyalty which involve excitement to public disorder or the use of violence.

National Crime Records Bureau Statistics on Sedition

When all the crimes are committed against the state or government, it disturbs public order. According to the data from 2014-2016 of NCRB, 165 people were arrested on the charge of sedition. During 2014, 47 cases were reported under sedition. Of the total sedition cases, Jharkhand and Bihar have reported 18 cases and 16 cases respectively. Besides, 5 cases in Kerala, 2 cases each in Andhra Pradesh, Assam, Chhattisgarh and Himachal Pradesh were also reported during 2014.

According to the NCRB, the latest crime data shows the cases of sedition fell from 2014 to 2015. A total of 30 sedition cases were registered in 2015, less than in 2014. Tamil Nadu topped the list for committing the crime against state including sedition. Of the 6,986 cases were registered in 2016, 1,827 cases were reported from Tamil Nadu, followed by U.P. 1,414, Haryana 1,286 and Assam 343 cases. In the last three years across the country, 165 people were arrested on the charge of sedition. According to the reports of NCRB, 111 people were arrested in four state i.e., 68 in Bihar, 15 in Haryana, 18 in Jharkhand and 10 in Punjab.

How to Register Cyber Crime Complaint With Cyber Cell of Police – Online Complaint Procedure

cyber crime complaint

Cybercrime is a criminal activity which is carried on by the use of computers and the Internet. Some of the common cyber crimes are hacking, cyber stalking, denial of service attack(DoS), virus dissemination, software piracy, credit card fraud & phishing.

To tackle the issue of cyber crimes, CIDs (Criminal Investigation Departments) of various cities opened up Cyber Crime Cells in different cities. The Information Technology Act of India states clearly that when a cyber crime has been committed, it has a global jurisdiction. and hence a complaint can be filed at any cyber cell.

Step by Step Procedures to File a Cyber Crime Complaint

Step 1 -One may need to provide name, mailing address & telephone number along with an application letter addressing the head of a cyber crime investigation cellwhen filing a complaint.

Step 2-One must provide certain documents in order to register a complaint. List of documents varies with the type of cyber crime.

Documents / Information You Need to Provide while Filing a Hacking Complaint

In the case of hacking, the following information should be provided:

  1. Server Logs
  2. A copy of the defaced web page in soft copy as well as hard copy format, if victim’s website is defaced
    If data are compromised on the victim’s server or computer or any other network equipment, soft copy of original data and soft copy of compromised data.
  3. Access control mechanism details i.e.- Who had the access to the computer or email of the victim?
  4. List of suspects if the victim is having any suspicion on anyone.
  5. All relevant information leading to the answers to following questions.

 

  • What is compromised?
  • Who might have compromised the system?
  • When was the system compromised?
  • Why might have been the system compromised?
  • Where is the impact of the attack-identifying the target system from the network?
  • How many systems have been compromised by the attack?

Documents / Information You Need to Provide while Filing an Email Related Cyber Crime Complaint

In the case of e-mail abuse, vulgar e-mail, etc. the following information should be provided:

  • The extended headers of offending e-mail and
  • The offending e-mail from

 Contact information of different Cyber Cells

 

 AssamCID HQ,Dy.SP.

