A Decade of Darkness: Our New Database Reveals How A Law Discarded By Most Democracies Is Misused In India

LUBHYATHI RANGARAJAN
 
04 Feb 2022 19 min read  Share

For 151 years, Indians expressing their right to free speech and expression have faced the prospect of being accused of sedition: ‘showing disaffection’ towards the State under section 124A of the Indian Penal Code. Our new database counts 13,000 people charged with sedition between 2010-2021 and provides unprecedented insight into India’s use of a law discarded by most democracies. Its use has risen inexorably over the last decade, most recently against public protests, dissent, social-media posts, criticism of the government and even over cricket results.

New Delhi: On 13 April 2006, the then Prime Minister Manmohan Singh presided over a conference with the chief ministers of Orissa, Bihar, Chhattisgarh, Maharashtra, Andhra Pradesh, Jharkhand. At this meeting, Singh declared that left-wing extremism posed the “single biggest internal security threat in India”. 


Following this, a security offensive called Operation Greenhunt was executed under home minister P Chidambaram of the United Progressive Alliance (UPA II) to “weed out” Maoists, from their forest redoubts and in urban India. Chidambaram denied the existence of this operation, and termed it a “media invention”. 


Yet, during this time, our new sedition database, launched on 4 February 2022, found the highest number of cases quoting sedition—section 124A of the Indian Penal Code—between 2010 and 2014 had been filed in West Bengal, Jharkhand, Odisha and Bihar, also known as the “red corridor”. 


Identifying contradictions like these are possible when patterns are drawn from data, something not always possible with government statistics. That is what our new database—which lists 13,000 cases of sedition between 2010 and 2021—does. 


The National Crime Records Bureau (NCRB) provides data on sedition cases only from 2014 onwards but, by its own admission, under-reports statistics because of the methodology it uses (more on this later).  


While the NCRB publishes statistics on the number of cases filed annually, people arrested, convictions, acquittals and other data on the criminal process, it does not offer context: It does not tell us why the case was filed, against whom and by whom, when and where. It also does not trace the journey of sedition cases through the judicial system. 


Our data fills in these and other gaps left by the NCRB. 


Using 1,300 legal documents, 800 media reports, 125 first information reports (FIRs) and more than 70 interviews with those accused of sedition, the database, called A Decade of Darkness, provides unprecedented insight into India’s use of a law discarded by most democracies. For instance:


– Over the 11 years in question, 106 sedition cases were filed against those who posted allegedly “anti national” or “pro Pakistan” content on social media: Facebook, Twitter, WhatsApp, Youtube and Tiktok. Except one case, all were filed after 2014.


– Since 2014 when the Bharatiya Janata Party (BJP) came to power, there has been a 190% increase in the number of women charged with sedition. Among these women were an artist, a filmmaker, an academic, an Adivasi, an activist, a student, a homemaker and a politician.


– 96% of sedition cases filed against 405 Indians for criticising politicians & govts between 2010 & 2021 were registered after 2014: 149 were accused of making “critical” and/or “derogatory” remarks against Prime Narendra Modi, and 144 against Uttar Pradesh (UP) chief minister Yogi Adityanath.


– 39% of 279 sedition cases filed by the UPA II government (2010-2014) were against those protesting a nuclear plant in Tamil Nadu, the rest mostly against Maoists. The 519 sedition cases filed by the Modi govt (2014-2020) were largely against protest movements, journalists, intellectuals.


– Those accused of sedition spent an average of 50 days in prison until a trial court granted bail, up to 200 days until a High Court did so. Trial courts rejected bail more than allowed it. At high courts, for every bail rejected, seven were granted. 


– When a court grants bail, it may compel the accused to pay a bail bond: from Rs 10,000 to Rs 200,000. Nearly every person accused of sedition that we interviewed said they had sold land, jewellery, livestock, and taken on debt to pay legal fees and bail bonds. 


– Our data found that of 126 people for whom trials have concluded, 98 were acquitted of all charges, 13 of charges of sedition only, and 13 were convicted. That is a conviction rate of 0.1%.


