ORIGIN OF FREEDOMS & LIBERTIES AND RELIGIOUS PERSPECTIVE
Human beings with unique abilities and capabilities of thinking, understanding, imagining, forming associations, and devising the rationale, have made them the most distinct, evolved, and successful species on this Planet. The origin of freedoms & liberties can be traced to the inception of humankind from the Stone Age and the instinctual component of freedoms & liberties would be the innate nature of human beings that comes into being with the birth as a free being. Freedoms & liberties complemented with a power to express freely, the human beings have brought the significant positive changes to the world through various revolutions as demonstrated in the reliable historical references.
Religion expressed freedoms & liberties in a slightly different way within its religious code: Vedas, Upanishads, and other ancient religious texts had semblance to the human rights. Freedoms & Liberties had been propagated by Catholic Church within its institutional structure to convey ecclesiastical laws through Papal Bull which is the Public Decree issued by the Popes in the Vatican.
HISTORICAL DOCUMENTS – CORPUS JURIS CIVILIS & MAGNA CARTA
Latin Codex Justinianus – Code of Justinian – ‘Body of Civil Law’, is a collection of laws and legal interpretations established between 529 and 565 CE under the sponsorship of Byzantine Emperor Justinian I. In those times, Slavery was an institution and this code formalized the freedoms of freedmen and slaves in distinct ways. It further categorized liberties into three distinct categories of King’s subjects.
Magna Carta– Under a revolt by Barons, King John was forced to sign Magna Carta on 15 June 1215. Magna Carta was written in Latin, but the spoken language of that time was French. Clause 39 of the Magna Carta held that no freeman shall be taken, imprisoned, disseised, banished, or in any manner destroyed, and we shall neither go upon nor send upon any freeman except upon the lawful judgment of his peers or according to the law of the Land. This omnibus document, in a sense, was the formal common law enforceable legislation that is a fountainhead of freedoms and liberties that we cherish in the Modern Age. Although, Pope Innocent III – an extremely powerful Pope – annulled the Magna Carta on 24 August 1215 as he got annoyed with the arrogant behavior of Barons who were challenging his authority through the Magna Carta. Later on, Magna Carta was reintroduced and got amended from time to time.
A constitution is a social contract between the government and its citizens, and the purpose of the Constitutions, in orderly societies, is to ensure that the freedoms & liberties are safeguarded for ourselves & our posterity. The States and Union shall have coordination in terms of Governance, justice is delivered to all segments of the society, maintenance of peace & tranquillity, and to promote general welfare in society are other features of a Constitution. A society governed by the Rule of Law ought to respect constitutionally guaranteed freedoms & liberties for all times to come. The constitution of the United States is one of the oldest constitutions in the World and came into operation in 1789. In the same year, the Bill of Rights was introduced that had 10 amendments ensuring the panoply of Freedoms and Liberties guaranteed to its citizens. The constitution of India was a big leap in the direction of guaranteeing freedoms & liberties as compared to the Government of India Act, 1935 wherein the chapter of Fundamental Rights was absent. Our founding fathers pervaded freedoms & liberties within the constitutional culture of India after long debates in the Constituent Assembly. However, unfortunately, our first amendment went in the exact opposite direction to the Bill of Rights and it was serious inroads to the Fundamental Rights.
ORIGIN, HISTORY, AND EVOLUTION OF THE REPRESSIVE LAWS IN THE UK AND THE US
Sedition dates back to the Statute of Westminster 1275 when the King was thought to be the possessor of Divine authority. To establish the offense of sedition, not only, the veracity of the speech was evaluated, but also its intention. Sedition was originally designed to prohibit speeches that were detrimental to necessary respect for government. King Edward, I passed the Statute of Westminster in 1275, Chapter 34 of it provided that:
“Forasmuch as there have been oftentimes found in the Country Divisors [devisers] of Tales, whereby Discord, or Occasion of Discord, hath many times arisen between the King and his People, or the great Men of this Realm; For the damage that hath and may thereof ensue, it is commanded That from henceforth none be so hardy to tell or publish any false News or Tales, whereby Discord, or Occasion of Discord or Slander may grow between the King and his People or the great Men of the Realm; and he that doth so, shall be taken and kept in prison until he hath brought him into the Court, which was the first Author of the Tale.”
King Edward III also passed Treason Act, 1351 wherein the punishment for treason was the death penalty. Thereafter, the UK matured as a democracy and it abolished the offense of Sedition in 1967, and in 2009, the British Parliament gave a clarification that sedition did not even exist in their common law system.
REPRESSIVE LAWS OF THE UNITED STATES AND ITS SUPREME COURT ON FREEDOM OF EXPRESSION AND SPEECH:
The administration of President John Adams brought Sedition Act, 1798 which expired in 1801, but nothing much happened in consequence of the Act, and President Woodrow Wilson brought in the Aliens & Sedition Act, 1918. Schenck was the secretary of the Socialist party and he printed 15000 leaflets that declared that the draft related to Selective Act was not only, illegal, but also, evil. He propagated that the US should not go to war, when in fact, the US was at war in World War I.