Assam Police

contact Details

Ph: +91-361-252-618

+91-9435045242

E-mail: ssp_cod@assampolice.com

Chennai
Address:
Asst. Commr. of Police,
Cyber Crimes Cell,
Vepery, Chennai 7
Contact Details: 04423452348
04423452350
E-mail id: cybercrimechn@yahoo.comFor Rest of Tamil Nadu,Address: A-Wing, III rd Floor,
Rajaji Bhawan, Besant Nagar,
Chennai-600090
ph: 044-24461959
24468889
24463888E-mail id: hobeochn@cbi.gov.in
Bangalore 
(for whole of the Karnataka)
Address:
Cyber Crime Police Station
C.O.D Headquarters,
Carlton House,
# 1, Palace Road,
Bangalore – 560 001
Contact Details:
+91-80-2220 1026
+91-80-2294 3050
+91-80-2238 7611 (FAX)Web site: http://www.cyberpolicebangalore.nic.in/
Email-id:
 ccps@blr.vsnl.net.inccps@kar.nic.in
Hyderabad
Address:
Cyber Crime Police Station
Crime Investigation Department,
3rd Floor, D.G.P. office
Lakdikapool,
Hyderabad – 500004Contact Details:
+91-40-2324 0663
+91-40-2785 2274+91-40-2785 2040
+91-40-2329 7474 (Fax)Web site:http://www.cidap.gov.in/cybercrimes.aspx
E-mail id: cidap@cidap.gov.ininfo@cidap.gov.incybercell_hyd@hyd.appolice.gov.in
Delhi
CBI Cyber Crime Cell:
Superintendent of Police,
Cyber Crime Investigation Cell
Central Bureau of Investigation,
5th Floor, Block No.3,
CGO Complex,
Lodhi Road,
New Delhi – 3Contact Details:
+91-11-4362203, 011-26851998
011-26515229, +91-11-4392424Web site: http://cbi.nic.in/Asst. Commissioner of Police,
Cyber Crime Cell,
EOW, Crime Branch,
2nd Floor,
Police Training School,
Malaviya Nagar,
New Delhi-110 017
E-Mail: 
cbiccic@bol.net.in,dcp-eow-dl@nic.in
Thane
Address:
3rd Floor, Police Commissioner Office
Near Court Naka,
Thane West,
Thane 400601.Contact Details: +91-22-25424444Web site: www.thanepolice.orgE-Mail: police@thanepolice.org
Pune
Deputy Commissioner of Police(Crime)
Office of the Commissioner Office,
2, Sadhu Vaswani Road,
Camp,Pune 411001
Contact Details:
+91-20-26123346+91-20-26127277
+91-20-2616 5396
+91-20-2612 8105 (Fax)Website:
www.punepolice.gov.in
E-Mail:
 crimecomp.pune@nic.inpunepolice@vsnl.com
Gujarat
DIG, CID, Crime and Railways
Fifth Floor
Police Bhavan
Sector 18, Gandhinagar 382 018Contact Details:
+91-79-2325 4384+91-79-2325 0798
+91-79-2325 3917 (Fax)
JharkhandIG-CID,Organized Crime

Rajarani Building,Doranda Ranchi,

834002

Ph: +91-651-2400 737/ 738

E-mail: a.gupta@jharkhandpolice.gov.in

 

 Mumbai 
Address:
Cyber Crime Investigation Cell
Office of Commissioner of
Police office,Annex -3 Building,
1st floor, Near Crawford Market,
Mumbai-01.
Contact Details:
+91-22-22630829
+91-22-22641261
Web site: http://www.cybercellmumbai.com
E-mail id: officer@cybercellmumbai.com
 HaryanaCyber Crime and Technical Investigation Cell,

Joint Commisioner of Police

Old S.P.Office complex,Civil Lines

Gurgaon

E-mail: jtcp.ggn@hry.nic.in

 Kerala

Hitech Cell

Police Head Quarters

Thiruvananthapuram

Contact Details

Ph: +91-471 272 1547

+91-471 272 2768

E-mail: hitechcell@keralapolice.gov.in

JammuSSP,Crime

CPO Complex,Panjtirthi

Jammu-180004

Contact Details

Ph: +91-191-257-8901

E-mail: sspcrmjmu-jk@nic.in

OdishaCyber Crime Police Station,
CID, Crime Branch, Odisha, Cuttack-753001
Ph. No.0671-2305485
E-mail ID:- sp1cidcb.orpol@nic.in
MeghalayaSCRB,Superintendent of Police

Meghalaya

Ph: +91 98630 64997

E-mail: scrb-meg@nic.in

Punjab

Cyber Crime Police Station

DSP Cyber Crime,

S.A.S Nagar,Patiala,

Punjab

Ph: +91 172 2748 100

BiharCyber Crime Investigation Unit

Dy.S.P.Kotwali Police Station, Patna

Ph: +91 94318 18398

E-mail: cciu-bih@nic.in

West BengalCID, Cyber Crime
West Bengal
Ph: +9133 24506163
e-mail:occyber@cidwestbengal.gov.in
Uttar Pradesh

Cyber Complaints Redressal Cell,
Nodal Officer Cyber cell Agra,
Agra Range 7,Kutchery Road,
Baluganj,Agra-232001
Uttar Pradesh
Ph:919410837559
e-mail: info@cybercellagra.com

Himachal PradeshSuperintendent of Police (cyber Crime)

State CID

Shimla- 171002, Himachal Pradesh

Ph: 0177- 2621714 (Ext. 191), 0177- 2627944 (direct)

Email- cybercell-hp@nic.in

UttaraKhandSpecial Task Force Office
Sub Inspector of Police, Dehradoon
Ph: +91 135 2640982
+91 94123 70272
e-mail:dgc-police-us@nic.in
 

The Constitution as a Living Document

A party or a government which comes to power swearing on the constitution but does not share its vision is not only committing perjury, but is profoundly anti-republic.

Credit: Wikimedia Commons

The republic has never felt more endangered than it does at 69. When Union minister Anant Kumar Hegde let slip the public secret that the BJP/RSS government is here to change the constitution, the problem is not that the constitution cannot and should not be changed, but what direction that change will take, and whether it will destroy the very basis of the republic or strengthen it.