UPA II Sets The Sedition Trend

The battle against left-wing extremism under the second term of the UPA led to an offensive against activists and intellectuals in 2010 in Kamrej, Gujarat, with a background similar to the Bhima Koregaon-case, in which 16 lawyers, human rights activists, writers and academics have been in jail without trial since December 2018. 


In Kamrej, more than 20 activists and intellectuals were arrested on sedition and other charges on charges of “carrying out anti-national and unconstitutional activities and trying to instigate the minority and Adivasi people”.


Three years and eight months later from his first conference with India’s chief ministers, Singh and his counterpart at the Kremlin, Russian President Dmitry Medvedev, signed the Indo-Russian Nuclear deal to set up nuclear power reactors in Kudankulam, Tamil Nadu, nearly 1,900 km southeast of Kamrej. 


Between 2011 and 2012, the village of Idhinthakarai protested this construction: the Fukushima disaster in Japan was a cause for worry. The AIADMK government of chief minister J Jayalalitha charged anywhere from 3,000, 6,000 or 9,000 people in Kudankulam with sedition, most from fishing communities


Singh blamed a "foreign hand" for stoking these large-scale protests, as a result of which the foreign-donation licenses of nearly 4,000 NGOs were cancelled in 2012. 


Yet, it was the conviction of Binayak Sen, the vice president of the People’s Union for Civil Liberties in 2010, and the arrest of Aseem Trivedi, a cartoonist, in 2012, that pushed public conversation on sedition to the forefront under Singh’s tenure. 


In the background of the Lokpal and India Against Corruption movement, the BJP in opposition at the time, condemned Trivedi’s arrest as a threat to free speech, with LK Advani calling the period under Singh as "worse than the Emergency". 


The sedition charge against Trivedi was dropped, but the case continues against him even today. Sen was released on bail by the Supreme Court, and the case against him is still pending.


The Rise Of Sedition In The Modi Era

With the victory of the BJP and Prime Minister Narendra Modi in May 2014, another kind of political context began to play out in India. 


In August 2014, two months after the BJP came into power, seven people in Kerala were charged with sedition for not standing up for the national anthem. Three months later, 10 schoolboys were arrested in Kushinagar, UP, for wearing t-shirts of the Pakistan cricket team during a Muharram procession.


From then on, these were the kinds of cases that attracted sedition charges: An open letter on mob lynching, a remark about the Taliban takeover, calling Praful Patel a bio weapon, asking for ventilators in a Ludhiana hospital to combat the COVID-19 pandemic, "celebrating" Pulwama attack, protests around legislations (the Citizenship Amendment Act and new farm laws), and even cases filed in the aftermath of a gang rape in Hathras for "defaming" the Adityanath government in UP. 


More than 500 cases of sedition were filed since the BJP came into power in 2014 and 2019. We documented a 28% increase in the number of sedition cases filed each year between 2014 and 2020, Modi’s time in office, compared to the yearly average between 2010 and 2014,under the UPA II administration. 


Cricket matches between India and Pakistan were particularly contentious: three sedition cases were filed in 2014, 2017 and 2021, against people allegedly “celebrating” India’s losses over Pakistan in the Asia Cup, the ICC Champions Trophy and the Twenty20 World Cup matches. Adityanath publicly announced that sedition cases would be filed against anyone celebrating Pakistan’s victory. 


Perhaps it was this political climate that caused the Chief Justice of India and a judge of the Supreme Court to ask in court why sedition cases were being filed with such ease. The net around sedition has been cast so wide over the last six years, as to defy all judicial reasoning and logic. 


In 2021, A Growing Debate Over Sedition

Over the last year, five retired Supreme Court judges (Justices Deepak Gupta, Aftab Alam, V. Gopala Gowda, Rohinton Nariman and Madan Lokur) have criticised sedition, and eight public interest petitions have been filed before the Supreme Court calling for its repeal. Even mainstream media have editorialised on the need to do away with sedition (see here, here, here, here and here)


A Decade of Darkness was triggered by the twin socio-political contexts that emerged from the UPA II and the BJP, and its implications for the person caught in the legal process. 


