NSA For Cattle Smuggling, Sedition For Dancing: How Laws Are Being Abused by Govts

“If you want good laws, burn those you have and make new ones.”

—Voltaire

On February 12, at least 14 students of Aligarh Muslim University (AMU) and several ‘unidentified’ people were charged with sedition in Uttar Pradesh. Their crime: alleged assault on an English TV news channel crew. If that sounds bizarre, consider this. In the first week of this month, five people were sent to jail under the National Security Act (NSA) in two separate cases of cow slaughter and ‘cattle smuggling’ in Madhya Pradesh. The NSA for cow-related cases could, perhaps, have been understandable had the state continued to be under a BJP government. But there has been a change of guard in Madhya Pradesh and it is a Congress-led government which decided that killing and smuggling cows are crimes that “threaten the security” of India. Though state home minister Bala Bachchan defended the action, saying the suspects were repeat-offenders, senior Congress leaders were aghast at the use of a law fit only for terrorists. Former finance minister P. Chidambaram said the use of NSA by the MP government was “wrong”. The five men are now locked up in separate jails. The AMU case would not come as a surprise for many as Uttar Pradesh has a long list of cases filed for sedition or under provisions of the NSA, a fact acknowledged officially by the Yogi Adityanath government.

The Madhya Pradesh and UP cases are just symptoms of a bigger malaise sweeping through India—the indiscriminate use of harsh and archaic laws, mostly against people seen to be dissenting against the Centre and state governments. People protesting against a contentious bill have been charged with sedition in Assam, a journalist critical of a chief minister has been booked under the NSA in Manipur and left-leaning activists have been slapped with the draconian Unlawful Activities (Prevention) Act (UAPA) in Maharashtra. Activists and critics see a pattern in the crackdown, saying the use of such laws—which allow the government to jail people for long periods without trial—is meant to browbeat dissenters and political opponents into submission (‘Sshh! Government is Working’).

“There is something that unites all of them (sedition law, NSA, UAPA). It is the inherent undemocratic tendency of these laws which somewhere res­trict the fundamental freedoms that the Constitution guarantees to people,” says law expert Anushka Singh, an assistant professor at Ambedkar University, Delhi. “At one level, every law restricts the liberties of the people by laying down norms of conduct, but there is a justification for penal provision in a democracy; the justification could be anything related to law and order and personal security of citizens involved. But these laws are particularly prone to undemocratic tendencies of the state because of their vague nature and the overriding powers they give to the executive allowing for their arbitrary use,” adds Singh, who has written the book Sedition in Liberal Democracies.

Sedition—written into Section 124A of the Indian Penal Code (IPC)—has arguably emerged as the most abused law in recent times; it’s apparently the answer to all opponents and dissenting voices that the party in power wants to stifle. The law has come in handy at least in two states of the Northeast, where at least six people, including a Sahitya Akademi award winner, a journalist and an activist, have been charged with sedition since January. They were opposing the Citizenship (Amendment) Bill 2016, which aims to ease the process of getting Indian citizenship for non-Muslims from three neighbouring countries.

One of those charged with sedition is Assam’s firebrand activist Akhil Gogoi, who was once part of Anna Hazare’s anti-corruption movement. “We have been carrying out agitations since the time Hiteswar Saikia was the Congress chief minister in the early 1990s. We had also agitated against the 15-year Congress rule in Assam. I have even said former CM Tarun Gogoi should be thrown into the Brahmaputra. But I have never felt so threatened in my life…Any ind­ividual who believes in democracy feels threatened under the BJP rule,” says Gogoi, who has been charged along with journalist Manjit Mahanta and writer-intellectual Hiren Gohain (‘Any Criticism is Wormwood’).  “I have been sent to jail at least 36 times, many a time during the Congress regime. but never charged with sedition,” Gogoi adds.

Former Assam Police director general Harekrishna Deka agrees that the charges against the three Assam activists are unwarranted. “Hiren Gohain (and the others) has said nothing provocative or threa­tening to the state or the government…By slapping sedition charges, the BJP government has shown its intolerance towards a democratic movement,” Deka says.

In Manipur, TV journalist Kishorechandra Wangkhem is in jail for more than two months, charged under the NSA for an expletive-laden Facebook video criticising chief minister N. Biren Singh. Ranjita Elangbam, his wife, questions how her husband could be a “threat to the state” for merely criticising the chief minister or the government. “This is complete misuse of power. The government is so scared of the voice of the people. They don’t want anyone to question them. The government is trying to create a sense of fear among the people in general by jailing my husband under the NSA,” Ranjita tells Outlook. “The people of Manipur have been suffering for long for various reasons. Under the Armed Forces (Special Powers) Act (AFSPA), human rights have been snatched away,” she adds. Kishorechandra was first accused of sedition—the charge was thrown out by a local court in Imphal. Two days later, he was charged with harsher provisions of the NSA and sent to jail on November 27.

