Updated: Mar 8
New Delhi: In Punjab, the police filed sedition charges when a person who criticised the lack of ventilators and against another for possessing posters; in Karnataka, for merging the Indian and Pakistani flags in a video; in Bihar for “treasonous slogans” by drunk students.
These were some of the 10 cases over three years to 2020 that we examined from a new Article 14 database, indicating how the police apply sedition charges with little thought, evidence or legal justification and ignore a series of judicial rulings by high courts and the Supreme Court.
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The arrest and bail of 21-year-old climate activist Disha Ravi on wrongly applied sedition charges and doubts about pre-trial violations has again spotlighted police misuse of India’s 151-year-old sedition law under section 124A of the Indian Penal Code (IPC), 1860.
“Law proscribes only such activities as would be intended, or have a tendency, to create disorder or disturbance of public peace by resort (sic) to violence,” said Delhi additional sessions judge Dharmender Rana on 23 February, observing that “any call for any kind of violence is conspicuously absent”. The Court added that “scant and sketchy” evidence on charges of sedition cannot justify prolonged custody and denial of bail.
In that spotlight also are a sedition case that the Delhi government cleared on 15 February 2021 against former Jawaharlal Nehru University president Kanhaiya Kumar and others for raising slogans on the university campus in 2016; and multiple cases of sedition filed in at least five different States for tweets in January related to ongoing farmers’ protests by former minister Shashi Tharoor and six journalists, such as television anchor Rajdeep Sardesai and Caravan magazine editor Vinod Jose. The Supreme Court on 9 February 2021 stayed their arrest.
The Bombay High Court on 24 November 2020, in a case of sedition filed against actor Kangana Ranaut, observed: "It has become a trend to add 124A IPC (sedition) in the complaint. What is the need? Are we treating our citizens like this?" It went on to make oral remarks about the need to have workshops for the police to ensure that section 124A is not added needlessly. Ranaut also argued before the Court that her tweet caused no incitement to violence.
The High Court is right in making this observation. The Delhi and the Punjab & Haryana High Courts (here and here), in February 2021 and October 2020 respectively, also questioned the use of sedition.
Disha, Kumar, Ranaut and the others are at the receiving end of a law under which nearly 11,000 Indians have faced charges over the last decade, according to a newly launched Article 14 database, the preliminary findings of which you can read here.
The Archaic Law Of Sedition, Misused
An offence of sedition, which is no longer on the statutes of most democracies, is said to be committed if any speech, performance or publication has an effect of creating disloyalty or hatred against the Indian government.
This was, however, watered down in 1962 by the Supreme Court in Kedar Nath Singh. The judgement held that though the provision of sedition was constitutional, it cannot be invoked unless the alleged seditious act incited or had the tendency to incite violence or public disorder.
To test this standard, we accessed first information reports (FIRs) in 10 sedition cases across the country filed over three years to 2020.
Four of these cases were related to social-media posts. The FIRs were sourced from state police department websites and translated into English from Kannada, Punjabi and Hindi. FIRs are public documents as mandated in 2016 by the Supreme Court. All personal details have been redacted.
Early in 2020, two cases in Punjab were filed in the aftermath of COVID-19, and in both cases, the accused had posted on social media.
In one case, the accused had posted about the lack of ventilators. The FIR filed against him stated that he “incited hatred against the State government, misled the general public and administration and also violated the orders of senior officials”.
In the second case, the FIR alleged that the accused was riding his motorcycle and while live on social media, was “in a loud voice instigating people against Indian Government, Punjab Government, and Police Department….loudly using bad language and provoking people against the Punjab Government and Indian Government. He was also saying bad things about Hindu Gods and Goddesses and hurting the religious sentiments of people belonging to the Hindu religion”.
The Punjab and Haryana High Court, while deciding this bail application in 2020, criticised the invocation of section 124A. After studying the transcript of the offending video, the High Court held it was “an expression of dissatisfaction with the functioning of the Government and criticism of its policies.” At the time of this order, the accused was in custody for more than six months.