While the police file first information reports (FIRs) with great speed, ignoring all constitutional reasoning and orders around sedition (here and here), what role does the judiciary play in addressing these violations, but more specifically, when?  


Sedition cases have been filed since 1870, when it was first introduced in the Indian Penal Code (IPC), 1860. A Decade of Darkness is India’s first empirical and investigative study to document the number of sedition cases filed, its journey through the criminal justice system, and the stories of the people who represent these data. 


Public discourse on sedition (Anushka Singh’s Sedition in Liberal Democracies and the People’s Union for Democratic Rights (PUDR)) have studied these questions in depth. But it also compelled us to think about scale, that is, we need a quantitative and qualitative scrutiny of this law across a length of time.


The NCRB uses what is called the “principle offence methodology”, which means “among many offences registered in a single FIR, only the most heinous crime (maximum punishment) will be considered as [the] counting unit”. That means many sedition cases may never be counted.  The NCRB data collection and methods have also been criticised for being unreliable, misleading and incomplete


Limitations And Other Notes

A Decade of Darkness documents all cases of sedition filed from 1 January 2010 until now, through multiple open access and paid online portals. Each online data source was mined manually: no automated technological software was created to extract data. We used search engine functionality, and the terms "sedition", "124A" or "124-A". 


However, our method bypasses the right-to-information (RTI) mechanism owing to time and resource constraints, given that our research documents sedition cases at a national scale. The RTI route was unsuccessful in getting accurate data, as PUDR reported at its 2012 ‘All India Convention against Sedition and Other Repressive Laws’.  


Our data also exclude documentation on sedition charges dropped at the pre-trial stage, either by the police or by the courts, as well as data on cases pending. We do not document criminal complaints filed before a magistrate asking for a sedition FIR to be registered. This does not set the police machinery into motion but precedes it. 


Our data also do not reflect caste or tribe information at an all-India level. While FIRs in some States require the police station to record caste or tribe, none of the FIRs we sourced mentioned it. 


Further, we chose not to determine caste or tribe status on the basis of names alone, given the complex relationship between names and caste or tribal status. However, our continued field work and interviews with the accused will reveal this information, and it will be reflected in this work in the future.


An added complication in our work was that of multiple cases of sedition filed against one person. For instance, Sharjeel Imam, a dissenter arrested for a speech he made, has five FIRs filed against him in different states, for the same speech. He is not the only one. 


We found 184 individuals with two to 16 cases of sedition filed against them across jurisdictions. This adds to the empirical complexity in sedition statistics, particularly on calculating time spent in custody. For instance, bail may be given in one sedition case while the accused continues to be in prison in another case. 


Cases are not filed on the basis of legal rationale alone but on an abuse of executive power. Calculating the extent of this abuse empirically and at a national scale, was particularly challenging since the use of sedition, as we found, defies logic. 


E-Courts: Error Messages

India’s E-Courts portal is maintained by the National Informatics Centre of the government of India and the department of justice, and covers 3,200 court complexes across 633 districts. 


This portal provides judgements and orders of trial courts, but more significantly, a "case status". This gives us crucial case level data on the FIR and police station, offences, district and names of the accused persons. 


There were error messages on the portal for Meghalaya, Mizoram, Arunachal Pradesh and Nagaland, even though we tried to access records multiple times in the course of six months.  


Investigating Agencies: Limited Data

Armed with an FIR number through the E-Courts database, we accessed state police department websites. Given that law and order is a state subject, each state government maintains its own citizen police portals, where FIRs may be accessed. 


We found that most police websites were established only in 2016 and later, and, therefore, their records date back only five years. We reported the difficulties in the user interfaces, as well as the technological challenges that accompanied its use. This was an experience also echoed in the India Justice Report 2020, a nation-wide study on police, judiciary, prisons and legal aid. 


Despite these challenges, we sourced at least 125 FIRs detailing sedition cases in Hindi, Kannada, Malayalam and Punjabi, which were translated into English. 


Press releases and chargesheets from past and ongoing investigations, uploaded on the National Investigation Agency and the Ministry of Home Affairs portals were another source of information. 