The matter reached the U.S. Supreme Court in Schenck vs. United States, 249 US 47 (1919), wherein it was ruled that the constitutional protection of Freedom of Speech afforded in the First Amendment of the US Constitution could be restricted if the remarks uttered or printed posed a ‘clear and present danger’. Justice Holmes points out a beautiful example in the judgment that if an individual falsely shouts fire in a crowded theatre, obviously, it will create disruption of enormous order, and must be stopped instantly, but short of that, if there is no clear and present danger of anything untoward or illegal happening, the free speech cannot be curbed. The majority opinion speaking through Justice Oliver Wendell Holmes explained that the inquiry in every case is whether the words employed are used in such circumstances and are of such a kind as to create a clear and present danger that they would, bring about the substantive harms that Congress has the power to prevent. The proximity and degree is the question. When a nation is at war many things that might be stated in a time of peace are such a hindrance to its effort that their utterance will not be endured so long as men fight and that no Court could regard them as protected by any constitutional right. It seems to be recognized that if an actual obstruction of the recruiting service were shown, culpability for remarks that caused that effect might be enforced. The statute of 1917 under Section 4 punishes conspiracy to obstruct as well as actual obstruction. If the act, (speaking, or disseminating a document,) its tendency and the aim with which it is done are the same, it is not justified for concluding that success, alone justified declaring the act a crime.
In Abrams vs. United States, 250 US 616 (1919), 5 persons of Russian origin also distributed leaflets depicting pretty much the reasoning as Schenck had mentioned. The majority judgment convicted them following Schenck vs. United States, 249 US 47 (1919), but the celebrated Justice Oliver Wendell Holmes of the US Supreme Court in a dissenting opinion accompanied by another equally celebrated, Justice Louis Brandeis. Justice Oliver Wendell Holmes articulated these words which have become classic, and passed into the literature of Law:
“Persecution for the expression of opinions seems to me perfectly logical. If you have no doubt of your premises or your power and want a certain result with all your heart you naturally express your wishes in law and sweep away all opposition. To allow opposition by speech seems to indicate that you think the speech impotent, as when a man says that he has squared the circle, or that you do not care whole-heartedly for the result, or that you doubt either your power or your premises. But when men have realized that time has upset many fighting faiths, they may come to believe even more than they believe the very foundations of their own conduct that the ultimate good desired is better reached by free trade in ideas-that the best test of truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out. That at any rate is the theory of our Constitution. It is an experiment, as all life is an experiment. Every year if not every day we have to wager our salvation upon some prophecy based upon imperfect knowledge. While that experiment is part of our system I think that we should be eternally vigilant against attempts to check the expression of opinions that we loathe and believe to be fraught with death, unless they so imminently threaten immediate interference with the lawful and pressing purposes of the law that an immediate check is required to save the country. I wholly disagree with the argument of the Government that the First Amendment left the common law as to seditious libel in force. History seems to be against the notion. I had conceived that the United States through many years had shown its repentance for the Sedition Act of 1798, by repaying fines that it imposed. Only the emergency that makes it immediately dangerous to leave the correction of evil counsels to time warrants making any exception to the sweeping command, “Congress shall make no law . . . abridging the freedom of speech.” Of course, I am speaking only of expressions of opinion and exhortations, which were all that were uttered here, but I regret that I cannot put into more impressive words my belief that in their conviction upon this indictment the defendants were deprived of their rights under the Constitution of the United States.”
Alien & Sedition Act, 1918 was repealed in 1920, but another extremely repressive legislation was brought in called Smith Act, 1940. Several judgments were pronounced as a result of this Act and the most notable was Dennis vs. United States, 341 US 494 (1951), the US Supreme Court quite regressively held that it was enough for an individual to say something against the government, or to abuse the government of the US without intending any imminent lawless action, and consequently, the person could be put behind the bar or the free speech to be stopped completely.
In Yates vs. United States, 354 US 298 (1957), the US Supreme Court did something to mitigate Dennis vs. United States, it held that free speech must translate itself or must be thought to translate itself into some kind of disorder. Finally, in Brandenburg vs. Ohio, 395 US 444 (1969), the test laid down which has been followed to date is that free speech cannot be curbed unless there is proper perception as to imminent lawless action.
HISTORY OF REPRESSIVE LAWS AND TRIALS IN THE INDIAN CONTEXT
ORIGIN OF SEDITION (SECTION 124 A, IPC):
The original Indian Penal Code, 1860 drafted by Lord Thomas Babington Macaulay did not have Section 124 A, IPC (Section 113 of the old code). When the matter came up for consideration in 1870, Sir James Fitzjames Stephen, referred to Sir Barnes Peacock, who upon examination of the notes, stated that he believed the part had been missed by mistake but had no positive recall of it. On that occasion, Section 113 of the old code was discussed, and Sir Barnes Peacock proposed a provision that was deemed to be excessively severe, and no comparable section was passed corresponding to it.
Sir James Fitzjames Stephen, while introducing Section 113, explained what the law of England was at the time and stated that he proposed that Section 124-A be enacted because, in the absence of such a provision in the law of India, the offense would fall under the common law of England and would be more severely punishable; and he stated unequivocally that there must be an intention to resist by force or an attempt to excite resistance by force before the offense can be brought under Section 124-A.