Justice, liberty, equality, fraternity – these progressive values in the constitution are the last defence of the republic. It is clear, however, that these are not values shared by the RSS from the moment of its inception and that indeed, the RSS regards these as an obstacle to realising its own vision of the country.

In the last couple of years, the ABVP, supported by pliant university authorities, has stopped several campus events which explicitly set out to celebrate the constitution or Indian democracy, such as one at the Delhi School of Economics in August 2017 and another at Allahabad in September 2017, titled Jashn-e- Samvidhan. It is only an organisation which is itself deeply anti-national and anti-democratic that can object to others celebrating the constitution or democracy.

If people are to be reduced to their caste or religious identity, as Hegde, the Karni Sena, and various other fronts of the RSS want, it is not only the term secularism which will go, but equality, liberty and fraternity as well. For secularism is nothing but the equality of all religions in the public sphere and fraternity across religions and caste as practiced by individuals in their public and personal capacities.

Authoring the constitution

The constitution has never been a frozen document, and it has always had multiple authors. Notwithstanding the sterling role played by the drafting committee and Babasaheb Ambedkar, the constitution as it exists today is a product of interactions between three elements: the text, the courts and above all, ‘the people’.

Even at the time it was framed, the text was not a closed document. There were at least four elements that informed the making of the constitution – existing administrative provisions such as those embodied in the Government of India Act of 1935, internationally accepted constitutional principles, the ideals of the freedom struggle, including universal adult suffrage, and the events that were taking place in a country slowly emerging out of World War II, famine and above all, Partition. As the chronicler of the constitution, Granville Austin, famously wrote, “Fundamental rights were to be framed among the carnage of fundamental wrongs.”

At one level, the similarities with the 1935 Act make the constitution appear almost pre-ordained. But the final product came out of sometimes deeply-contested arguments between deeply-opposed individuals. Not every shade of opinion was equally represented, especially the Communists, and the franchise on the basis of which members were elected was less than 30% of the adult population.

Chauvinism was rife, for instance, when Shri RV Dhulekar declared that he would only speak in Hindi as “People who do not know Hindustani have no right to stay in India” or when Muslim members were heckled, for example, on their demand for proportional representation. The great adivasi leader Jaipal Singh was taunted about his elite lifestyle, and simultaneously accused of being parochial, forcing him to list the multiple languages he could speak and the tribal areas he had visited. Women like Sarojini Naidu were courteously infantilised, but also managed to turn the tables on their male colleagues.

In all, the constituent assembly was just as much as a space of conflict and collegiality, as many current assemblies, and its hallowed status in the country’s history should not blind us to the fact that real individuals and not mythic heroes populated it.

The final shape the constitution took was often weaker than it could have been, and this is very visible in the 5th Schedule, where the original proposal gave far more power to the Tribes Advisory Council than it currently has (where the council can only consider matters referred to it by the governor). In response to Jaipal Singh’s demand that the powers of the Tribes Advisory Councils be preserved, KM Munshi declared that the tribes could not be allowed to advise on questions of law and order or forests.

But those are precisely the issues that have subsequently agitated adivasi movements. Had Jaipal Singh’s suggestion to use the term adivasi in the constitution not been rejected, we would not have had absurd judgments like the one in Prem Mardi vs Union of India, 2015, where the judge rejected the demand to ban MSG 2 for glorifying the killing of adivasis on the grounds that the constitution did not mention the term adivasi anywhere.

The constitution makers had much to answer for, including the neglect of villages. But what is equally amazing is how much they got right, especially in terms of fundamental rights, universal suffrage and a host of other features.

And where they missed out, the citizenry has intervened to expand the constitution in meaningful directions.

The courts

Much of the work on the Constitution, such as Granville Austin’s Working a Democratic Constitution or the Oxford Handbook of the Indian Constitution, has focused on the landmark judgments by which the courts have interpreted and extended the constitution.

In particular, we recall with a sense of relief and gratitude the outcome of the 13-judge bench which decided Kesavanand Bharati upholding a ‘basic structure’ to the constitution, or the several PILs which have extended the Right to Life to life with dignity. But the constitutional statements of the courts, as we all know, are themselves a medley of factors.

The most important, perhaps, is the text of the constitution itself, which in principle at least, shapes judicial activism. The caste, class and gender backgrounds of the judges matter, even though in India we have relatively little information on how these influence their judgments, at all levels of the judiciary, not just the Supreme Court. At the same time, there is a certain kind of common habitus that professional training develops in them. The text of the constitution and a certain professional fidelity to interpreting its spirit means that judges often go beyond their background in remarkable ways.

