By – Soumya Tiwari
While the pandemic across the globe is enraging relentlessly, claiming thousands of lives every day, the governments responsible for saving the lives and the recovery of the institutions of their respective country, are not leaving any stones unturned to suppress the voice of the media and the hard truths revealed by such media institutions to keep the governments in check. India, engrossed and beaten down by the second wave of the pandemic, is not untouched by such heinous practices where ruling party at the Centre and several states across the country have meted out fury and draconian laws to suppress the incompetence of the authorities.
The topic is in contentious prevalence currently due to the remarks of the Supreme Court on the usage of Sedition Law against the journalists and media houses, where the Apex Court has considered it arbitrary and unjustified in many cases.
This article tries to deal with the matter, in context with the status quo, and appears to encompass the debate around the same.
Supreme Court, Sedition Law, Journalists, Section 124A, Central Government, Kedar Nath Judgement, Vinod Dua, arbitrary.
It is shameful that as a nation, India has reached a place where the people responsible for acting a check and mediator between the Government and the mass, have been victim of vindictive witch-hunt, where they have been meted out harassment, intimidation, threats, and targeted discrimination, and draconian laws. The description suitably describes the relationship between the Government and the media of this country, to be precise, dissenting media.
Latest instances pertaining to the vindication of the journalists, or the media, perfectly demonstrates how the portrayal of mismanagement and incompetence of the authorities has been met with arrests and unjustified FIRs under the old-age laws such as Sedition Law.
Backdrop and Judgement of the Vinod Dua Case
A FIR was filed against senior journalist Vinod Dua for his severely critic remarks on the Prime Minister Narendra Modi, on his YouTube show. The FIR was filed by a BJP leader and besides sedition, other charges included causing public nuisance, publishing defamatory matter and making statements conducive to public mischief. This, however, was not acceptable by Mr. Dua and he approached to the Court last year.
The SC in its verdict, remarked on the charges of sedition against Mr. Dua, and relied strongly on the historic Kedar Nath Judgement of 1962 which said:
“commenting in strong terms upon the measures or acts of government, or its agencies, so as to ameliorate the condition of the people or to secure the cancellation or alteration of those acts or measures by lawful means, that is to say, without exciting those feelings of enmity and disloyalty which imply excitement to public disorder or the use of violence is not sedition”.
In the case decided by the bench led by Justice U.U. Lalit, the Court expressed on the requirement of prevention of usage of sedition law against every journalist, based on the 1962 judgement:
“It must however be clarified that every Journalist will be entitled to protection in terms of Kedar Nath Singh, as every prosecution under Sections 124A (sedition) and 505 (publishing or circulating rumor) of the IPC must be in strict conformity with the scope and ambit of said Sections as explained in, and completely in tune with the law laid down in Kedar Nath Singh,” it ruled.”
The remarks of the SC in this case comes as a relief to the journalists, but it is a still a long way road to achieve the observance regarding non-application of British age laws in every potential dissent to the Government in power.
Misuse of Sedition Law
The definition of provision related to Sedition is given in Indian Penal Code 1872 and it states that:
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 established by law in, shall be punished with , to which fine may be added, or with imprisonment which may extend to three years, to which fine may be added, or with fine.
The obvious question that arises is-whether the journalists who are dissenting against the Government should be charged with sedition? The answer to this naïve question is simple. In most cases, NO! And the justification to this answer lies in the explanation clause of Section 124A. In the explanation clause (2) and (3) of Section 124A, it is stated that:
Explanation 2. –Comments expressing disapprobation of the measures of the Government with a view to obtain their alteration by lawful means, without exciting or attempting to excite hatred, contempt or disaffection, do not constitute an offence under this section.
Explanation 3. –Comments expressing disapprobation 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 this section.
It, thus, becomes obvious that a disaffection with the government and its measures do not constitute as an offence under this section. Hence, the Government, be it of any majority or ideology oriented in its regime, does not have the Right to Affection by the consensus. Any type of disapproval with the government, if it is not done with an intent to incite violence or lead a subversion of Government established by law, is extremely important for a populous democracy like India. Yet, the tragedy is the misuse done by the authorities in power of this antique law which needs a revisiting and alteration, or blatant repeal, in the context of current scenario.