Media: A Confusion Of Sources

We also mined nearly 40 online media archives across print and digital media platforms in English and Hindi. Mainstream media reportage on sedition cases often focuses on a few cases that dominate headlines. 


There were cases that were reported only once, at the time sedition charges were filed, and found no further mention in the news media. 


We also discovered cases that were reported only at the time the accused was granted or denied bail. For instance, on 13 January 2022, a Faridabad District Court granted bail to a 22-year-old who made a hoax call to the police about finding explosives on a train. The police added sedition charges to the FIR. This case was first reported by the media only at the bail stage and not when the police filed the FIR. 


Often media reports may not use the term ‘sedition’ in their copy, a finding particularly evident from our data in cases of financial fraud. Fake or counterfeit currency ‘rackets’ are typically not reported in the media as sedition cases. However, we found 25 cases in relation to the making and distribution of counterfeit currency that implicated section 124A in orders of district and high courts. 


We also mined the open access portal Indian Kanoon, as well as paid subscription platforms Manupatra and SCC Online for court records in sedition cases. 


Investigative Reportage: The Perils

Using the data gathered from these online sources, we commissioned three investigative series in Karnataka (here, here and here), Uttar Pradesh and Assam (reportage from these two states will appear in the days to come). 


Our reporters tracked down and interviewed more than 70 people accused of sedition, their families and lawyers. All interviews were carried out with the permission of the accused. 


Often interviewees revealed that a person not named in the FIR or not mentioned in the media report or court orders, was also picked up by the police on sedition charges. Supplementing empirical work with field investigation is crucial in the story of sedition, when official records may not include all those accused at the time we access these documents online.  


Our fieldwork revealed other complexities. We accessed the bail orders of six men who were arrested in the aftermath of the Pulwama attack, for posting an identical message “I stand with Pakistan Aramy (sic)”. The bail orders were separate, but identical in content. 


However, our reporter found that the arrests were not a coordinated exercise by the police. None of the men knew each other, they met in prison for the first time. This was not evident from a mere reading of the bail orders. 


Meeting with the accused was also a question of chance and sensitivity. In one case the accused no longer lived at the given address. In another instance, the accused, when speaking to our reporter over the phone, was also convinced that he might be re-arrested. He was unable to sleep the night before the interview. 


Research that documents government excesses in India comes at high personal cost. One of our reporters faced an angry rightwing mob who threatened to burn down his car. 


After we published a story with our initial findings in February 2021, a Twitter user tagged the Delhi Police urging them to file an FIR against us. That journalism and the free press is under siege in India (see here, here, here, here, here, here) is part of the challenge in undertaking this research. 


Social Media: How Much Should We Worry? 

Today, our data show 156 social media users across India face sedition charges either for posting, sharing, liking, commenting, retweeting, or changing their profile photos/status messages on WhatsApp, Facebook and Twitter. 


An emerging area of concern are the origins of FIRs in sedition cases, that implicate all forms of media such as social media, television reports, audio clips or video recordings. 


How does information reach the police in the age of smartphones and the internet? While the physical presence of the complainant at the police station is still part of the investigative process, since 2014, a new, potentially more dangerous police informant has emerged within the digital space. 


The danger here comes from the speed with which information travels, coupled with a lack of forensic checks on the part of the police. All evidence in order to be reliable and admissible, needs to adhere to certain legal standards, and this includes electronic evidence


Our investigation in Karnataka revealed that those arrested were illiterate, first-time mobile phone users, or were unable to understand English. In one case, the police arrested a person 30 minutes after they shared a post. Both the intent of the police, and the speed with which they file FIRs should make us pause. 


Complainants: The "Who" In Sedition Cases That Needs Attention

Since 2014, our data show that 176 people have been accused of sedition by private complainants. The Code of Criminal Procedure (CrPC), 1973, allows any person to approach the police or the magistrate to register complaints about the commission of a cognizable offence, which includes sedition. 


We found 23 cases against 56 people that were booked under pressure by Hindu extremist groups, namely the Rashtriya Swayamsevak Sangh, the Hindu Jagran Manch, Hindu Yuva Vahini, the Bajrang Dal and the Vishwa Hindu Parishad, among others. This trend has been climbing steadily since May 2014 when the BJP was voted into power. 