The recent judges’ press conference was such a remarkable event, precisely because of the psychological hurdles that judicial professionalism imposes. If judges who are trained to be silent start speaking, we must assume that things are seriously amiss for them to have taken this step. Finally, the court’s contribution to shaping the constitution depends heavily on the kind of cases that are brought before them, even though there are also many instances of lawyers (and even judges) mobilising petitioners when they want certain principles argued.

And this is where the people come in – for without petitioners to bring a complaint against Aadhaar, against Section 377, for the right to food, or for the freedom of expression, the judges would have no occasion to exercise their craft. Rohit De’s work on the early years of the Supreme Court provides a fascinating glimpse into how people engaged with the constitution and transformed it. It is true that often the courts are closed off to the poor, but citizens have a responsibility to try and force the judiciary and legislature to attend to sections of the public or take up issues that they would not otherwise have cared about.

The people

The role of ‘the people’ in preserving and extending the constitution, however, goes far beyond bringing cases to court, or electing representatives once every five years. While the ideologies and programmes of successive governments are clearly important to the functioning of the constitution, through the various amendments they have brought in (land reform, abolition of privy purses, 73rd and 74th amendment etc.), in the end, they seek legitimacy for their changes in the name of public opinion.

The ‘public’ is clearly not homogenous, and while corporates can quietly get an SEZ act passed, other citizens have to struggle for years to get an act on the Right to Information, or the Right to Education. Some states are almost handed over to their elites on a platter like Chhattisgarh, while others like Jharkhand, Uttarakhand and Telangana have been long in the making.

When Dalit groups memorialise their caste histories as in Bhima Koregaon, youth are rounded up and arrested for having taken part, compared to the kid gloves with which dominant castes are treated. When it comes to the constitution, however, it is important to remember that the goal of Dalit or adivasi mobilisation is usually towards greater equality.

On the other hand, when traditionally dominant communities take umbrage at imagined slights or demand reservation for themselves, they do so in order to perpetuate inequality. Not all mobilisations are, therefore, in keeping with the values of the constitution, but the constitution has grown because all of these issues have been debated. In some respects like the Citizenship Act, which now makes citizenship conditional on having an Indian parent, rather than on birth alone, the constitution has actually shrunk from the vision of its founders.

As Ranabir Sammadar points out in an essay titled “Sovereignty and the dialogic subject”, when governments say that they will talk to insurgents in the Northeast or Kashmir only “within the framework of the constitution” they tend to forget that the constitution is not just a set of administrative provisions but also embodies the spirit of dialogue. The year 1950 cannot and does not represent a closure on what can or cannot be discussed, since the constitution is a living document.

Ultimately, the only thing that is not negotiable in the constitution is the hope for justice, equality, liberty and fraternity. A party or a government which comes to power swearing on the constitution but does not share this vision, and which believes in the supremacy of one religion or one language, is not only committing perjury, but is profoundly anti-republic.

Criminal Law

Criminal Defamation and the Supreme Court’s Loss of Reputation

The Supreme Court’s refusal, in Subramanian Swamy v. Union of India, to strike down the anachronistic colonial offence of criminal defamation is wrong. Criminalising defamation serves no legitimate public purpose; the vehicle of criminalisation – sections 499 and 500 of the Indian Penal Code, 1860 (IPC) – is unconstitutional; and the court’s reasoning is woolly at best.

Politics and censorship

Two kinds of defamation actions have emerged to capture popular attention. First, political interests have adopted defamation law to settle scores and engage in performative posturing for their constituents. And, second, powerful entities such as large corporations have exploited weaknesses in defamation law to threaten, harass, and intimidate journalists and critics.

The former phenomenon is not new. Colonial India saw an explosion of litigation as traditional legal structures were swept away and native disputes successfully migrated to the colonial courts. These included politically-motivated defamation actions that had little to do with protecting reputations. In fact, defamation litigation has long become an extension of politics, in many cases a new front for political manoeuvring.

The latter type of defamation action is far more sinister. Powerful elites, both individuals and corporations, have cynically misused the law of defamation to silence criticism and chill the free press. By filing excessive and often unfounded complaints that are dispersed across the country, which threaten journalists with imprisonment, powerful elites frighten journalists into submission and vindictively hound those who refuse to back down. Such actions are called Strategic Lawsuits against Public Participation (SLAPPs) which Rajeev Dhavan warns have created a new system of censorship.

Petitions and politicians

Defamation originates from the concept of scandalum magnatum – the slander of great men – which protected the reputations of aristocrats. The crime was linked to sedition, so insulting a lord was akin to treason. In today’s neo-feudal India, political leaders are contemporary aristocrats. Investigating them can invite devastating consequences, even death. Most of the time, they retaliate through defamation law. Since the criminal justice system is most compromised at its base, where the police and magistrates directly interact with people, the misuse of criminal defamation law hurts ordinary citizens.