The Court added that the State needed to be “more tolerant and circumspect while invoking laws pertaining to sedition and religious disaffection. Current tendency to the contrary has been frowned upon by the Supreme Court of India.”
In 2019 on Independence Day, an FIR filed in Karnataka alleged the accused put a half moon and the star from Pakistan’s flag into India's saffron, white and green flag and had uploaded a “chand tara (moon and stars) video in his WhatsApp Status. By doing so, he had disgraced the Indian flag “and caused damage to national integrity and national sovereignty”, said the FIR.
That same year, an FIR against two students in Kerala said “the accused, a student…..had pasted posters on the portico walls of the college with anti-national slogans….. in a way that is destructive to the solidarity of India”.
In 2019, in Punjab, the police filed an FIR against two people for possessing posters “against the Government” and alleged the posters would be distributed to mobilise people against the Government. The FIR did not mention what the contents of the posters were and how they were against the Government.
In October 2019, an FIR, since withdrawn, was filed in Bihar against 49 eminent individuals who wrote an open letter addressed to PM Modi criticising mob lynchings. The FIR stated that “the purpose of the accused persons is to dent the image of the Country by making false accusations. To express opposition by writing a letter by these people is against nationality and humanity and to defame the image of the Prime Minister and his work at the international fora...Accused person has written the letter intentionally with the purpose to disintegrate and dismantle the country by spreading the enmity and has committed sedition by misleading the people.”
The police in Bihar also registered an FIR in 2018 against students who allegedly fought and injured their classmates while drunk. The FIR mentioned that “treasonous slogans were raised by these people” and section 124A of the IPC was clubbed with sections on grievous hurt, attempt to murder among others.
Similarly in Bihar, in 2018, three persons in Bihar had “uprooted the national flag” on Independence day and “shouted slogans of Inquilab Zindabad (hail freedom)” and in Jharkhand in 2017, an FIR was filed against one “for raising anti-India slogans’.
In June 2017, India lost the ICC Champions Trophy to Pakistan in cricket. An FIR in Karnataka said the accused burst firecrackers celebrating Pakistan’s win and shouted “Pakistan Zindabad” against India in public”.
In Assam, in April 2019, one person was arrested for sedition, for posting an “anti-national comment on his Facebook account which was supporting (sic) Pakistani Army”.
None of these FIRs we accessed described a connection to either the likelihood of violence or actual violence having occurred after the fact. They do no more than describe spreading sentiments of hatred or communal disharmony. They perhaps suffer from the same vice described in the Disha Ravi bail order, that of “general allegations” with no direct link to incitement to violence.
The Weaponisation Of Sedition
The Article 14 database found 519 sedition cases filed under the current BJP government over six years, compared to 279 filed between 2010 and May 2014 during the tenure of the previous UPA-2 government.
Of the 279, 39% were filed during protests in Tamil Nadu, against a nuclear plant, and in relation to left-wing extremism across India. There were 18 cases for which the database could not determine the regime, due to inadequate information.
Of 10,938 Indians accused of sedition over the last decade, 65% found themselves implicated after May 2014, when the Modi government came to power, with the number of cases rising 28% every year since 2014.
Such a trend was most visible after nationwide protests erupted protesting the Modi government’s Citizenship Amendment Act (CAA) in December 2019. Across the country, police authorities booked 3,754 individuals and filed 25 sedition cases, of which 96 were identified and the rest were “unidentified”. Of the 25 cases, 22 were in BJP-ruled states. After a public outcry, the Jharkhand government had recommended dropping charges against 3,000 individuals who had been booked under section 124A by the Dhanbad police.
The database found a range of expressions classified as seditious, from mere holding of posters to social media posts, to raising slogans and private communication. In more than 60% of cases over 10 years, a variety of other laws, such as the Unlawful Activities Prevention Act, 1967, the Information Technology Act, 2000, Arms Act, 1969, and the Criminal Law Amendment Act were added to the first information reports (FIRs).
The 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”.
NCRB Data on Sedition between 2014 and 2020
The National Crime Records Bureau (NCRB) is India’s nodal agency that collects and publishes annual statistics on crime and prisons. However, it is only since 2014 that the NCRB has been recording data on sedition. Of 559 persons arrested for sedition over the last six years, only 1% have been convicted, and 73 individuals were acquitted.