Section 124A, IPC uses a peculiar language i.e. attempts to incite disaffection to the government established by law with an exception was acts of disapprobation would not amount to disaffection. The sentences after conviction under Sedition were enormous, it was the transportation of life or anything lower, and if it was to be imprisonment, it was to be 3 years of anything lower. A cursory reading of Section 124A, IPC would reveal that no such provisions can pass the test of constitutionality in a modern liberal democracy anywhere in the World.
In 1891, the first real case in the Indian context where the British government invoked sedition was the Bangobasi trial. Bangobasi, a vernacular for ‘Citizen of Bengal’, was a weekly newspaper with a high distribution in the State of Bengal. The publication published the first of five articles criticizing the age of Consent Act that was introduced to curb child marriages as contrary to Hindu traditions and morality on 26 March 1891. The editor, during the trial, tried explaining his position to the judge and jury, that not only, the article was written by another author, but also, the article only pointed out that child marriage was inherent in Indian culture and the British government should not treat Indians like subjects to impose their laws on Indians.
Justice Petheram was not at all convinced, he believed that the article published was not an exception to sedition as defined under the acts of disapprobation. The Judge explained to the jury that the Sedition does not require the editor to have written the offending article; simply printing it constitutes an attempt to encourage disaffection and explained that ‘disorder’ has no role in Sedition. However, there was no verdict announced since the jury was unable to reach a unanimous consensus, and after the editor apologised, the complaint was withdrawn.
First Tilak Trial:
In 1897, Bal Gangadhar Tilak, being a freedom fighter, interacted with the general public through vernacular newspapers i.e. the Kesari and Maratha. He was charged with Sedition for his writings in the publication. The publication pointed out the famine that had caused the plague, it gave British collectors unnecessary powers to interfere with the rights of Indian citizens by entering their homes, without a warrant to check on the spread of the plague in all the localities. After a week the article was printed, an incident took place where a youth shot down the collector and ran away. This killing of the collector was attempted to be linked with the article written by Tilak and he was tried for sedition. Once again, it was held that the publications incited disaffection against the government and he got convicted and sentenced to 18 months in prison, but after the intervention of people regarded highly by the British government, Tilak was released after 51 weeks.
Satara Trial & Muslim daily Trial:
The editor expressed his desire for Swaraj from British rule in a newspaper, and he was charged with Sedition in the Satara trial. Unfortunately, the editor was tried and convicted for inciting disaffection against the government. In Allahabad, a Muslim daily printed another article declaring that independence from British rule is needed, and the editor apologized. Section 124A was invoked, and despite an apology, the editor was sentenced to 18 months in prison.
In 1898, there was an amendment brought into Section 124A wherein definitions were added and it also broaden the definition of ‘disaffection’ to include ‘disloyalty’ towards the government which created more confusion altogether.
Second Tilak Trial and Savarkar’s Trial
Bal Gangadhar Tilak was again tried for sedition in 1909 in respect of certain writings offering justification for the murder of two European women in a bomb blast. He wrote that white class persecution culminated in the development of a hidden society of the youthful generation dedicated to assassinating the whole white ruling class in the United Kingdom, but he characterised this incident as something extremely unlucky. Tilak further wrote that the ruling class blames such unfortunate incidents on the leaders of the subjects, and has attempted to suppress writings, speeches, and other expressions of dissent against the government. Muhammad Ali Jinnah defended Tilak in this trial and the bail was refused by Justice Mahadev Govind Ranade initially but was granted by Justice Badruddin Tyabi in the second round. Tilak defended himself for more than 20 hours during the trial, and read long speeches. But he was convicted and sentenced to 6 years of transportation by the jury.
In 1909, Ganesh Savarkar wrote 4 poems in which he wrote that the British Government has to be thrown out of India, and for writing these articles, he was convicted and sentenced to transportation for life.
Mahatma Gandhi’s Trial:
In 1919, three cataclysmic events took place, the Jallianwala Bagh massacre, the Rowlatt Act, and the famous Khilafat movement, the major civil disobedience movement was initiated by Mahatma Gandhi. Even though Mahatma Gandhi advocated nonviolence, and called off the movement whenever there was violence, he called it off twice, but he was charged with sedition.
During the trial, Mahatma Gandhi said that affection cannot be generated or regulated by legislation. If one has no affection for a person or system, he or she should be free to express his or her disaffection to the fullest extent possible, as long as he or she does not contemplate, promote, or incite violence. But, he was found guilty and sentenced to six years in prison.
Niharendu Dutt Majumdar’s case:
In Niharendu Dutt Majumdar and ors. vs. Emperor, AIR 1939 Cal 703, Chief Justice Wire speaking for the Federal Court noted that at the heart of the Sedition in England is public disorder, and Sedition has to be read in its English backdrop. Consequently, the Federal Court held that in the absence of public disorder, a person cannot be punished under sedition for expressing dissatisfaction against the government.
This judgment was later on reversed by the Privy Council in King-Emperor vs Sadashiv Narayan Bhalerao (1947) L.R. 74 I.A. 89, it pointed out that the word Sedition was not used in 124 A at all, and it was only used in the marginal note. It is well settled in law that the marginal note cannot control the plain language of the section, and the plain language says nothing about public disorder or violence. It was held that mere incitement of disaffection against the government is enough to convict and sentence an individual under 124A.