This is different from politicians prosecuting each other since they rarely, if ever, suffer punishment. Of all the petitions before the Supreme Court concerning the decriminalisation of defamation, the three that received the most news coverage were those of Subramanian Swamy, Rahul Gandhi, and Arvind Kejriwal. They are all politicians, their petitions were made in response to defamation complaints filed by rival politicians. On the other hand, there are numerous cases which politicians have filed against private members of civil society to silence them. When presented with these concerns, the Supreme Court simply failed to seriously engage with them.

The architecture of defamation

Defamation has many species, a convoluted history, and complex defences. Defamation can be committed by the spoken word, which is slander, or the written word, which is libel. The historical distinction between these two modes of defamation is based on the permanence of written words. Before the invention of the printing press, the law was chiefly concerned with slander. But as written ideas proliferated through mass publication technologies, libel came to be viewed as more malevolent and the law visited serious punishments on writers and publishers.

Such a distinction presumes a literate readership. In largely illiterate societies, the spoken word was more potent. This is why films and radio have long attracted censorship and state control in India. Before mass publishing forked defamation into libel and slander, there existed only the historical crime of libel. Historical libel had four species: seditious libel, blasphemous libel, obscene libel, and defamatory libel.

Seditious libel, which has been repealed in Britain, prospers in India as the offence of sedition which is criminalised by section 124A of the IPC. Blasphemous libel, repealed in Britain, fares well in India as the offence of blasphemy under section 295A of the IPC. Obscene libel, as the offence of obscenity, is criminalised by section 294 of the IPC. And defamatory libel, repealed in Britain, which is the offence of criminal defamation that the Subramanian Swamy case upheld, continues to exist under section 499 of the IPC.

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Confusing harms

Of the many errors that litter the Supreme Court’s May 13, 2016 judgment in the Subramanian Swamy case, perhaps the most egregious is the failure to recognise the harm that criminal defamation poses to a healthy civil society in a free democracy. At the crux of this mistake is the Supreme Court’s failure to distinguish between private injury and social harm. Two people may, in their private capacities, litigate a civil suit to recover damages if one feels the other has injured her reputation. This private action of defamation was not in issue before the court.

On the other hand, by criminalising defamation, why should the state protect the reputations of individuals while expending public resources to do so? This goes to the concept of crime. When an action is serious enough to harm society it is criminalised. Rape strikes at the root of public safety, human dignity, equality, and peace, so it is a crime. A breach of contract only injures the party who was expecting the performance of contractual duties; it does not harm society, so it is not a crime. Similarly, a loss of reputation, which is by itself difficult to quantify, does no harm to society and so it should not be a crime.

Truth and the public good

It may be argued, and the Supreme Court hints, that at its fundament, society is premised on the need for truth; so lies should be penalised. This is where defamation law wanders into moral policing. In Indian and European philosophies, truth is consecrated as a moral good. The Supreme Court quotes from the Bhagavad Gita on the virtue of truth. But while quotes like these are undoubtedly meaningful, they have no utility in a constitutional challenge. In reality, society is composed of truth, lies, untruths, half-truths, rumour, satire, and a lot more. In fact, the more shades of opinion there are, the livelier that society is. So lies should not invite criminal liability.

If we concede the moral debate and arrive at a consensus that the law must privilege truth over lies, then truth alone should be a complete defence to defamation. If the law criminalises untruth, then it must sanctify truth. That means when tried for the crime of defamation, a journalist must be acquitted if her writing is true. But the law and the Supreme Court require more. In addition to proving the truth, the journalist must prove that her writing serves the public good. So speaking truth is illegal if it does not serve the public good.

In fact, truth has only recently been recognised as a defence to defamation, albeit not a complete defence. This belies the social foundations of criminal defamation law. The purpose of the offence is not to uphold truth, it is to protect the reputations of the powerful. But what is reputation? The Supreme Court spends 25 pages trying to answer this question with no success. Instead, the court declares that reputation is protected by the right to life guaranteed by Article 21 of the Indian Constitution but it offers no sound reasoning to support this claim. The court also fails to explain why the private civil action of defamation is insufficient to protect reputation.

The constitution and constitutionalism

There are two core constitutional questions posed by the Subramanian Swamy case. They are:

  • Does the crime of defamation fall within one of the nine grounds listed in Article 19(2) of the constitution; and
  • Are sections 499 and 500 of the IPC which criminalise and punish defamation reasonable restrictions on the right to free speech?

Article 19(2) contains nine grounds in the interests of which a law may reasonably restrict the right to free speech. Defamation is one of the nine grounds, but the provision is silent as to which type of defamation, civil or criminal, it considers. However, B.R. Ambedkar’s comments in the Constituent Assembly arguably indicate that criminal defamation was intended to be a ground to restrict free speech.

