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:

  1. There have been far fewer convictions and does it make the law bad?
  2. Is introducing draconian laws without any constitutional safeguards, the only solution to the deal with the citizens of a free nation?
  3. Who will compensate the free & innocent citizens who have lost decades in detention or solitary confinement under UAPA or Sedition?
  4. 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?
  5. 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:

  1. The citizens can discuss or advocate free speech, it covers them completely, and only goes away when there is a reasonable apprehension of offence or violence is there on the part of the State.
  2. 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.

Authors’ Opinion


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 [1941] 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 [1941] 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, 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, convictions, and compensate the victims adequately.

Also Read:
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?- Complete Article

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.

Read the latest order dated 11.05.2022 passed by the Hon’ble Supreme Court on the misuse of Sedition

Authors:

Lalima Gupta
Intern
The Law Codes

Dr. Rohit Samhotra
Advocate
Supreme Court of India