EVOLUTION OF SEDITION
Post-Independence – Constitution springs in:
At this juncture, India got independence and finally broke the shackles of the colonial masters. The constitution of India springs in and guaranteed Article 19(1)A to its citizens, the only way free speech could be curtailed is under 19(2) for example security of the State, etc. After an amendment to the constitution, public order and reasonable restriction, which were balancing acts, got added through an amendment to the 19(2).
Kedar Nath’s case:
In Kedar Nath Singh vs. State Of Bihar, 1962 AIR 955, the Supreme Court held that the penal provision of sedition would be attracted only if the expression of disaffection to the government of the day is accompanied by an attempted incitement to violence or disorder.
Fault lines in Kedar Nath Singh’s case:
- A) The Supreme Court in Kedar Nath Singh vs. State Of Bihar held that while interpreting Article 19(2), what has to be understood is the meaning of ‘in the interest of Public order’. And ‘in the interest of’ is a loose elastic term and it needs no proximate relation with Public order and even some remote relation would be good enough as a balancing act.
The Supreme Court somehow missed The Superintendent, Central Prison, Fatehgarh v. Ram Manohar Lohia,  2 S.C.R. 821, wherein it was held that merely distinguishing an Act that expressly and directly sought to maintain public order and one that did not specifically specify that goal but implied it, and between an Act that directly maintained public order and one that did so indirectly. This disparity does not negate the need for an intimate connection between the Act and the public order it seeks to preserve. While deciding this judgment, the Supreme Court relied upon Virendra vs. The State of Punjab, (1958) S.C.R. 308 and Ramji Lal Modi v. The State of U.P. (1957) S.C.R. 860 to interpret in the interest of.
- B) Kedar Nath Singh vs. State Of Bihar misread Section 124 A, IPC and if it is read as a whole, not only does it attempt to grab people who make speeches that cause disaffection, but it further attempts to grab people who incite others to violence. A bare reading of Section 124 A, IPC will reveal that it has nothing to do with violence. The Privy Council in King-Emperor vs Sadashiv Narayan Bhalerao (1947) L.R. 74 I.A. 89, quite correctly pointed out that mere incitement of disaffection against the government is enough to convict and sentence an individual under Section 124A.
- C) Another peculiar reason cited in the Kedar Nath Singh vs. State Of Bihar is the misapplication of Heydon’s case (1584) 76 ER 637. If we apply the Mischief Rule to interpret Section 124 A, IPC, it is a provision that has been expressly set up by our colonial masters to suppress free speech in a colony. The outcome would be that Section 124 A, a colonial law, in all its glory, then grabs Indian citizens for inciting disaffection against the government. After the constitution came into force, with the introduction of Article 19(1) A, Heydon’s Rule had no application on Section 124 A, IPC.
- D) Kedar Nath Singh vs. State Of Bihar read down Section 124 A, IPC, and the Supreme Court held that it proposed to limit its operation only to such activities as come within the ambit of the observations of the Federal Court, that is to say, activities involving incitement to violence or intention or tendency to create public disorder or cause disturbance of public peace.
The Supreme Court, after 1962, pronounced numerous judgments on an important principle of Interpretation of Statutes i.e. reading down cannot be reading in. While interpreting Section 124A, the words like violence etc. cannot be read in it, if correct principles of Statutory Interpretation are to be applied.
Law Commission Report on Sedition, 1971 and Amendment to CrPC 1973:
The question of re-examining ‘sedition’ had already been raised by the Law Commission. The Commission recommended in its 39th Report (1968), titled The Punishment of Imprisonment for Life under the Indian Penal Code, that there are certain extremely anomalous situations in which certain offenses have been made punishable by severe punishment, and that offenses such as sedition should be punishable by either life imprisonment or rigorous or simple imprisonment for up to three years.
The Commission then made three critical recommendations for inclusion in section 124A of the IPC in its 42nd Report (1971), titled Indian Penal Code. They were as follows:
- Mens Rea should be incorporated into the section;
- The scope of the section should be expanded to include the Constitution of India, legislatures, and the administration of justice (Judiciary), as well as the executive government, against whom disaffection would not be tolerated; and
- Bridging the ‘odd’ gap between ‘life imprisonment’ and ‘imprisonment which may extend to three years, or a fine, by setting the maximum penalty for sedition to be 7 years.
However, the Government rejected the Commission’s amendment proposal. The 43rd Report of the Law Commission on Offenses Against National Security (1971) included a section on ‘sedition’ as part of 1971, National Security Bill. Section 39 of this Bill dealt with ‘sedition’, which was just a repetition of the 42nd Report’s altered section. The panel requested in its Report that the section’s scope be enlarged to include the Constitution, the legislature, and the judiciary, as well as any government created by law, as institutions against which ‘disaffection’ should not be tolerated.
As a result, sedition became a cognizable offense for the first time in the 1973 Code of Criminal Procedure (CrPC), which succeeded the 1898 CrPC. In 1973, India made sedition a cognizable offense for the first time in its history, allowing for arrest without a warrant. Thus, sedition is currently a cognizable, non-bailable, and non-compoundable offense under the law, carrying a maximum sentence of life imprisonment, with or without a fine.
The Law Commission has proposed invoking Section 124A to penalize only acts done to disrupt public order or overthrow the government through violence and illegal methods. Additionally, it stated in its August 2018 consultation document on sedition that while the charge of sedition is necessary to maintain national integrity, it should not be used to stifle free speech.