According to a database published by the Article 14, 96% of 405 sedition cases filed in the decade of 2010-2020, were filed after Mr. Narendra Modi and his party gained power in 2014. Out of these, 149 people were accused of making “critical” or “derogatory” remarks against Prime Minister Narendra Modi, and 144 against Uttar Pradesh Chief Minister Adityanath,
The extravagant misuse of sedition law can be further observed by the conviction rate in respect to the cases filed. According to the data of NCRB, the arrests under the charges of sedition in the period of 2016-19 have increased by 160%, while the conviction rate against the arrests has dropped from 33.3% in 2016 to 3.3% in 2019. It is apparent then that State has been using the law vaguely and has done relentless efforts to shut down any form of criticism which can lead to the tarnishing of majority in power. How can a country be democratic on one hand and have such intolerance on the other hand where journalists doing their jobs are threatened, and slapped with illegitimate charges by the lap dogs of the Government? It is extremely disturbing, and the current situation demands the serious reassessment of such draconian law where the curb is implemented on usage of this provision with strict measures and any such law is repealed.
Rigorousness towards the journalism
It is sad to see the deteriorating conditions of media and journalists in this country which proclaims itself to be pro-democracy and vouches for the freedom of speech and expression entitled in the Constitution. Journalists, activists, satirists, comedians, and every possible entity which has the potential of public influence and can contradict the claims of “all-is-well” agenda led by the parties in power across the country, is being met with the horrendous and distasteful treatment by the authorities, which should really be treating them as an ally to check and regulate their actions for the betterment of the country.
In the rankings published by the Reporters Without Borders, a French NGO which releases the report on World Press Freedom Index, India ranked 142 out of 180 countries, in 2020, for the second year consecutively. India’s ranking has been on degradation for past few years, where in 2016, it was ranked 133. The report added about the threats being pursued, to toe on the line of Hindutva ideology followed by the party in power, ever since the Modi Government has come back in power in 2019. It added:
“Indians who espouse Hindutva, the ideology that gave rise to radical right-wing Hindu nationalism, are trying to purge all manifestations of “anti-national” thought from the public debate.
The coordinated hate campaigns waged on social networks against journalists who dare to speak or write about subjects that annoy Hindutva followers are terrifying and include calls for the journalists concerned to be murdered.”
A reporttitled Getting Away with Murder, states that there have been 40 killings of journalists between 2014-19, and 21 of them are in relation with their professional work. Moreover, in over 200 incidents of attack against the journalists, none of them have amounted to conviction in the said period. This figure is extremely disturbing and what is more disturbing is the apathy and the continued ignorance of those in power against the people who are being affected. The numbers do not determine the figures of unreported incidents which happen occasionally and are suppressed under the pile of poor and unaided police investigations in the concerned matter.
Now the question arises- is this not enough to demonstrate the worsening situation and growing intolerance alongside the incompetency of the Government at the Centre and the ones across states? Few recent instances would be exemplars to determine the stand against the coercive forces and methods being used against the journalists.
Siddique Kappan, a journalist for the Malayalam news portal Azhimukham, was arrested in October while he was on his way to report on the Hathras case, in which a 19-year-old Dalit woman had died on September 14 after four upper caste men gangraped her. The Uttar Pradesh Police later booked him under the Unlawful Activities (Prevention) Act and charges of sedition. He still finds himself locked up, and recently, Editors Guild of India condemned the “inhumane treatment” being meted out to him in jail.
Mandeep Punia, and four other journalists were arrested in January 2021. Punia was later beaten, harassed and physically excruciated while he was locked up. He was picked up while he was reporting from the site of farmers protests’ which had been going on for over a couple of months then.
This situation is even worse for women. Harassment, threats, physical intimidation, bullying and molestation through social media platforms and in general have become ordinary behavior and little to nothing sort of actions of addressal is conducted by the concerned authorities. Moreover, no discussion about the intimidation to and curb on the freedom of press in India can be held without involving the deteriorating conditions in Jammu and Kashmir. Ever since the autonomy of the region was revoked in August 2019, blatant internet shutdown was imposed in the region making it extremely hectic for the news to come out beyond those borders. Scores of journalists were booked, and the atrocities reported, which had the potential of bringing the ground reality ahead, were suppressed. The internet ban was lifted to its full capacity only a couple of months back and the region still lies in deploring conditions. The internet shutdown was months-long, making it the longest ever in a democracy. The move was strongly condemned at different occasions worldwide, but the Government did not seem to care and kept shrugging off every foreign criticism in the manner they do within the country, except they weren’t able to use coerciveness elsewhere.