Slogans Are No Threat To Government
Apart from Kedar Nath Singh’s qualification on violence, in cases of sloganeering, the Supreme Court in the 1995 Balwant Singh case held that “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”.
In 1984 the police had arrested Balwant Singh and Bhupinder Singh on charges of sedition and section 153A of the IPC, for shouting slogans in the aftermath of former Prime Minister Indira Gandhi’s assassination. The Court held that the “raising of such casual slogans, a couple of times without any other act whatsoever” could not justify sedition or 153A and therefore both men were acquitted.
That social media can indeed reach a large number of people and, so, violence is a possibility is a widely held contention, but this argument was heard and considered by the Supreme Court in 2015 during the Shreya Singhal case, which ended in section 66A of the Information Technology Act, 2000, being struck down. One reason for this was that the provision was vaguely worded, which allowed the police to have unrestricted powers to arrest.
But to ensure that the Kedar-Nath-Singh standard of incitement to violence is given effect, the only solution, perhaps, is to lay down guidelines regulating police misuse of the law.
Judicial Guidelines For Sedition
One of the more recent attempts to lay down guidelines in sedition cases emerged from the Aseem Trivedi case, a cartoonist who was charged with sedition by the then Congress-NCP government in 2012 during India Against Corruption protests. There was a widespread public backlash against Trivedi’s arrest, and sedition charges against him were dropped the same year.
In 2015, a public interest litigation (PIL) was filed before the Bombay High Court, asking for guidelines to regulate sedition. One of the guidelines proposed by the then Fadnavis led government was that the police must get legal opinion from the district law officer and, within two weeks, from the public prosecutor of the State. It went on to state that criticism against public servants or politicians was also not sedition unless the words, signs, or representations indicated that they were representatives of the Government. On 27 August 2015, these guidelines were officially notified by the Maharashtra Home Department.
However, the clause stating that criticism of government officials amounts to sedition caused a public outcry. Legal experts and the then opposition Congress-NCP government questioned it as being regressive.
In September 2015, Aseem Trivedi challenged these guidelines before the Bombay High Court on the grounds that the State Government ignored the basic ingredients of Section 124-A while drafting them. (Article 14 was given access to this petition.)
In October 2015, the State government contended that these guidelines would be withdrawn via an official resolution. No reasons were recorded in the order before the Bombay High Court. The State government then withdrew the guidelines on 2 November 2015.
This history of the BJP government’s attempt to stop the misuse of sedition does not appear encouraging.
Despite this, Geeta Seshu, journalist and Co-Editor of the Free Speech Collective, said that guidelines are needed. She added that the police are quick to file cases without any application of mind. “Anyone can now approach the police alleging seditious activities. But a charge as serious as sedition should at least be reviewed by senior police officials to check that the requirements of the law are complied with”, said Seshu.
According to Vijay Hiremath, a Mumbai based lawyer, guidelines create “barriers” between the registration of an FIR and possible arrest, which, in cases involving free speech and expression is a “significant push towards personal liberty”.
“All accused persons are entitled to a copy of their FIR,” said Hiremath. “But if they are also entitled to a legal opinion at the FIR stage confirming or denying invocation of 124A, it can be empowering.”
Kedar Nath Singh makes the ultimate question of incitement to violence answerable only by courts. The Bombay High Court in asking why section 124A is added by the police, sought to make this an executive burden before the FIR is even filed.
Given the NCRB’s own data on the rise in sedition cases, this is a reasonable way to check abuse of process. However, according to Hiremath, any guideline would have to be notified either by state governments or by the Supreme Court to become national law.
National Guidelines To Regulate Sedition
In 2016, Common Cause, an advocacy, filed a public interest litigation (PIL) before the Supreme Court along similar lines as Sanskar Marathe. The Supreme Court, however, rejected this PIL and reiterated that the principles of Kedar Nath Singh were sufficient.
In this PIL, Common Cause had prayed for the Director General of Police to certify “that the seditious act either led to the incitement of violence or had the tendency or the intention to create public disorder”. It also asked for an identical certificate from the magistrate, in cases where private complaints were filed.