BAGGAGE AND BACKGROUND INFORMATION:
Sedition has been used against cartoonists, students, journalists, historians, authors, actors, and directors frequently in recent years, although sedition applies only when there is a clear and immediate incitement to violence. This has transformed every profession that professes fee speech into a high-risk endeavor and every institution into a checkpoint. There is no distinction between what should be done and what can be abstained from, and both categories have amounted to sedition in and of themselves.
Between 2014 and 2019, India filed 326 sedition cases, 141 of which resulted in only six convictions. According to data published on the website of the National Crime Records Bureau (NCRB), cases of sedition and violations of the draconian Unlawful Activities (Prevention) Act increased in 2019, yet just 3% of sedition cases resulted in convictions. In 2019, the number of sedition cases increased by 25% and arrests increased by 41% over the previous year. In 2019, a total of 93 sedition instances were reported, with 96 arrests and 76 charge sheets filed, up from 70 cases, 56 arrests, and 27 charge sheets the previous year.
UNLAWFUL ACTIVITIES (PREVENTION) ACT, 1967
India’s wars with China and Pakistan resulted in severe UAPA; there is no opportunity for anticipatory bail, and the minimum punishment is five years, with the maximum being life imprisonment. In terms of bail, the prosecution need simply establish a prima facie case, and this rule should be considered in light of Sedition. Unlawful activity is defined as any behavior that is intended to jeopardize the State’s security or cause disaffection with India. Thus, here a contrast is created between the State – defined as Indian as a concept and as a country – and the current government. Despite this divergence, the evil of Disaffection remains codified. National Investigation Agency Act, 2008 (NIA) establishes an investigative organization under the Ministry of Home Affairs to assist with UAPA cases.
ORIGIN AND EVOLUTION OF UAPA:
UAPA was first passed in the year 1967. The origin of the act lies in the recommendation of a committee appointed by the National Integration Council, to look into the issue of ‘National Integration and regionalization’ for introducing ‘reasonable restrictions’. Based on the findings of the committee, the Constitution (16th Amendment) Act, 1963 was passed that introduced reasonable restrictions in the exercise of certain fundamental rights, namely:
- Freedom of Speech and Expression;
- Right to assembly peacefully;
- Right to form associations and unions.
Gradually, other anti-terror laws were repealed to widen the ambit of UAPA like:
- The Terrorist and Disruptive Activities (Prevention) Act, 1987 (TADA) was repealed in 1995;
- Prevention of Terrorism Act, 2002 (POTA) was repealed in 2004,
THE AMENDMENTS TO UAPA:
Originally the UAPA of 1969 was amended to make it an anti-terror law in 2004 and 2008. Although gone through several amendments, one of the major amendments in the act was made in the year 2004. The Unlawful Activities (Prevention) Act, 2004, increased its ambit by including punishment for the ‘Terrorist Act’ which was defined in Section 15 is seen as an attempt to keep POTA alive in its substance.
The most recent amendment has been made in the Act of 2019. The 2019 Bill was aimed at making the 2019 Act more effective in preventing unlawful activities and meeting commitments made at the Financial Action Task Force. Bill became law in August 2019, and provides the following provisions:
- Under the Act, the Union Government may designate an organization or an individual as a terrorist organization if it:
(i) commits or participates in acts of terrorism;
(ii) prepares for terrorism;
(iii) promotes terrorism; or
(iv) is otherwise involved in terrorism.
- Investigation of cases may be conducted by officers of the rank of Deputy Superintendent or Assistant Commissioner of Police or above. Or by the officers of the NIA, of the rank of Inspector or above, to investigate cases.
- Under the Act, an investigating officer is required to obtain the prior approval of the Director-General of Police to seize properties that may be connected with terrorism and if the investigation is conducted by an officer of the National Investigation Agency (NIA), the approval of the Director-General of NIA would be required for seizure of such property.
- The Act defines terrorist acts to include acts committed within the scope of any of the nine treaties listed in a schedule to the Act.
On the face of it, the Act appears to be like any penal provision enacted with both preventive and deterrent scope. But the application of the Act upon innocent individuals brings disaster to a civilized country. The law allows authorities to designate someone as a “terrorist” and detain them without producing any incriminating evidence. It also has stringent requirements for granting bail, which means individuals often spend months, sometimes years, in jail without being found guilty.
The validity of the Amendment Act, 2019 has been challenged in a Public Interest Litigation, Sajal Awasthi v. Union of India Writ Petition (Civil) No. 1076/2019, and it is pending before the Hon’ble Apex Court. The crux of this matter is that Section 35 of the Act empowers the Central Government to add the name of any organization or individual in the fourth schedule i.e. list of declared terrorists.
MISUSE OF UAPA – INCREASED ARRESTS, LOW TRIALS AND CONVICTIONS RATE:
Between 2016 and 2019, a total of 4,231 FIRs were filed under various sections of the UAPA, of which 112 cases have resulted in convictions (based on data from India’s National Crime Records Bureau). However, only 2.2 percent of cases registered under the law from 2016 to 2019 ended in a court conviction. Nearly 11 percent of cases were closed by the police for lack of evidence. Therefore, proving that increased use, however, has not led to many convictions and trials. Around 1,948 people were arrested under UAPA in 2019 – an increase of nearly 37 percent from the previous year. Justice D. Y. Chandrachud, a sitting Supreme Court judge, said the courts must act as the “first line of defense against the deprivation of liberty of citizens,” and this amplified the debate on the continuance of the Act in its current form.
