New Delhi: Legal experts believe there is no case against the eminent citizens who wrote a letter to Prime Minister Narendra Modi about the growing incidents of mob lynching.
“No offence was committed in this case, forget sedition,” said Alok Prasanna Kumar, a senior resident fellow at Vidhi Centre for Legal Policy, Bangalore. According to Kumar, the case will be quashed eventually as it has no merits. “It seems the judge did not apply his mind before passing the order to register an FIR against the accused,” he added.
Last week, an FIR was registered in Bihar’s Muzzaffarpur district against 49 persons, including Ramachandra Guha, Mani Ratnam and Aparna Sen, who wrote an open letter to Modi raising concerns over the growing incidents of mob lynching. The case was registered after an order was passed by the chief judicial magistrate of Muzaffarpur, Surya Kant Tiwari, two months ago on a petition filed by local advocate Sudhir Kumar Ojha. According to Ojha, the accused “tarnished the image of the country and undermined the impressive performance of the Prime Minister” besides “supporting secessionist tendencies”. Ojha is known as serial litigant and was recently in the news for filing cases against Pakistani Prime Minister Imran Khan and Delhi chief minster Arvind Kejriwal.
Echoing Kumar, Supreme Court lawyer and author of The Great Repression: The Story of Sedition in India Chitranshul Sinha told The Wire, “If you read the FIR, you will notice that Ojha did not make a case for the imposition of Section 124A (sedition) or any other provision. His complaint sounds ambiguous. Therefore, the magistrate had a greater duty to ensure that the judicial process wasn’t abused. He, however, failed to do so despite no part of Section 124A being attracted. In fact, there is a doubt over the magistrate’s territorial jurisdiction to even entertain the complaint.”
According to former Chief Justice of the Delhi high court and chairman of the 20th Law Commission of India A.P. Shah, “criticism is not sedition”. Commenting on the case in an opinion piece published in The Hindu, Justice Shah wrote, “It is evident that if you take the letter as a whole, leave alone sedition, no criminal offence is made out. Surely, this court decision warrants an urgent and fresh debate on the need to repeal the sedition law, for it has no place in a vibrant democracy.”
It can be noted that in Kedar Nath Singh vs State of Bihar (1962), a five-judge bench of the Supreme Court ruled:
“(a) citizen has a right to say or write whatever he likes about the Government, or its measures, by way of criticism or comment, so long as he does not incite people to violence against the Government established by law or with the intention of creating public disorder. The Court, has, therefore, the duty cast upon it of drawing a clear line of demarcation between the ambit of a citizen’s fundamental right guaranteed under Art. 19(1)(a) of the Constitution and the power of the legislature to impose reasonable restrictions on that guaranteed right in the interest of, inter alia, security of the State and public order.”
Experts believe in the current case, none of the criteria for sedition outlined by the Supreme Court are fulfilled. Moreover, the apex court in Balwant Singh v State of Punjab (1995) acquitted people who had been charged with sedition for shouting slogans such as “Khalistan Zindabaad” and “Raj Karega Khalsa” outside a cinema hall after Indira Gandhi’s assassination.
The court held:
“It appears to us that the raising some slogan only a couple of times by the two lonesome appellants, which neither evoked any response nor any reaction from anyone in the public can neither attract the provisions of Section 124A or Section 153A IPC Some more overt act was required to bring home the charge to the two appellants, who are Government servants. The police officials exhibited lack of maturity and more of sensitivity in arresting the appellants for raising the slogans – which arrest -and act the casual raising of one or two slogans – could have created a law and order situation, keeping in view the tense situation prevailing on the date of the assassination of Smt. Indira Gandhi. In situations like that, over sensitiveness sometimes is counter-productive and can result is inviting trouble. Raising of some lonesome slogans, a couple of times by two individuals, without anything more, did not constitute any threat to the Government of India as by law established not could the same give rise to feelings of enmity or hatred among different communities or religious or other groups.”
Referring to the Balwant Singh judgement, Justice Shah in his opinion piece wrote, “[the] same lens must be used to examine the present letter.” According to Justice Shah, “The law and its application clearly distinguishes between strong criticism of the government and incitement of violence. Even if the letter is considered hateful, or contemptuous and disdainful of the government, if it did not incite violence, it is not seditious. Unfortunately, Indian courts have, especially recently, repeatedly failed to appreciate this distinction.”
Given the misuse of the law against sedition, last month Justice Deepak Gupta of the Supreme Court had asked for its abolition. On September 7, while delivering the valedictory address at a workshop organised by the Praleen Public Charitable Trust and Lecture Committee in Ahmedabad, Justice Gupta said, “In my view, the law of sedition needs to be toned down if not abolished and the least which the government can do is to make it a non-cognizable offence so that the persons are not arrested at the drop of a hat.”
According to Justice Gupta, “In a country which is governed by the rule of law and which guarantees freedom of speech, expression and belief to its citizens, the misuse of the law of sedition and other similar laws is against the very spirit of freedom for which the freedom fighters fought and gave up their lives. The shoulders of those in power who govern should be broad enough to accept criticism. Their thinking should be wide enough to accept the fact that there can be another point of view.”
Meanwhile, supporting the accused named in the FIR, as many as 185 persons of eminence have written an open letter in solidarity. “All of us, as members of the Indian cultural community, as citizens of conscience, condemn such harassment. We do more: we endorse every word of the letter our colleagues wrote to the Prime Minister,” read the letter.
“Criticising the ruling party does not imply criticising the nation. No ruling party is synonymous with the country where it is in power. It is only one of the political parties of that country. Hence anti-government stands cannot be equated with anti-national sentiments. An open environment where dissent is not crushed, only makes for a stronger nation,” it added.