Backstory: Supreme Court's Observations on Sedition, Journalism Welcome But Don't Go Far Enough

A fortnightly column by The Wire's public editor.

In the past week, the Supreme Court has made two important iterations on sedition and the need to protect journalists from such charges. On June 1, while hearing a case involving two Telugu news channels, the apex court called for renewed scrutiny of the “ambit and parameters” of the laws governing sedition, “particularly in the context of the right of the electronic and print media to communicate news and information”. Two days later, charges of sedition (‘SC Quashes Sedition Case Against Vinod Dua, Says Every Journalist Entitled to Protection’, June 3) brought a year ago by Ajay Shyam, a BJP functionary from Himachal Pradesh, for Dua’s remarks on the Prime Minister Narendra Modi in his YouTube news show, were struck down. The apex court observed in the second case that “Every journalist is entitled to protection under the Kedar Nath Singh judgment (the famous verdict of 1962 on the scope and ambit of offence of sedition in the IPC).”

The damage caused by the use of sedition charges to the practice of journalism is incalculable. Media professionals know well the racing of the heart beat when the Democlean sword of sedition seems to lower itself over their heads. They have personally felt its “chilling effect” cramp the muscles of their fingers on a keyboard. “Chilling effect” is a useful term that has escaped the books of case law from other jurisdictions to become familiar in this country. Who can forget the sentence in the Shreya Singhal: “Such is the reach of the section and if it is to withstand the test of constitutionality, the chilling effect on free speech would be total, as per the court.” What is entailed is not the absolute freezing of personal or institutional agency, but an intermediate state that progressively results in precisely such freezing of mind and intent.

Journalism deemed “seditious” has a long history in India. We can go back to the fin de siècle years of the 19th century, when Bal Gangadhar Tilak was charged with sedition, not once but thrice, for his writings in Kesari.  The same law that had once shackled Tilak was to hobble Assem Trivedi a hundred years later.  If Tilak was charged for creating ‘disaffection’ against the British Raj, Trivedi was deemed to have “insulted national honour”. Over the years, the number of “media seditionists” have swelled in direct proportion to the thinning of the parameters of their alleged crime: Earlier this year sedition charges were filed against six senior and reputed media persons, Zafar Agha, Vinod Jose, Anant Nath, Paresh Nath, Mrinal Pande and Rajdeep Sardesai for – hold your breath – “misleading the public”.

The trepidations that drove the British Raj were well documented in the words of Herbert Hope Risley, while introducing the Press Bill of 1910 in the Council of the Governor General of India: “Everyday the Press proclaims, openly or by suggestion or allusion, that the only cure for the ills of India is independence from foreign rule…” Over a century later we have the Union home minister Amit Shah asserting, “Recently, slogans of ‘Bharat tere tukde honge‘ were raised in JNU. The Modi government sent such people behind the bars for sedition.” What is striking here is that despite differing historical junctures, the anxieties of those in power are strikingly similar and their instinct to deal with it through the use of draconian laws is also remarkably alike. It would therefore be naïve on our part to draw too much comfort from the Supreme Court’s recent observations on sedition.

Let me cite three reasons why this is so. First, in case after case involving the charge of sedition against media persons, the State has taken recourse to clubbing together various draconian laws in order to truly hobble the person so charged. Siddique Kappan, a freelance Malayalam journalist looking to do a story on the Hathras gang rape (he never wrote it), now finds himself in chief minister Adityanath’s prison on charges that include not just sedition, but two sections of the  Information Technology (IT) Act, 2008, and three sections of the Unlawful Activities Prevention Act (UAPA) (‘Reporter, Truth-Seeker, Family Man: The Siddique Kappan You Don’t Know’, Article 14) .

The Wire piece, ‘Why the SC’s Vinod Dua Verdict May Still Not Guarantee Sufficient Protection to Journalists’ (June 4), which unpacks the Dua judgment, brings me to my second reason. The fact is that even the apex court seems reluctant to go far enough in challenging the raison d’etre for the law of sedition. As the piece points out, the verdict pins its argument on Kedar Nath, which in fact “gives leeway to the executive to invoke the law against the vague offence of ‘intention or tendency to create public disorder’”. The apex court would have done better, it posits, by citing the verdict of “another five-judge constitution bench of the court in The Superintendent, Central Prison, Fatehgarh vs Dr.Ram Manohar Lohia (1960): “If the test applied in Lohia were to be considered to the facts in Dua case, an inference that Dua’s comments might have a tendency to lead to public disorder could not have withstood legal scrutiny.”

Gautam Bhatia in his book, Offend, Shock Or Disturb Free Speech under the Indian Constitution, has actually argued that if a judgment were to expressly analyse Section A in the light of judgments like Lohia, there would be no doubt that Section 124 A would have to go. But the bald fact is that the Supreme Court has not chosen to do so in the 56 years after that judgment and this speaks volumes for judicial intent.