FORGOTTEN FUNDAMENTAL RIGHTS WHILE DRAFTING AND IMPLEMENTING DRACONIAN LAWS:
When our constitution-makers were drafting the constitution, they had realized the importance and necessity – as reflected in the Constituent Assembly Debates – to protect what was already possessed by human beings i.e. the Fundamental Rights. Though all Fundamental Rights are equally important having the same level of relevance; the Right to life & Personal Liberty, the Right to Equality, and the Freedom of Speech & Expression has been the most cherished rights of all.
The Hon’ble Supreme Court in Maneka Gandhi vs. UOI (AIR 1978 SC 597), held that any law which deprives a person of his personal liberty should stand the test of Articles 21, 14 as well as 19 of the Constitution. Also, the principles of natural justice are sheltered under Article 21, and therefore, no person is deprived of his voice to be heard inside the court. Further to declare any state action or legislation invalid, the “Golden Triangle” of Articles 14, 19 and 21 can be applied.
The Hon’ble Apex Court in Satwant Singh Sawhney vs. D Ramarathnam (1967 3 SCR 525), held that personal liberty in its ambit also includes the right of locomotion and travel abroad. Hence, no person can be deprived of such rights, except through procedures established by law. Since the State had not made any law regarding the regulation or prohibiting the rights of a person in such a case, the confiscation of the Petitioner’s passport violates Article 21 and its grounds being unchallenged and arbitrary, it is also violative of Article 14.
Despite the courts protecting citizens a few times, the legislature has consistently tried to encroach upon these sacrosanct rights and the most illustrative example of such laws are offensive parts of The Unlawful Activities Prevention Act (UAPA), 1967 and Section 124A, IPC.
DOES EVERY DISSENT AMOUNT TO SEDITION/UAPA AND THE SPEAKER A TERRORIST?
In India, the Freedom of the Press is implied in the freedom of speech and expression guaranteed under Article 19(1) (a) of the Constitution of India. Article 19(1) (a) guarantees that all citizens shall have the right to freedom of speech and expression. But this right is subject to reasonable restrictions imposed on the expression of this right for certain purposes under Article 19(2).
In Romesh Thapar vs. State of Madras (1950 SCR 594), Chief Justice Patanjali Shastri held that freedom of expression and the press lay at the heart of all democratic organization, for without open political debate, no public education, so critical to the efficient functioning of popular government, is possible. In this case, the Government of Madras prohibited the entry and ban of the English magazine ‘Cross Road’, which was printed and published in Bombay. It was deemed a violation of Free Speech and Expression because, without the freedom of circulation, publishing is of limited value.
The Hon’ble Supreme Court of India in Indian Express Newspapers (Bombay) (P) Ltd. vs. Union of India  2 S.C.R. 757, it was held that in today’s free society, press freedom is vital to social and political discourse. The press has increasingly adopted the role of public educator, enabling widespread access to formal and non-formal education, particularly in developing countries where television and other forms of modern communication are not yet available to all segments of society. Press aims to advance the public interest by publicizing facts and opinions that are necessary for a democratic electorate [Government] to make informed decisions. Newspapers, as publishers of news and viewpoints affecting public administration, frequently publish content that is unpalatable to governments and other authorities.
Unfortunately, the recent instances have completely vanished the line of distinction between what constitutes Sedition/UAPA and freedom of speech and expression. The recent custodial death of 84-year-old Father Stan Swamy who was charged under UAPA, and the case of an activist in Manipur, who was put in jail under NSA for merely stating that cow urine was not a cure for COVID is a barbaric example of the State autonomy under draconian laws.
Former Supreme Court judge, Justice Madan B. Lokur, remarked that the courts, society and the state should consider the mental trauma afflicted on the families of activists, journalists and civil society members accused of sedition under the Unlawful Activities (Prevention) Act and languishing in jail for months and stated that its ‘soft torture’.
The continuous and repetitive calls by Justice Deepak Gupta who supported the need for the Supreme Court’s intervention under Article 142 of the Constitution, and used it to lay down guidelines on the use of UAPA adding that it is a proven fact that UAPA can be misused. He even emphasized that “The UAPA should not remain in this form,” and questioned whether we were living in a “Police State”.
Apart from local laws the Act dishonors the international conventions and legal principles under the International Convention on Civil and Political Rights and United Nations Special Rapporteur on the Protection of Human Rights, and Fundamental Freedoms of which India is a signatory.
CONSTANT TARGETTING PARTICULAR COMMUNITY OR STATE:
In a democratic country like ours where the Rule of Law must prevail and not of man and where equality is the part of Basic Structure of the Constitution enshrined under Article 14-18, it is mischief on part of the authorities to misuse the provisions of UAPA or Sedition against a particular community or state. There is no rationale behind such decisions and the agony amplifies when the family members of those arrested are not even given any information as to his whereabouts.