The Code of Criminal Procedure, 1973, allows magistrates to take cognizance of an offence based on a complaint filed by a private party. For instance, in 2019, a lawyer in Muzaffarpur filed a private complaint against 49 actors, academics and activists, demanding that an FIR be registered against them under 124A. They had written an open letter to the Prime Minister protesting against rising mob lynching.
The chief judicial magistrate ordered an FIR based on the complaint. But the Bihar police closed this case because it was filed, as they put it, “mischievously”. This case too led to a public outcry against the invoking of sedition.
This is also the kind of harassment through private complaints that the Common Cause PIL was seeking to prevent in its petition which was dismissed.
Before filing an FIR, the police must provide evidence of a proximate connection to violence to a state’s legal department. This can assuage concerns that the Bombay High Court had raised around the filing of sedition charges without reason. As Seshu said, “there is currently zero accountability on the part of the police. At the very least, these guidelines can act as a check on police power.”
The Label Of Traitor
Section 124A suffers from similar vices as 66A, before the latter was struck down as unconstitutional. Critics have argued (here, here and here) that it is overbroad, vague, and subject to widespread misuse by the police.
However, a charge of sedition also implies that one is a traitor, a label that cannot be shaken off easily, particularly in India’s current socio-political climate. It is, therefore, a grave allegation to make, especially in the casual manner that the FIRs we have studied have done.
The question of incitement to violence has been only a judicial burden until now. But for the police to make such a determination, much more than workshops are needed.
As Hiremath said: “In the case of the DK Basu judgment on custodial torture or even the Vishaka guidelines against sexual harassment at the workplace, lawyers, academics, researchers and organizations, had a big role to play in ensuring that these judgments were given life outside the court. We’d need a similar movement around 124A regulations if they are laid down by a court or other institution.”
In 2016, the Supreme Court, in Youth Bar Association of India v. Union of India, held that unless the offense is “sensitive”, the copies of the FIR must be uploaded within 24 hours on the police website or on the official website of the State Government if there is no police website.
FIRs are, therefore, public documents that are made available on police department portals. In 2009 the government launched the Crime and Criminal Tracking Network System (CCTNS) to integrate state police portals and data from all police stations.
Any citizen can access a range of services, one of which is viewing FIRs. However, there are several technological factors that severely hamper access to these portals. While we found that these websites mention a time period within which FIRs are available, it did not guarantee results.
First, in order to view FIRs within most portals, one needs to enter the district, police station, FIR Number, and date of registration, as well as provide personal details or identification documents. Typically a one time password (OTP) is generated when creating a login ID.
However, for West Bengal, Jammu and Kashmir and Uttarakhand, despite multiple attempts no OTP was generated. For the Delhi police website, no password was generated even after completing the registration process.
Also, these websites may be in local languages, which may lead to absurd results when translating. For instance, the Madhya Pradesh police website is in Hindi. Districts called Katni and Sagar were translated as the harvest and sea respectively.
In Maharashtra, a search for FIRs related to sedition is possible only within a specified date range of 90 days. Searches are not possible over four years or even offence wise.
For Bihar, pages had to be refreshed multiple times to access FIRs. Even on clicking the relevant link, the page would be redirected to a blank page and no PDF download was possible.
The user interfaces of most police websites do not allow filtering results by offence. Manually checking each entry was the only way to source FIRs relevant for the database. The servers also worked sporadically on some days and not on others. Pages would be redirected or remain unopened, or links to FIRs would be broken. The search for FIRs on police websites was a trial and error process over a period of six months and depended on server responses.
(Lubhyathi Rangarajan heads the Sedition Database and is a lawyer and researcher. Tejaswita Kharel and Harini V.S are fifth-year law students at the National Law University, Delhi, and KLE Society’s Law College,Bengaluru, respectively. Shruti Sundar Ray contributed to the research and writing on the NCRB data & the functioning of police websites. Nikita Bansal, Pallavi Diwakar, Rajesh Ranjan, and Sachin provided the translations of the first information reports.)