My third reason is somewhat broader. The media are just one remove away from ‘the public”. They are not confined within a bubble. As long as the state continues to deploy in a loose and extremely repressive manner draconian laws like UAPA against members of the public, including human rights defenders and students, journalists too will not be safe. One of the judges who decided Dua was in fact party to the Supreme Court’s recent decision to deny Sudha Baradwaj interim bail.

As long as a climate of repression makes the air toxic; as long as attempts are made to quell the spirit of critical inquiry and extinguish freedom of speech and expression, reporters, editors, cartoonists, photojournalists will continue to be savaged by the state – and sometimes more so as is the reality in Modi’s ‘New India’. Even in the unlikely eventuality of media persons being spared sedition charges, the state has many a punitive recourse and big cheese lawyers to argue its cases.

A sedition law by any other name would cut as deeper, or even deeper.


The Tarun Tejpal case and phone records

One of the first pieces to unpack the Tarun Tejpal sessions court verdict was carried in The Wire (‘For the Judge, It Was a Feminist Who Was on Trial, Not Tarun Tejpal’, May 29). It made several observations that were amplified in subsequent commentary in other media, including the manner in which the survivor was framed despite the reforms brought in the 2013 criminal law amendment: “In rape trials, typically the line between prosecution and persecution is blurred, wherein rape survivors are treated as if they are the accused; and the rape trial is a pornographic spectacle.”

For media persons, this case is particularly important and not just because it involved a well-known editor. It was one of those early instances where mobile phone evidence was used. Also, the survivor happened to be a journalist. The article notes that “When the victim voiced her concern about protecting the privacy of her journalistic sources on phone or email, the court assumed she had something to hide.” It rightly highlights how free access to electronic records in situations like this could result in making available not just details of one’s personal life but those of one’s professional life as well.

Palestine calls out India

Palestine has spoken out against the Indian government’s pusillanimous stance on the Israel-Palestine conflict – most recently demonstrated by its abstaining from voting in the UN Human Rights Council (UNHRC) resolution of May 27 that registered “the grave human rights situation in the occupied Palestinian territories, including East Jerusalem”. Palestine’s foreign minister Riad Maliki minced no words in his letter to S. Jaishankar, Union minister of external affairs, stating that India’s abstention has stifled the effort to advance “human rights for all peoples, including those of the Palestinian people”.

This is a first and needs to be noted by the Indian media, which tends to blindly follow the Ministry of External Affairs’ diktats and stances even when well-considered policies are reversed. One of these was support for the “just cause of Palestine”. This time, as The Wire piece notes (‘Palestine Flays India’s Abstention from Crucial UNHRC Vote’, June 2), India’s statement eschewed that long used phrase. Is Jaishankar’s ministry signalling that India no longer considers the Palestinian cause just? If that is the case, it is shameful, especially at a time when governments and people across the world are speaking out more plainly than ever before on Israeli atrocities in Palestine. Once again India is perceived as being on the wrong side of history – an outcome that has become something of a hallmark of the present government. Remember those ‘Howdy Modi’ and ‘Namaste Trump’ extravaganzas?

Repression in Lakshadweep

Mail from Siyad Shamsudheen, a resident of Lakshadweep: “Lakshadweep is a group of 36 islands covering an area of only 32 sq km, with a population of 64,473 people (census 2011), 99 per cent of whom are Muslim. It is a Union Territory (UT) of India, administered by the president. There may be an administrator, chief commissioner or lieutenant governor. Day to day administration is in the hands of Administrator’s Advisory Committee which consists of the Administrator and the elected members of the District Panchayats. Previous administrators were either IPS or IAS officers, but the present one – Shri Praful Patel – does not have that background.

“On his first visit, the Administrator saw the anti CAA, NRC posters created two years back and ordered to arrest and fine people behind them. The life of natives started to change since the – including the curtailment of District Panchayat. When the nurses went on to strike for minimum wage (present wage is 8-12 k per month), the government arrested them without giving them a hearing. Rules are being amended to destroy the lifestyle of the local people. This story should be taken to each and every citizen of India. Let Lakshadweep re-gain its peace and harmony.”


Mujeeb Khan from Lakshadweep writes: “Lakshadweep, a place where there is zero crime rate and religious harmony, now has a fascist ruler in the guise of Praful Khoda Patel. He wants to take over our lands without our permission. The situation is really bad and now they have started putting people behind the bars as we have started to raise our voices. This is difficult to do because Lakshadweep is a place where media coverage is almost nil.  We don’t have any news channels of our own unlike other regions of India.”