On 14 July 2021, we reported on how petty private disputes turned into accusations of “anti-national slogans”, which led to sedition cases being filed against the so-called offending party. 


In one case, a Zomato delivery man turned complainant against a group of students, while in another it was a family dispute. A case in UP began with a dispute over a bike silencer and ended with an FIR against the owner of the two wheeler. 


In August 2021, we reported on how videos shot by bystanders go viral—sometimes doctored or used out of context, lending criminal tones to innocuous protests or statements. Since January 2020, police in 10 states filed at least 25 cases of sedition based on such footage. 


Hyperlocal politics, prior enmity between the accused and the complainant, and social media surveillance and reporting has a significant role to play in bringing sedition cases into the legal system.


Sedition In The Courtroom

We also reveal two sets of data around judicial decision making in sedition cases: bail and the number of acquittals and convictions in sedition trials over 10 years.


Data on sedition trials are documented by the NCRB, and here, the pattern is analogous to what we found. The NCRB found that of 559 persons arrested for sedition over the last six years, only 1% had been convicted, and 73 individuals were acquitted. Our data found that of 126 people for whom trials have concluded, 98 were acquitted of all charges, 13 of charges of sedition only, and 13 were convicted. 


Our data across more than 1,300 bail verdicts, analysed using bail orders and case statuses from the E Courts portal, indicates the volume of applications filed before courts in India, and includes multiple applications filed by a single person before the same court and in appeal.


This phase of our analyses excluded the number of times that bail was rejected before it was granted in one case and whether it was finally granted at by the lower court or in appeal. 


Our analysis found that a person spent upto 50 days in prison until the trial court granted bail, and upto 200 until the High Court did so.


In the aftermath of the Pulwama attack, at least 16 persons were arrested for "celebrating" the attack on social media. We found that each of them spent between one and 250 days in prison until the court granted bail. 


On 19 January 2022 we reported that three Kashmiri students arrested for posting "celebratory" WhatsApp status messages, had been in prison for 84 days and had their bail hearings postponed seven times. Lawyers’ associations in Agra refused to provide legal aid to them. 


However, it is not only outspoken politicians, activists or journalists who face sedition charges. 15% of those accused belong to the informal sector, are serving or former government employees or retired security personnel, students, farmers, or employed or own their own enterprises.  


We make no statistical correlations between our findings and external phenomena that may influence judicial decision making in sedition cases. But what remains to be studied is why courts take this long to release an individual from prison, particularly in cases where FIRs are filed on patently illegal grounds. 

 

The story doesn’t end here. 


When a court grants bail, it may compel the accused to pay a bail bond: Our data show that these amounts ranged from Rs 10,000 to Rs 200,000. Nearly every person accused of sedition that we interviewed said they had sold land, jewellery, livestock, and taken on debt to pay legal fees and bail bonds. Added to this is the cost of having to travel to courts and police stations until the case is concluded. In the case of daily wage labourers, this also meant losing a day’s wages, with every court visit.

 

The socio-political rhetoric can dictate the pace and quality of the legal process, starting with the decision to register the FIR. 


But while The Decade of Darkness may have begun with documenting the use of sedition, our data also found a sharp rise after 2018 of cases where section 153-A of the IPC was invoked with sedition. Section 153-A punishes promoting enmity on the grounds of religion and other factors, as well as causing disharmony. Similarly, cases of Section 153-B of the IPC along with sedition, also saw a gradual increase after 2016. Section 153-B punishes “imputations and assertions prejudicial to national integration”. 


It is clear then, that even if sedition is repealed, these cases will continue and the accused will continue to exist in a legal blackhole. 


(Lubhyathi Rangarajan is Editor Databases for The Decade of Darkness. She headed this project for Article 14. For the complete list of contributors and collaborators, see here.) 


Disclosure: Dr. Anushka Singh is an Advisor to A Decade of Darkness and Justice Madan Lokur was on the Advisory Board of Article 14.


This research was funded in part by the Thakur Foundation.