The answer to the second question lies in measuring the reasonableness of the restriction criminal defamation places on free speech. If the restriction is proportionate to the social harm caused by defamation, then it is reasonable. However, restating an earlier point, criminalising defamation serves no legitimate public purpose because society is unconcerned with the reputations of a few individuals. Even if society is concerned with private reputations, the private civil action of defamation is more than sufficient to protect private interests. Further, the danger that current criminal defamation law poses to India’s free speech environment is considerable. Dhavan says: “Defamation cases [are] a weapon by which the rich and powerful silence their critics and censor a democracy.”

The Subramanian Swamy case highlights several worrying trends in India’s constitutional jurisprudence. The judgment is delivered by one judge speaking for a bench of two. Such critically significant constitutional challenges cannot be left to the whims of two unelected and unaccountable men. Moreover, from its position as the guarantor of individual freedoms, the Supreme Court appears to be in retreat. This will have far-reaching and negative consequences for India’s citizenry. If the court fails to enhance individual freedoms, what is its constitutional role? The judiciary would do well to stay away from policy mundanities and focus on promoting India’s democratic project, lest it injure its own reputation.

Judge Loya Case

Supreme Court Bench Headed by CJI to Hear Judge Loya Case

New Delhi: The Supreme Court bench headed by Chief Justice Dipak Misra will hear two petitions on Monday, seeking independent probe into the death of Special CBI Court judge B.H. Loya who was holding trial in the Sohrabuddin Sheikh fake encounter case.

Judge B.H. Loya. Credit: Facebook

The supplementary cause list issued on Saturday lists the petitions by social activist Tehseen Poonawala and Maharashtra-based journalist Bandhuraj Sambhaji Lone before the bench of the CJI, and justices A.M. Khanwilkar and D.Y. Chandrachud.

Earlier, the two petitions were being heard by the bench headed by justice Arun Mishra.

The allocation of Loya’s matter to a relatively junior bench was one of the bones of contention raised by four rebel judges in their unprecedented press conference on January 12.

The bench headed by Arun Mishra on January 17 recused itself from hearing the matter after the bench directed that all the documents furnished by the Maharashtra government to the court relating to the death of Loya be shared with the petitioners seeking independent probe.

The case came into limelight as BJP president Amit Shah was allegedly one of the accused in the case. Shah was later discharged by the special CBI court trying the Sohrabuddin Sheikh case.

Custodial Violence in India

In spite of the fact that every segment of the society feels concerned about custodial violence, over the years it has remained unabated. It seems to be on rise every year, in spite of the fact that rate of literacy has increased and the people have become aware about their rights and duties. The main arm of the criminal justice system that deals with people in custody is police. It will, therefore, be necessary to find out ailments, which govern this agency resulting into abuse of those who are in their custody. In this section, an attempt is made to find out as to what lies at the root of the problem of custodial violence. For this it is essential to study the conditions under which police works and to find out their mode of operation in dealing with the accused persons. The basic causes for Custodial violence can be grouped in the following categories: –

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1. Work Pressure
The police in India has to perform a difficult and delicate task in view of the deteriorating law and order situation, riots, political turmoil, student unrest, terrorist activities, increasing incidence of bribery, corruption, tax evasion , violation of fiscal laws, smuggling and money-laundering. Organised criminal gangs are gaining strong roots in the society. They use ultra-modern weaponry, explosives and many other devices of committing crimes without leaving any evidence of their crime many a time. Similarly, dealing with insurgent and terrorist groups is also completely different from dealing with ordinary criminals. This category of criminals is well-trained, hardened and equipped with ultra-modern weapons. An ordinary policeman carrying a small revolver or even a gun ordinarily provided to him is invariably no match to them. Indeed, a resourceful criminal can escape the clutches of law almost indefinitely. The Indian police today finds itself handicapped not in its numerical strength but its inadequate infrastructural facilities like modern weaponry and equipment, transport and communication network and, more importantly, need-based training which is of paramount importance to make it more efficient and effective instrument of law enforcement.

