By Nitya Chakraborty
The Delhi Court order on the bail granted to the climate activist Disha Ravi issued on February 23 has imparted a new dimension to the debate whether the present sedition law provisions are too draconian giving enough leeway to the ruling dispensation to charge citizens for sedition for expressing views contrary to the government’s policies. The order of the additional judge Dharmendar Rana is an objective observation on the present state of affairs relating to democratic dissent in the country when the police can arrest anybody on sedition charges without having the required incriminating documents.
In the last two years, especially since the coming of the Narendra Modi Government for the second time in May 2019, the dissenters have been suspects in the eyes of the government’s law and order agencies and most of them have been termed as anti-nationals. The BJP leadership is consolidating supreme power in the country by fair means or foul with the objective of establishing the rule of one party in both the centre and the states. Any agitations against the discriminatory policies like CAA, NRC and the latest three farm laws, have been termed as anti-national acts and the leading figures of the movement have been arrested in fabricated charges.
The arrest of the activist Disha Ravi on sedition charges and the pathetic performance by Delhi police during hearing and the consequent observation of the judge show how just for expressing disagreement with government policies and vowing to fight that within the democratic framework, the young 22 year old activist had to bear the ignominy at the hands of the state which could not produce any tangible documents in support of their contention.
As the learned judge said in his 18 page bail order ‘the offence of sedition can not be invoked to minister to the wounded vanity of the governments. Differences of opinion, disagreement, divergence, dissent or for that matter, even disapprobation, are recognised legitimate tools to infuse objectivity in state policies. An aware and assertive citizenry in contradistinction with an indifferent or docile citizenry, is indisputably a sign of a healthy and vibrant democracy”’
This participation of aware citizenry in the debate on national policies of importance is against patriotism to the present BJP government and that is why the civil society activists are the targets and anybody who works for the welfare of the distressed including the Delhi riot victims are hounded and falsely charged. The Bhima Koregaon activists are languishing in jail and despite failing health, only the 82-year old Varavara Rao was granted bail last week out of the nine activists.
At time when there is need for expanding the areas of democratic rights, the presence of sedition laws and its misuse by the ruling establishment have brought to spotlight the need for doing away with th e existing s sedition laws provisions or to dilute the law in such a way that there are enough safeguards to protect the rights of the citizenry who will be targeted by the ruling regime.
The British discriminated against Indians when they introduced this provision into the statute books. Sedition was made a far harsher offence here than it was in England. However, in the 1970s, by changing the rules about when the police could arrest a person accused of sedition, the government of independent India made sedition more potent than it was even during the colonial period.
The IPC was enacted and brought into force in colonial India in 1860. At that time, it had no section concerning sedition. There are two theories for why sedition was not in the original text. The official version is that it was a blunder—though sedition was supposed to be in the final version of the IPC, it was left out by mistake.
According to the eminent lawyer Abhinav Chandrachud, it is quite likely that sedition was excluded from the IPC because it had virtually ceased to be an offence in England by that time. According to one 19th century British author, prosecutions for sedition in England from 1832 onwards were so rare that the offence had virtually ceased to exist.
The IPC was part of the colonial experiment of codification. There were no codes in England at that time; as the “common law” was contained in cases decided over centuries. The great Indian “codes”—the IPC, the Indian Contract Act, the Indian Evidence Act—were meant to be models for adoption in England.
According to this eminent lawyer, when sedition was finally inserted into the IPC in 1870, it had the ill odour of colonial discrimination about it. Englishmen who were accused of sedition back home were entitled to be tried by a jury of their peers. These juries tended to be sympathetic towards their countrymen and it was, therefore, difficult to secure a prosecution for sedition. In the new Code of Criminal Procedure, 1973, which came into force in 1974 and repealed the colonial-era 1898 Code of Criminal Procedure, sedition was made a cognizable offence for the first time in India’s history. The police now have the power to arrest a person accused of sedition without a warrant from a magistrate. This extraordinary power of the police is being misused and the adversaries to the government of the day can be arrested without producing a warrent. This has continued to be a big danger to democracy and free expression.
Interestingly, the offence of sedition was formally abolished in England, in 2009 but it stays in India with the same draconian provisions. Many eminent lawyers have been demanding its withdrawal since 2009.The Disha Ravi case now underlines that the democratic forces in the country who stand for free expression and dissent as the fundamental right under Article 19 of the Constitution, must vigorously assert for the removal in India of sedition law
To begin with, at least as a part of dilution, the offence of sedition can be made bailable and non cognisable. Time is running out. The battle for the removal of sedition provisions or at least substantial dilution with safeguards, has to be won. This is imperative for protecting the necessity of dissent as a part of our making democracy vibrant. (IPA Service)