In the AMU case, the sedition charge appears ridiculous, says a former student union leader. “It’s so fake, bey­ond any logic. Even a rickshaw-puller will tell you it defies all logic. These days, anybody can come and say that pro-Pakistan slogans were shouted and police will slap sedition charges against us,” says Faizul Hasan, a former president of the AMU Students’ Union. “When it comes to AMU, pol­ice will immediately slap sedition charges. And when we give a thousand evidence against right-wing goons, not a single person is charged,” he adds.

Official data of the National Crime Records Bureau (NCRB) show nearly 180 arrests under the sedition law since 2014 till 2016-end, when the NCRB’s yearly crime report was published.  In Assam alone, police have registered at least 245 sedition cases since 2016, when the BJP came to power in the state. In many of these, the accused are “unknown people” and the majority are against militants. Jayshree Bajoria, author of the Human Rights Watch report Stifling Dissent, points out that police had not filed charge-sheets in over 70 per cent of the cases between 2014 and 2016, while only two people were convicted (‘In Course of Persecution’).

Some of the cases make no sense. Last year, Jharkhand Police charged 20 Adivasi rights activists with sedition for Facebook posts criticising the BJP government and for allegedly inc­iting villagers to bar “outsiders”. More bizarre is the case from Bihar’s Rohtas district where eight people, including five children, were charged with sedition for dancing to a song carrying the word “mujahid”, or holy warrior. The boys were dancing at a function where a DJ was playing the tune. In December 2017, four women were charged with sedition in Uttar Pradesh after they blocked chief minister Adityanath’s convoy. In January 2018, the UP government said it had invoked NSA against 160 people since assuming office a year earlier. Since then, the government has ordered NSA even on people accused of stealing test papers for college admission and jobs.

The NSA net had also caught Chandrashekar Azad, founder of Dalit group Bhim Army. He was released from jail last September after more than a year. The Congress and other political parties say Azad was a victim of the UP government’s “political vendetta”. Umar Khalid, an activist who was charged with sedition along with former Jawaharlal Nehru University Students’ Union president Kanhaiya Kumar and eight others, says the law “gives extraordinary power to any government in power, whether it’s the BJP today or Congress tomorrow”. These students were accused of shouting anti-India slogans in JNU in February 2016. The charge-sheet was filed three years later. “This government doesn’t tolerate any opinion contrary to its worldview. There is an attempt to make Hindutva ideology the nationalist narrative. Anyone who doesn’t fit into the Hindutva agenda is termed ­anti-national and sedition charges are applied,” Khalid says.

Their widespread use notwithstanding, sedition charges invariably fail judicial scrutiny in most cases. In Tamil Nadu, a magistrate court asked police to drop sedition charges against journalist R. Gopal of Nakkheeran, a bi-weekly magazine that had published a series of salacious reports on governor Banwarilal Purohit. The reports had linked Purohit and his secretary Rajagopal to Nirmala Devi, a professor arrested for soliciting girls for top officials of Madurai Kamaraj University. The court said sedition was not the appropriate law for taking action against Gopal.

In 2015, the Supreme Court had warned police against the indiscriminate use of Section 124A, saying authorities are bound by its judgment in the 1962 Kedar Nath Singh case, the first person to be tried for sedition in independent India. In the case, the top court had limited the scope for invoking sedition charges and pointed out that mere criticism of the government was not seditious.

As the debate over draconian laws spread, the Law Commission of India circulated last year a consultation paper which gave broad hints that the sedition law is being misused and needs redefining. “Given the fact that all the existing statutes cover the various offences against the individual and/or the offences against society, will reducing the rigour of Section124A or repealing it be detrimental or beneficial, to the nat­ion?” the paper asked. The paper, as expected, didn’t see any forward movement. On February 5, junior home minister Hansraj Ahir told Parliament that there is no proposal to scrap the law. People, especially those on the right of the political div­ide, even argue that the law is necessary to maintain India’s territorial integrity. Former Union minister and senior lawyer Jagdeep Dhankar, who heads the BJP’s legal affairs department, says sedition is “indisputably anti-national” and it cannot be viewed through a political prism. “Tukde-tukde cannot be justified. Security of the nation is non-negotiable and calls for zero tolerance,” he says, using a term often used by the right-wing to describe people they consider anti-national. He defends the use of NSA for cow slaughter, vis-a-vis the latest case in Congress-ruled MP, saying: “Respect and commitment to the cow is deep-rooted and any outage on this is an obvious challenge to public order.” Any law can be misused and to focus on a few laws is inappropriate, he warns.

Experts don’t agree. They say some laws are more evil and enacted to serve an evil purpose. Anushka Singh points out the inherent problems in UAPA. “In all extraordinary laws­­—it was the case with TADA, POTA, and now UAPA—the starting point is they are not going to follow ordinary democratic procedures and will not guarantee safeguards that ordinary laws allow us. The rights of the accused are restricted. To begin with, these are laws that have no reason to exist in a democracy,” she says.