A recent paradigm of ceaseless abuse of UAPA is Mohammed Irfan’s case who in his early 20s was leading a peaceful life until a counterterrorism squad in August 2012 entered his store in Nanded, a city in India’s Maharashtra state, and arrested him for allegedly plotting to kill Indian politicians and he was soon charged under the country’s draconian anti-terror law, the Unlawful Activities Prevention Act (UAPA). He was finally released in June 2021 after the court acknowledged that he was wrongly jailed, but it was all in vain as he had already spent nine years in prison.
Similarly, in November 2021, Tripura Police booked 102 social media handles, and 4 lawyers, under UAPA. Among those who have been booked by the Tripura Police were Maktoob Media’s journalist Meer Faisal, global correspondent CJ Werleman, and three Supreme Court lawyers including Ehtesham Hashmi.
RIGHT TO PROTEST AND UAPA:
The Supreme Court’s take on protests in Mazdoor Kisan Shakti Sangathan vs. Union of India (2018) 17 SCC 324, was that uprisings against governmental and parliamentary actions are legitimate. Though such protests and assemblies are supposed to be peaceful and non-violent, it is not new for protestors to dangle with the limits of law and protests to take a violent turn. Despite the Hon’ble Supreme Court’s reiterating the importance of people’s right to protest, the UAPA and Sedition stand firmly as a hindrance in its way. Approximately 1,100 protestors are under arrest and 5,558 are kept in preventive detention concerning the CAA-NRC protests. Out of the arrested people, some have been arrested under the Unlawful Activities (Prevention) Act.
In similar yet different orders, the trial court while granting bail to Jawaharlal Nehru University (JNU) students Natasha Narwal and Devangana Kalita held that the court is constrained to state that the State appears to have blurred the line between the constitutionally guaranteed ‘Freedom to protest’ and ‘terrorist action’ in its haste to crush dissent and its dread of things getting a matter of hand. If this type of blending takes traction, democracy will be jeopardized.
UAPA THROUGH THE PRISM OF CONSTITUTIONALITY
Targeted Categorisation: As illustrated earlier, the amended act, in addition to the categorization of organizations or groups as terrorist organizations, extends the power to include individuals as terrorists. The jurisprudential principle of criminal and constitutional law ‘innocent until proven guilty’ is blatantly disregarded by the Executive while applying draconian legislation and this tenet of criminal and constitutional law has no place in the UAPA. It further infringes the International Covenant on Civil and Political Rights, 1967, which identifies the stated principle of Universal Human Rights. As per the scheme of the Act, the person will be treated as a terrorist from the very moment of applying/misapplying this law.
Absence of intelligible differentia: There is no rational basis/intelligible differentia to categorize a person or organization as a terrorist, and such acts are inconsistent with the object it sought to achieve. It gives unfettered powers to the Government without any safeguards, the innocent individuals will languish in jails for decades to come. A clear encroachment upon fundamental rights can be seen, for example, without even a charge sheet filed, those arrested under the UAPA can be detained for 180 days, therefore, directly violating Article 21 of the Constitution. It imperils the very existence of public debate, freedom of the press, and criminalizing the enforcement of civil liberties.
Almighty Government becomes the most powerful: It bestows upon the government vast discretionary powers and also empowers the creation of “special courts with the ability to use confidential witnesses and to hold closed-door hearings.” The UAPA works on ‘belief and apprehensions’, the Act enables the Parliament to curb the rights and freedoms of free citizens in the name of the protection of ‘the sovereignty and integrity of India’. However, the problem remains whether the Parliament under any circumstance can label an individual as a terrorist purely based on a belief that he is involved in terrorism without any trial or investigation whatsoever.
In Indra Das vs. State of Assam (2011) 3 SCC 377 and Arup Bhuyan vs. State of Assam (2015) 12 SCC 702. By these judgments, the Supreme Court unambiguously stated yet again that only speech that amounts to ‘incitement to imminent lawless action’ can be criminalized. The Apex Court also held that mere membership of a banned organization cannot criminalize a person unless he is proven to have resorted to acts of violence or incited people to imminent violence. The Union of India has, however, sought a review of these judgments on the issue related to the membership of banned organizations.
ARE THESE PROVISIONS LICENCE TO ABUSE POWER?
In 2019, the petitions were filed to contest the constitutional validity of Sections 35 and 36 of the Unlawful Activities (Prevention) Act, 1967 (UAPA) as amended in 2019 where it was prayed that Sections 35 and 36 be struck down and declared unconstitutional. The constitutionality of Sedition is also pending before the Hon’ble Supreme Court. Many questions can be raised from both sides of the spectrum while discussing UAPA or Sedition like:
- a) There have been far fewer convictions and does it make the law bad?
- b) Is introducing draconian laws without any constitutional safeguards, the only solution to the deal with the citizens of a free nation?
- c) Who will compensate the free & innocent citizens who have lost decades in detention or solitary confinement under UAPA or Sedition?
- d) Did the members of the Constituent Assembly conceptualize that the innocent people of this country will be thrown behind the bars without trials, bail, and constitutional safeguards under draconian laws?
- e) Is there any other effective way to deal with terrorism where innocent people can have safeguards?
Every law has the potential to be abused, but the provisions that have disastrous implementation and consequences if they are misused, such laws shall have balancing measures to ensure the accountability of the Executive. The judiciary as an institution understands that parliament has its ways of implementing indirectly what could not be done directly. How can it be expected that UAPA or Sedition will be different under any regime of the Government? Thus, an urgent need of the hour is to think differently and come up with a correct solution before such laws become a norm in our free nation. By no stretch of Imagination, Sedition & UAPA gives a license to the Government beyond constitutional limits to abuse power. A donee of a limited Power, cannot in the exercise of that power, expand that very power.
