How India uses colonial-era sedition law against CAA protesters
Jan. 21, 2020
Legal experts say authorities misuse legal provisions to slap protesters with colonial era law to stifle dissent.
New Delhi, India - In the first week of the new year, police in the eastern Indian state of Jharkhand registered a criminal complaint against more than 3,000 people protesting against a new citizenship law, accusing them of "sedition" among other charges.
India has seen nationwide protests since mid-December following passing of Citizenship Amendment Act (CAA) that activists and opposition politicians have described as divisive, discriminatory and against the country’s secular constitution. The new law is being challenged in the Supreme Court.
The sedition provision, which was drafted by the British colonial rulers in 1870, comes under Section 124A of the Indian Penal Code.
Rights activists say the law has been used to suppress dissent in India particularly against marginalised communities and minorities.
Over the past 18 months, more than 10,000 tribal farmers in mineral-rich Jharkhand state were accused of sedition in 19 police cases for opposing acquisition of lands for so-called developmental projects.
Hemant Soren, Chief Minister of Jharkhand state
Following criticism, Jharkhand's newly elected Chief Minister Hemant Soren, announced withdrawal of sedition charges slapped by his predecessor belonging to Prime Minister Narendra Modi's Bharatiya Janata Party (BJP).
Soren told Al Jazeera that he had asked for an enquiry into why the police used the charge against those who peacefully demonstrated in Wasseypur – a working class Muslim neighbourhood in Dhanbad district, which was the subject of the 2012 Bollywood hit "Gangs of Wasseypur".
"Charge of sedition is a serious allegation which needs to be applied with careful scrutiny. In this case, we have asked the officials to drop the charges and provide an explanation."
"Law is not meant to suppress people's voice, but to create a sense of security among the people. My government will respect law and protect people," said Soren, who comes from the Santhal indigenous (adivasi) community.
Soren government has also dropped charges against more than 10,000 adivasis slapped by the previous BJP government.
Attack on dissent
Sedition provision punishes anyone seen to "excite, or attempt to excite feelings of disaffection against the government", even though this may be by their words alone. It is a non-bailable offence, and has life imprisonment as the maximum punishment.
Jawahar Raja, a lawyer based in Delhi, explained that once police add a charge of "sedition", the maximum quantum of punishment increases, and the courts then view it as a serious offence, making it harder for the accused to secure bail, even if booked only for a speech offence. "The process of a long-drawn trial then becomes the punishment," said Raja.
Aloka Kujur was among the more than 10,000 slapped with sedition case in Jharkhand. She says "the police booked her under sedition for a Facebook post in 2018".
Kujur, who publishes magazines on literature and art, said the police issued a warrant to confiscate her property for her post that mentioned the threat to a rape victim.
"I faced threatens online. The local newspapers started publishing official statements saying that anyone with Marxist and Maoist books will be arrested. I had to give away my small collection of books, as I was unsure what will the police misconstrue against me using this sedition charge," she said.
Kujur recounts how prosecution lawyers called her "anti-national" inside the court during her trial.
In a similar case, an 83-year-old Jesuit priest, Stan Swamy, who has documented police abuse in tribal areas across the country, was charged with sedition in 2018 for his Facebook posts. One of his posts was a statement by the then home minister calling for dialogue.
Swamy declined to speak to Al Jazeera as he is facing police case in western Maharashtra state. His associate, Solomon said because of the sedition charge, the elderly activist was forced to stop writing on human rights abuses.
Sadaf Jafar, activist
Referring to the recent sedition cases, a senior Jharkhand police official admitted that the local police acted with excessive hostility against anti-CAA protesters.
"I cannot comment on use of sedition in previous cases against tribal farmers, but in this instance, the district police action shows a lack of knowledge and a lack of professional competence," Anil Palta, Additional Director General of Police (Training), Jharkhand, told Al Jazeera.
"If a provision of prevention of assembly of more than four persons, section 144 is violated, the protesters ought to have been booked under section 188, for disobedience, a bailable order. It was very far fetched of the district police to apply sedition charges."