Activists and lawyers in Jammu and Kashmir and the Northeast hold the AFSPA as a primary example for an evil law as it gives sweeping extra-judicial powers to soldiers during counter-insurgency ops, leaving scope for misuse. “It is this immunity to the armed forces that leads to their impunity, and vulnerability among civilians. Women are particularly vulnerable to sexual assault and rape in such conflict situations. We need more humane legislation to deal with protests and dissent,” says Teresa Rehman, author of the book The Mothers of Manipur, chronicling the story of 12 women who had stripped naked in front of the Assam Rifles HQ in Imphal in July 2004, protesting against the rape and murder of Thangjam Manorama, 32. Days after that momentous protest, a young Irom Sharmila began what would become the world’s longest hunger strike, demanding repealing of the AFSPA. Sharmila, 46, broke her fast in 2016, her battle abandoned halfway. The stifling law remains as the army says it needs it in militancy-hit areas. Reports of human rights violations abound but successive governments have refused to axe the law—enforced in the Northeast and Kashmir.

Kashmir has to deal with not one but two laws that activists say are equally suppressive. Earlier this month, former chief minister Omar Abdullah brought the spotlight back on the much-detested preventive detention law, the Public Safety Act (PSA), saying if his party forms the government, he would do away with the law. The PSA allows authorities to detain a person for six months without trial; and the detention can be extended to ­another six months. Last year, then governor N.N. Vohra removed a legal provision that barred the government from shifting people detained under PSA to jails outside the state. Since then, several political detainees have been moved out of Srinagar and thrust in jails across the country. “The PSA is part of the institutional mechanism of torture, used to silence or keep out of circulation those the state doesn’t want to create public influence,” says human rights activist Khurram Parvez, who faced the PSA whip in 2016. The case of separatist leader Masrat Alam Bhat, 48, is an example of endless detention. Alam was arrested in 2008. He is now serving his 37th preventive detention. Over the years, police have named Alam in 50 cases, including inciting protests and waging war against the state. But he is yet to be convicted in a single case.

For Bhat, the government’s alibi remains constant—he is a separatist and needs to be behind bars. For hundreds of people languishing in jails across the country for reasons as outlandish as dancing to a DJ’s tune, the concept of human rights would appear a crude joke. For activists and political opponents who strive to keep the flame of individual rights burning, this is a battle worth fighting. Last year, Supreme Court judge D.Y. Chand­rachud laid down the guiding principle of a true democracy. “Dissent is the safety valve of democracy. If dissent is not allowed, the pressure cooker may burst,” he said at a three-judge bench hearing on the Bhima-Koregaon violence. His caveat is hard to miss. The red flag cannot be ignored.

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National Security Act

The law was introduced in 1980 to enable “preventive detention in certain cases and for matters connected therewith”.

• The NSA empowers the central and state governments to detain a person with a view to prevent him/her from acting in any manner prejudicial to the security of the state, or maintenance of public order, or maintenance of supplies/services essential to the community.

• Under this act, a person can be detained without a charge for up to a year.

• A person can be detained for up to 10 days without being informed about the reasons for the detention.

• The act is often compared with the British Raj’s Rowlatt Act, which denied access to courts or lawyers to those who were detained, leading to the coining of the phrase ‘No vakil, no appeal, no daleel’.

Section 124A of IPC: Sedition

The sedition law can be applied to anyone who through “words, either spoken or written, or by signs, or by visible representation, or otherwise, brings or attempts to bring into hatred or contempt, or excites or atte­­mpts to excite disaffection towards the government estab­lished by law in India”.

• Maximum punishment is jail for life, to which fine may be added. Or impris­onment up to three years.

• Sedition is a non-bailable offence. Anyone charged under this law can’t get a government job.

• The law was originally drafted in 1837 by Thomas Macaulay, the British historian-politician who introduced western education in India and famously said, “It is, I believe, no exaggeration to say that all the historical information which has been collected from all the books written in the Sanskrit language is less valuable than what may be found in the most paltry abridgement used at preparatory schools in England”.

Unlawful Activities (Prevention) Act

It gives the State the power to combat terrorist activities that threaten, or are likely to threaten the unity, integrity, security, or sovereignty of India, or activities done with the intent to strike terror or those which are likely to strike terror in the people of India or any foreign country.

• The act was amended in 2008 after the Mumbai terror attacks and became almo­­st a mirror image of POTA, which was repealed four years earlier.

• Under UAPA, enacted in 1967, a person can be detained for up to six months without a charge.

Independent India’s first sedition case

Kedar Nath Singh, a member of the Forward Communist Party in Bihar, made a fiery speech in Begusarai on May 26, 1953. “Today the dogs of the CID are loitering round Barauni (in Begusarai). Many official dogs are sitting even in this meeting. The people of India drove out the British from this country and elected these Congress goondas to the gaddi…We will strike and throw out these Congress goondas as well,” he said about the Congress government in the state.

His sedition case went up to the Supreme Court in 1962. The court’s landmark ruling—in which it narrowed the scope of Section 124A—is still taken as the reference point for all sedition cases in India.

The court said mere “strong words used to express disapprobation of the measures of government” are not seditious. It also clarified that “comments, however, strongly worded...without exciting those feelings which generate the inclination to cause public disorder by acts of violence” are not sedition.

By Anupam Bordoloi with Preetha Nair and Salik Ahmed in Delhi, Abdul Gani in Guwahati, G.C. Shekhar in Chennai, Naseer Ganai in Srinagar and K.S. Shaini in Bhopal