A very important reason for continuing brutal behaviour by the Police is pressure. The sources of pressure are several, but basically they relate to performance or output beyond the narrow confines of police role, in spite of constraints on adequate role performance. Policemen have to deal with crime and disorder not on bits of paper but in the raw, directly. This generates lot of pressure, both from the people and the government. In addition to the constraints of the system are the constraints arising out of its actual operation. The outcome of Police efforts as they lead to deterioration of evidence and thereby reduces the chance of conviction in a court of law. Medical and legal reports are often received very late. TIP’s (Test Identification Parade) are often delayed considerably, before which the accused are bailed out, thus defeating the purpose of holding such a parade. In our accusatorial system, a person is presumed innocent unless his guilt is proved beyond reasonable doubts and thus, the degree of proof, which is required on part of prosecution, to secure conviction is exceedingly high. Thus, in a trial the chances of conviction are roughly one out of four. But results have to be achieved as quickly as possible or else the officer is transferred. So a shortcut is required to achieve result and for them, the UP Police Commission 1970-71 observed,

“An accused or suspect may be kept under Police custody for a maximum period of 24 hours as per law. In the meanwhile, a great deal of information remains to be elicited from the suspect especially in offences involving property, on recovery of which the success of prosecution greatly depends. Whenever the investigating officer finds it practicable, he records arrest after quite a few days of unrecorded and illegal detention. Thus the pressure of securing maximum information in the available time implies the investigating officer to use shortcut methods.”

2. Greed for Money
This is the most hateful reason for custodial torture and one that seems to be on the increase. At the level of Police Station, a number of Policeman use brutality to extract money from suspects and innocent persons. The legal situation and the nature of evidence facilitate the process of making SHO very powerful and giving what he does an air of finality, which gives him the unintended power to extract money and escape the corrective process of supervision. The courts give enormous importance to the FIR and what kind of FIR is actually written depends on the policeman on duty. Investigating a dacoity case, he can always threaten to implicate an honest man, even beat him up or simply keep him hanging about the police station until he gives him money. Supervision takes place after the fact and while an attempt can be made to punish the policeman concerned, it can seldom undo the wrong done, recover the evidence that has deteriorated. Each and every person gives the priority of money, they want money anyway, and this is mental condition of our primitive to higher society. For that in Police system made chains from minister to police. Now a day police machinery a means for producing money for officers and minister. In each police station have some cost, if any police ready to pay such amount they got the post at that particular location.

3. Punitive Violence
There are few honest but misguided policemen who believe in not letting the criminal get away with it. It is genuinely believed by them that except for a sound beating, there is no other way of controlling criminals. U. P. Police Commission 1970- 71, stated,

“The reason for use of third degree method is born out of wrong convictions. There is cross-section of the people and the police and a sizeable one at that, which believes in the efficacy of third degree methods alone in dealing with criminals, particularly hardened ones. They say that a jail term is no more a deterrent to the criminals. They remain happy there, particularly as conditions inside the jails have begun to score over conditions outside and the only thing they are scared is a beating by the police. It is not unusual to find rotaries against third degree methods pleading for use of ‘police methods’ for working out a case in which they happen to be interested.”

The whole tenor of the criminal justice system is punitive, hence a subsystem of it expected to be of service to the people cannot so operate. On account of the constraints of the system, the nature of the police function also becomes punitive, and many policemen see their brutality as extension of the punitive role of the organisation.

4. Positive re- enforcement
No matter what the constraints are, results have to be produced. As things are, a policeman, say a sub Inspector, who is brutal, who operates only on short cuts and is unscrupulous about the means he uses, produces results. The production of result ease the pressure on his superiors, even wins the acclaim of all and sundry, with the result that all his sins are and have to be forgiven. In due course and sometimes earlier, such a policeman rises in his hierarchy. This reinforces his use of third degree methods not only in his own eyes but also in the perceptions of his peer group and his subordinates. Sometimes the expertise at third degree of some policeman receives such wide appreciation that other policeman confronted by an intractable situation or a case, requests for his assistance. He then goes like a superior performer ‘tackles’ the suspect and produces results, gathering a reward in the bargain. This constant positive reinforcement of third degree method when it produces results is a very important cause of violence by Police in custody. Thus, positive reinforcement of Police violence takes place because it produces results and produces them fast, at least quicker than otherwise.

5. Police Sub- culture
The police sub-culture is the sociological side of the same coin. What it amounts to is the belief that a policeman reacts to a situation in a manner peculiar to him as a policeman and thus different and identifiable from how other people would react to the same situation. The sub-culture of our police includes use of third degree methods. The police sub -culture is strengthened by alienation, cynicism, law-esteem in society, a degree of pariah feeling, conflicting demands made of policeman, inconsistent judgment of their work, all forcing them into a corner. In this situation a policeman finds succour among others of his community with whom he identifies, leading to group solidarity, which in turn provides a sense of security against the hazards of his occupation, and a basis for a medium of self-esteem and some social affiliation in spite of the irregular hours of his work. Thus develops the culture of group that which demands greater conformance to threats, tortures, rather than rules, regulations, orders etc. However can one explain the fact that a young man of good family, trained in a reasonably good manner, starts behaving, within a few years only and particularly if he is in an operational rank such as that of sub inspector, in a brutal manner, true to the stereotype of his profession in general and rank in particular.