It is horrific how far these measures can go to intimidate the media, and constitute every form of human rights violation, and revelation of unconstitutional methods to crack down on the freedom of speech and expression.
Stand of Judiciary
Although the right of freedom of speech and expression is entitled in the Constitution under the article 19(1)(a), the coercive and obstinate methods of aggression used towards the media forces have made the judiciary to intervene and defend the personal liberty and right to expression and criticism of the government, by the journalists, for the education and discussion of the people. Time and again, the judiciary of this country has reiterated its stand with the right of journalists and their work in criticizing the government.
In the case of Brij Bhushan v. State of Delhi, held that in India under Art.19(1)(a) freedom of speech and expression authoritatively includes the freedom of press print and electronic media and affecting the right of freedom of speech and expression.
In the case of Romesh Thapar v. State of Madras, the Supreme Court held that freedom of speech or freedom of press lays the foundation of all the democratic organization without political discussion, no public education is possible which is necessary for proper functioning of popular government.
In the case of India Express Newspaper Ltd. v. Union of India, Justice Venklatrana of Supreme Court of India sated that the freedom of press is an essential for the proper functioning of the democracy. In Re: Vijay Kumar, the Supreme Court recognized the scope of freedom of press as an essential prerequisite of a democratic form of democratic form of government and regarded it as the mother of all other liberties in democratic society
These are just a few instances where the Judiciary has acted as a super visionary regulatory body for the protections of fundamental rights regarding speech and expression, however, these are not limited to just this. The fundamental understanding here is about the judiciary having to intercept and protect the rights, where it should have been the executive and administrative wings’ responsibility to not let the deplorable conditions exist in the realm of their functionary, and let the media professionals and journalists do their job, without causing them threats and intimidation in the first place. Since, the situation now is worsening, the question here is, who can be the savior? The answer is, in the nearest sight, judiciary.
Media is the fourth pillar of democracy, and its safety and assurance of their professional work and ethics, be it in form of severe criticism and bashing of the authorities over their management and administration, should be rather preserved and passed onto for the betterment and upholding the strength and integrity of a democracy. However, slapping of charges, threats, fears, will be of absolutely no help. This unquestionably demands the repeal and scrapping off any such law and type of ideology-oriented behavior which acts as on obstacle to the public from knowing the truth through media. Old age laws such as that of sedition need to go, cause their interpretations is on a constant change cycle in this democratic and republic nation, where the change of power means change of ideology, and thus, change of literal interpretations of the statute. This cannot serve the purpose of justice, and it is fundamentally determined to work according to the whims and fancies of those in power.
The summation of such a broad and unfortunate topic demands many answers, but probably this is the most desired one- what is the end of this “undeclared emergency”?
- Mustafa F, ‘Why the Draconian Sedition Law Must Go’ (The Indian Express, 2021) https://indianexpress.com/article/opinion/columns/supreme-court-sedition-law-vinod-dua-case-modi-govt-freedom-of-press-7343120 (Accessed 11 June 2021)
- Staff S, ‘96% Sedition Cases Filed Against 405 People After BJP’S 2014 Victory, Shows New Article 14 Database’ (Scroll.in, 2021) https://scroll.in/latest/985724/96-sedition-cases-filed-against-405-people-after-bjps-2014-victory-shows-new-article-14-database accessed 11 June 2021
- Staff S, ‘India Retains 142Nd Rank on World Press Freedom Index, Among Most Dangerous Nations for Journalists’ (Scroll.in, 2021) <https://scroll.in/latest/992793/india-retains-142nd-rank-on-world-press-freedom-index-among-most-dangerous-countries-for-journalist> accessed 11 June 2021
- ‘Over 200 Serious Attacks on Journalists in India Between 2014-19: Report’ (The Wire, 2021) <https://thewire.in/media/journalists-killed-attacked-india-report> accessed 11 June 2021
- Tripathi R, ‘Arrests Under Sedition Charges Rise but Conviction Falls to 3%’ (The Economic Times, 2021) <https://economictimes.indiatimes.com/news/politics-and-nation/arrests-under-sedition-charges-rise-but-conviction-falls-to-3/articleshow/81028501.cms?from=mdr> accessed 11 June 2021
- http://www.columbiapublicpolicyreview.org/2021/01/democratic-backsliding-and-chilling-effect-of-sedition-laws-in-india/ (IMAGE SOURCE )