COVID-19 and the older population

Nidheesh M.K., Research Scholar, School of Development Studies, Tata Institute of Social Sciences, Mumbai, argues why the emphasis for vaccinations should be on the older cohort:

“Global evidence has shown that the mortality rate from Covid-19 is higher among older people as compared to younger age groups and is significantly higher among people with co-morbidities. As of March 2021, 88 percent of India’s Covid-19 deaths were among people over the age of 45. In April, with the second wave of Covid-19, health systems in many Indian cities collapsed. The mortality rate has risen in major cities due to the unavailability of healthcare services and the shortage of oxygen supply. At the same time, the union government took three major decisions: it allowed foreign companies to administer vaccines in India; to vaccinate people between the age of 18 and 44 from May 1; and gave the power to two Indian vaccine manufacturers (Serum Institute and Bharath Biotech) to set the prices for 50 percent of their vaccine production. Except for the first decision, the other two have received a great deal of criticism.”

Addicted to religion

Reader of The Wire, Sachu Satheesan, has some thoughts about religion: “Weeds are  undesirable plants that inhibit the growth of valuable ones Similarly, there are some weeds in society which are driven by religion and have proliferated today. Recently Justice Rohinton Nariman observed that person aged above 18 has the freedom to choose religion but do we really have that freedom? I would say no because we are brought up to follow the religion of our parents and face social exclusion for not doing so.

“Every child is born into rituals. When children start schooling and make new friends, one of first questions they ask is whether you go to a church or temple. They may not even know what it means. As they grow, they are trained to defend their religion at all costs. The question is do we really need religion in order to socialise? Do we need to be fixated on a concept that is more addictive than drugs? Important questions in these times of religious polarisation.”

Whose side are you on?

Nishit Prajapati has a query: “I regularly read use your site to understand the news. But I haven’t seen anything yet on the latest Madras High Court ruling on Hindu religious processions allowed in Muslim majority area. Muslims of that area bigotedly petitioned against Hindus. See: https://www.barandbench.com/news/litigation/religious-intolerance-not-good-for-secular-country-madras-high-court

“Are you deliberately saving the face of the bigoted Muslims of Chennai?”

Condemning the ban on Hamid Mir

Excerpts from a statement from Radhika Coomaraswamy and Roshmi Goswami, chair and co-chair of SAHR: “South Asians for Human Rights (SAHR) condemns the increasing attacks on journalists, including the removal of Pakistan’s prominent journalist Hamid Mir from anchoring his prime time show on Geo News Network. This is a tumultuous moment for press freedom in Pakistan, as journalists continue to face an onslaught of attacks and arrests with many similar incidents happening in recent months….

“During the protest against the recent assault on journalist and vlogger Asad Ali Toor, Hamid Mir, along with other journalists, spoke out boldly against the military establishment in response to the Federal Minister Fawad Chaudhry’s allegation on BBC’s Hard Talk accusing journalists of fabricating attacks to claim immigration to other countries and that being a problem for the Inter-Services Intelligence (ISI) agency…. A Twitter trend of #ArrestHamidMir began the following day and Mir was barred from hosting his popular talk show. All journalists of Pakistan, including the Pakistan Federal Union of Journalists (PFUJ), has slammed Geo News and called for accountability for the ban…

“Pakistan ranks 145 out of 180 countries in the World Press Freedom Index – 2021 and in 2020, Pakistan ranked ninth on the Committee to Protect Journalists (CPJ) annual Global Impunity Index, with at least 15 killings of journalists unresolved since 2010.”

Maria Ressa

News has just come in that charges against Maria Ressa, founder editor of the Philippines news site, Rappler, for cyber libel – which carried a jail term of six years – have been withdrawn. She faces other cases too, but her supporters hope that all charges against her will now be dropped. With her fiercely independent journalism, Ressa was an early victim of President Rodrigo Duterte’s authoritarian government and its bid to crush dissent in the online media space.

Congratulations, Sukanya Shantha!

The Wire correspondent, Maharashtra-based Sukanya Shantha, has been awarded the ACJ Award for Social Impact Journalism for 2020. The announcement was made at the convocation of the Asian College of Journalism’s Class of 2021 on June 3 (‘The Wire’s Sukanya Shantha Wins ACJ Social Impact Award for Story on Caste in Indian Prisons’, June 3).  Sukanya Shantha’s journalism in these columns speaks for itself. It has consistently highlighted human rights abuses and espoused the concerns of those rendered voiceless by the state and society. Her path-breaking work on caste-based labour in Indian prisons, which won her this award, has prodded states like Rajasthan to amend their prison manual. As the ACJ representative put it, it shone a light on “injustice largely concealed from public view”.  Speaking on the occasion, Sukanya Shantha pointed out that Manu’s laws of caste hierarchy are faithfully reproduced within the microcosm of the jail. It is time, she said, that the prisoners’ rights discourse in India reflect the caste dimension.

Congratulations, Sukanya Shantha! Looking forward to your future work.

Write to publiceditor@thewire.in