Impact of the recent judgments:
In Shreya Singhal vs. Union of India, (2013) 12 SCC 73, this judgment struck down the 66A IT Act. Two points can be clearly understood by reading this judgment:
- The citizens can discuss or advocate free speech, it covers them completely, and only goes away when there is a reasonable apprehension of offense or violence is there on the part of the State.
- Section 66A, IT Act would have an enormous chilling effect on free speech. If the State starts booking the persons including journalists and dissensions with Sedition or UAPA, it would have an enormous impact on the free speech. If the journalists know that they are to be booked, they won’t speak anything in the democracy, and also the provisions of Anticipatory bail are absent under draconian legislation.
In Shayara Bano vs. Union of India (2017) 9 SCC 1, the Supreme Court held that arbitrariness as translated to manifest arbitrariness would negate legislation or provision of law as well as Article 14. By applying manifest arbitrariness, Sedition or offensive parts of UAPA shall be declared unconstitutional.
Read in Parts:
SEDITION & UAPA – Are These Provisions License to Abuse Power? – Part 1
SEDITION & UAPA – Are These Provisions License to Abuse Power? – Part 2
SEDITION & UAPA – Are These Provisions License to Abuse Power? – Part 3
SEDITION & UAPA – Are These Provisions License to Abuse Power? – Part 4
The law of Sedition was once used as a sword by our colonial masters, to establish their rule in British India, and muzzle the dissent of Indian citizens, is now continued to be used as such, by the successive governments. Its usage in the old form and the offensive parts of UAPA defeat the objective of Part III being introduced in the Constitution that was absent in the Government of India Act, 1935. In reality, the excesses of Sedition & offensive parts of UAPA have made innocent citizens of our nation suffer immensely as subjects under a Monarchy. This deterioration hasn’t happened in a day but it happened slowly due to the apathy of all successive governments, and the collusion of the Irresponsible Executive. The judiciary, as the last bastion of Citizens’ freedoms & liberties often protected the citizens, but not enough, wherein, no room is left for the executive to abuse powers.
Lord Atkin in Liversidge vs. Anderson  UKHL 1, commented upon the attitude of judges, who upon questions involving liberty, show themselves more executive-minded than the executive. He regarded with suspicion the attitude of judges who, when confronted with arguments regarding the subject’s liberty, demonstrate themselves to be more executive-minded than the executive. Lord Atkin stated that their function is to give words their natural meaning, perhaps with a wartime bias toward liberty, but following the dictum of Pollock C.B. in Bowditch v. Balchin (1850) 5 Ex 378, which was cited with approval by Lord Wright in Barnard v. Gorman  AC 378, 393. It held that in a case involving the subject’s liberty, we cannot depart from the statute’s natural construction. The laws are not quiet in this land, amidst the clash of arms. They may be altered, yet they communicate in the same language during war and peace. It has always been one of the pillars of liberty, one of the principles of liberty for which we are now fighting on recent authority, that judges are impartial and stand between the subject and any attempted encroachment on his liberty by the executive, vigilant to ensure that any coercive action is justified by law. Lord Atkin said that he has listened to arguments in the case that would have been acceptable to the Court of King’s Bench during the reign of Charles I.
It is the collective responsibility of all three organs of the Constitution – the Legislature, Executive and Judiciary to ensure that draconian provisions even with prescribed safeguards shall not be misused. It is important to fix high standards of accountability of the Executive, in terms of false and frivolous cases of Sedition and UAPA slapped on innocent people due to which they languish in the Jail for decades. And the responsibility of the Judiciary is to the greatest extent to remain a trusted protector of Fundamental Rights. A recent pending matter before the Hon’ble Supreme Court might end the debate on Sedition by declaring it unconstitutional.
There is an immediate need for an Ombudsman in all spheres of Governance, especially, in the spheres where the chances of abuse of power are maximum. The numerous examples would be wrongful detentions, arrests, and convictions, and this responsibility is altogether more as India is a signatory of the conventions of Human Rights that has been ratified by the State. All the treaties, conventions, and protocols have to be respected by Indian State with the utmost seriousness. It is the responsibility of the Union Government to pass legislation to appoint an Ombudsman to adjudicate the disputes arising out of wrongful detentions, arrests, and convictions, and compensate the victims adequately.
The free citizens of India shall remember that our freedom fighters like Mahatma Gandhi, Bal Gangadhar Tilak, Jawahar Lal Nehru & many other Indian patriots before independence have suffered in jails under Sedition & other repressive laws after convictions with long sentences. Some of our freedom fighters have sacrificed their lives to get freedom from our colonial masters, with the hope to build India as a free nation, in a real sense. Our founding fathers wanted to give this country and its citizens a free way of life, under the constitutional ethos and culture of India. The eternal vigilance of citizenry avoids the abuse of power, and when, the lamp of liberty burns bright in every citizen’s mind and heart, the Fundamental Rights would be followed in letter and spirit within the constitution ethos.
The Law Codes
Dr. Rohit Samhotra
Supreme Court of India