Harsh police action
The harsh police action against anti-CAA protesters particularly in BJP-ruled states has alarmed rights activists.
More than 20 people have been killed in India's most populous state Uttar Pradesh (UP) where some of the initial protests turned violent. Authorities in the state have also said they would seek compensation from protesters for damages to state properties.
Sadaf Jafar, a political activist, was arrested from Lucknow, the capital of UP during anti-CAA protests.
"The police arrested me and imprisoned me for 20 days, I was not allowed to inform anyone," Jafar told Al Jazeera.
"We are supposed to be in an elected democracy, but our state governments are using colonial era laws to suppress even peaceful dissent of our own people."
Jafar alleged she was tortured and called Pakistani in custody because of her Muslim name. "They beat me so much that three weeks, later, my ankles are still swollen and blue, and my limbs hurt when I breathe."
Al Jazeera reached out to the office of the Director General of Police of UP and the Circle Officer of the area where Jafar was held but received no response at the time of the publication of the article.
Last December, about 600 anti-CAA protesters were accused of sedition in UP but later police dropped the charge.
Across India a number of people have been slapped with sedition charges for protesting against the law that people say is part of Modi's Hindu supremacist agenda as it makes faith as the basis for citizenship.
In the BJP-ruled Karnataka state, police invoked sedition case against a student for holding a "Free Kashmir" placard o January 9.
Last August the Hindu nationalist government stripped Kashmir of its special status and imposed a crippling communication and security lockdown in the Muslim-majority region.
Subsequently, thousands of Kashmiris, including minors, were thrown into jails under Public Safety Act (PSA), which Amnesty international has dubbed "lawless law". Under PSA people can be detained for up to two years without trial.
Between 2016 and 2018, the National Crime Records Bureau data shows, 332 people were arrested under the sedition provision, but only seven were convicted.
Lawyers point out that the problem is not conviction, but opposition to the government is termed "anti-national", making it easier for the police to make arrests citing any protests as a threat to national security.
Governments exploit legal loopholes
Legal scholars pointed out that the police continue to misuse the provision even though the Supreme Court in 2016 reiterated that criticising the government does not amount to sedition, or even to defamation.
"Though the court upheld the section 124A of sedition to be constitutional, it has watered down the provision," said Chitranshul Mishra, a Supreme Court lawyer and author of "The Great Repression - The Story of Sedition in India".
He added that the Supreme Court said only an action that incites or has the "tendency" to incite violence or public disorder can be construed as seditious. "But the definition of "tendency", "public disorder" has been left open so wide to interpretation that the police routinely use it to suppress dissent," he explained.
Gautam Bhatia, a lawyer and scholar, said colonial-era laws that criminalised any opposition has no place in a democracy.
In his book, "Offend, Shock or Disturb: Free Speech Under the Indian Constitution" Bhatia has documented how during India's independence movement, the British colonial government had accused Indian nationalist leaders including Mahatma Gandhi, and cultural activists under the same section for their writings, speeches, and theatre plays.
"The sheer breadth of its language allow it to be misused," said Bhatia.
"The police book thousands as 'unnamed' claiming they will add the names as they get further evidence, and as the case proceeds they are allowed to file supplementary charge-sheets in which they, for instance, can add names of any farmers from a village or a demonstrator or a political organiser, thus keeping a sword dangling over their heads to chill dissent."
Modi, who has been accused of turning authoritarian, has plans to overhaul the Indian Penal Code, most of which draws from the British colonial laws. But it has caused concern among activists as the right-wing government may further add stringent provisions in laws.
It recently amended the Unlawful Activities Prevention Act to empower the government to declare individuals "terrorists" and seize their properties.
Rights activists fear the law can be misused - a charge the government has denied.
Solomon, the Jharkhand activist, told Al Jazeera that "repeated cases of sedition show the police have been brainwashed to act like colonial masters."
"The result is that the most vulnerable communities suffer."
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