6. Lack of Proper Training
Lack of proper training to the Police officials, often result in use of third degree methods. The utterly inadequate training given to constables, the general absence of any attention to the necessity for keeping temper, being civil and respectful to the public, avoiding brutality or unnecessary harshness, are the factors that which leads to violence. Gore committee on Police Training 1972, was of is the view that one of the objectives of training should be to inculcate the right attitude towards the public which consists is never forgetting that the civil servant is the servant and not the master of the community. However, unfortunately, till date no adequate training with the objective mentioned, has yet been provided to police. Police should be given proper training which should include a separate course to impart them knowledge about the human rights and that they are here to protect the human rights and not to infringe them.

7. Other factors
Apart from the reasons mentioned above, the other reasons for custodial torture can be sexual weakness, sadism etc. Male police personnel may have a tendency of attraction towards opposite sex prisoner. For satisfaction of this lust he may use force and commit rape in the custody or he may use his official position to obtain consent for sexual intercourse. An amendment has been made in the IPC, 1860 to provide for stringent punishment for those officers, who use their official position to obtain consent of female prisoner in the custody for having sexual intercourse with them. The third degree methods are also applied for ‘teaching a lesson’ or ‘vomiting out anger’. It is the stage, where professional competence of the individual policeman surrenders before a situation and then he almost goes out of his mind. This can be averted if the policeman could keep their cool, not be overcome or torn by emotions, maintain a philosophical detachment and as a parallel requirement, have sufficient professional skill.

Another reason of custodial violence can be the social factor. In our country, we are accustomed to think in terms of ‘an eye for an eye’ and ‘tooth for tooth’. Therefore, the Society tacitly expects and approves the use of violence on suspects to get the truth. Complainants themselves urge the police to use force or violence to break a suspect. Therefore, in a Society, where the public are indifferent to the use of force on fellow human beings, policemen gets, as it were, social support for these illegal acts.

a) The third degree is a short act to quick results. As per the report of National Police Commission, an investigating officer is able to devote only 37% of his time in investigation while the rest of his time is consumed in law and order duty, VIP and security duty, court attendance and other miscellaneous duties. The result is naturally short cut and extra legal.

b) Lack of knowledge of application and experience of scientific methods in crime investigation and interrogation of accused. Inadequate training etc.

c) Sometimes society expects police to take tough action not sanctioned by law against criminals. Use of third degree is their service right and accepted part of profession.

d) Political and bureaucratic influence and interference, collusion with rich and influential people and dancing to their tune.

e) They feel immune to the fact that whatever they will do won’t be questioned.

f) Disproportionate ratio between crime rate and manpower.

g) Lack of effective supervision and inspection of Police Station by superior officers.

h) Delay in trial gives more time to interrogate.

i) Erring police officials go unpunished due to lack of evidence.

j) Psychological aberrations of the custodian – sadism, sexual weakness, social hatred, etc.

k) Lack of time for investigation.

l) Inability to keep a person for longer duration in custody for interrogation than 24 hours are such factors which induce police to keep suspect in ‘unofficial custody’ which ultimately encourage the police to indulge in custodial violence.

m) Long duration of work and deplorable conditions of work. A study carried out by National Productivity Council had shown that a policeman has to work sixteen hours a day and seven days a week.

Custodial Violence and Indian Constitution

The legal framework in India both constitutional and statutory contains provisions relating to safeguards arrest, detention, custodial torture and other crimes in custody. The substantive law (Indian Penal Code, 1861) provides punishment of a person causing injury, torture or death on the body of a person in custody. The procedural law (Criminal Procedural Code, 1973 and Indian Evidence Act, 1872) contains several provisions safeguarding the legal rights of a person in custody. The Constitutional and the relevant statutory provisions on the subject have been supplemented by the significant judicial pronouncements. In addition, the Protection of Human Right Act, 1993 provides institutions of the National and State Human Rights Commissions as well as Human Rights Courts for better protection of human rights of a person in custody. India has ratified, acceded and singed the International Declarations, Covenants, Conventions and treaties such as Universal Declaration of Human Rights( UDHR), International Covenant on Civil and Political Rights ( ICCPR), International Covenant on Economic, Social and Cultural Right (ICESCR), International Convention on the Elimination of All forms of Racial Discrimination( ICERD), Convention on the Elimination of All Forms of Discrimination against Women( CEDAW), Convention on the Right of the Child (CRC), Convention against Torture and Other Cruel, inhuman or Degrading Treatment and Punishment (CAT), and the International Convention on the protection of the Rights of All persons against Enforced Disappearance (CPAED). This apart, the UN Declaration on Basic Principles of Justice for Victims of Crime and abuse of Power is relevant.