Bengaluru: In April 2019, bail pleas in four cases of sedition arrived at the court of an additional district and sessions judge in a central Karnataka district.
The cases were filed in February, in the aftermath of the killing of 40 Central Reserve Police Force (CRFF) men in Pulwama, in Jammu & Kashmir, and the subsequent counter attack by India through an airstrike in Balakot, in Pakistan’s Khyber Pakhtunkhwa province. The accused had posted the message ‘I stand with Pakistan Army’ on their social media pages.
Of the four, three were Hindus, one Muslim. All belonged to impoverished families and couldn’t read or write.
The judge denied them bail. The four bail rejection orders delivered in April 2019 were nearly identical. “It is significant to note that, when the nation is under the threat by enemy country and facing serious danger like Pulwama attack and Uri incident, posting this kind of message against the nation will definitely demoralize the soldiers, as well as our defence mechanism and security of the nation. As rightly pointed out by learned P.P. (Public Prosecutor), it may leads to communal disharmony (sic),” according to the order.
Indians must stand with the Indian Army, “under any circumstance”, the judge declared.
In multiple judgments, (1962 Kedar Nath Singh vs State of Bihar and 1995 Balwant Singh & Bhupinder Singh vs State of Punjab) the Supreme Court of India has made clear that the sedition charge cannot be applied for the mere act of sloganeering when the individuals do not incite violence.
Yet, in the order refusing bail, the logic of the Karnataka police filing a sedition case was not questioned. Instead, the four men would spend two to four months in jail.
In September of that year, a fifth sedition case made its way to the same courtroom. A 19-year-old student had allegedly posted as his WhatsApp status a short video clip showing a man saluting the Indian tricolour, which bears a crescent and star on each of its bands. Speaking to Article 14, the student said the symbols were indeed Islamic, but were not from the flag of Pakistan. The video, created earlier by a Tiktok user, was supposed to represent the love of the Muslim community for India.
The 19-year-old said the hours in the police station were terrifying. The complainant, affiliated to a local Hindu group, had managed to enter the police station with some associates and assault him. The police also took his signature on a blank sheet of paper.
According to the accused, a statement was typed on this sheet without his knowledge or consent. During the bail hearings, the public prosecutor presented it as a confessional statement to the judge.
It said in Kannada, “I like the Pakistan flag and so I thought I would dishonour the Indian flag on Independence Day, August 15, 2019. I put the crescent and star from the Pakistan flag on the three colours of the Indian flag…”
At the courthouse, the judge perused the prosecutor’s documents. His order said: “It is to be noted that the petitioner is the unscrupulous man who living under the mercy of our nation utilizing all the amenities provided by our tax payers for free, in-spite of that he had deep love to the enemy country. This kind of people should be deported to their loved country. Added to that behind these kind of gaddar an organized system is activate. If this petitioner is released on bail, it will boost the morality of the said gaddars (sic).”
The order used the Hindi word for traitor, gaddar.
The student would eventually get bail only through the Karnataka High Court, nearly three months later. The family was burdened with legal fees of over Rs. 150,000. They expect the case to run a few years before it reaches a conclusion.
The Rocky Road To Justice
Sedition cases are easy to file, as seen in multiple accounts not just from Karnataka but across the country. Only a complaint is needed at police stations.
As part of ongoing research into sedition cases in India, Article 14 talked to the accused or lawyers in 32 out of 53 cases of sedition filed in Karnataka. The interviews delved into circumstances of the case, procedures followed by the police, costs of the legal process and the socio-economic consequences. The names of the accused and their lawyers have been kept anonymous for their safety.
This is the third of a three-part series on the misuse of sedition law in Karnataka, which ranks 5th by number of cases filed over 11 years to 2021, according to an Article 14 database. You can read Part I of the series here and Part II here.
Broad patterns emerge through these interviews, highlighting lapses in police procedure and the lower judiciary’s response.
In numerous cases, the families of the accused were not informed of the arrest, even days later. In one case, the friends of the accused filed a case of kidnapping after policemen in civilian clothing whisked him away from the shop where he worked. In many cases, it is only during the process of applying for bail that the accused finds out the sections of law applied in the case.
At the police station, many of the accused were asked to sign on a blank sheet of paper, they told Article 14. A confession or statement was subsequently printed on this paper. While this ‘confession’ is not admissible in court under section 25 of the Indian Evidence Act, 1872, lawyers said it does often play an important role in determining whether bail is granted.
In nearly all cases, bail was denied by the trial court and sessions courts.
Many of the accused were granted bail only when the 60-day period for filing a chargesheet lapsed, after which they were automatically eligible for bail.
In a few cases, the Karnataka High Court provided relief. The rest spent between four and 13 months in jail, after which the trial procedure continued to shroud their everyday lives.
National Crime Control Bureau (NCRB) data show that there have been 559 cases of sedition between 2014 and 2019 across the country. Of these, chargesheets were filed in just 337 cases. And of the 76 cases to have completed trials during these times, just 10 resulted in conviction.
Not one of the 53 cases of sedition in Karnataka between 2010 and 2021 has resulted in conviction yet.
Denied The Right To Defence
A recurring pattern, reflecting the sharp polarisation in communities where the accused live, is the formal and informal boycott of sedition cases by local lawyers and bar associations. In 17 out of 32 cases where information was collected by Article 14, lawyers were dissuaded by threats or themselves declined to take the case.
In January 2020, the Mysuru district bar association refused to defend two students charged with sedition after one of them displayed a ‘Free Kashmir’ poster during a protest against Citizenship Amendment Act (CAA), 2019.
“I knew nothing I did was seditious, but how do you prove that in court without a lawyer to represent you?” said one of the two arrested in that case. According to him, 250-300 lawyers in Mysuru city said they would not represent him. “How do I even proceed?”
Eventually, the boycott had the opposite effect: outrage among some sections of the legal community led to at least 170 lawyers from across the state offering to represent the students despite the bar association’s threats. The student told Article 14, “I got some courage because of this. That I would not be alone in this fight.”
In February 2020, the Hubballi bar association passed a resolution that prohibited members from representing three Kashmiri students who were accused of posting pro-Pakistani statements on social media sites.
This aggravated the tense, polarised scenes in the town following the filing of the case. First, the students were assaulted near the court by right-wing activists. Then, a team of lawyers from Bengaluru, who had gone there to file a bail application on behalf of the Kashmiri students, were roughed up. It took a bevy of policemen to allow the advocates entry into the courtroom.
B.T. Venkatesh, a former Karnataka public prosecutor and one of the advocates who came forward to represent the Kashmiri students, said the polarisation of bar associations are on account of local political pressure.
He and 23 other advocates approached the Karnataka High Court against the resolution and sought to highlight the violence in the court complex. “These calls for boycotts were happening for a long time, particularly in communally sensitive cases. But this should not be normalised,” Venkatesh told Article 14. He said they were afraid the use of force in the Hubballi court to attempt to deny an accused person’s constitutional right would become a precedent. “It had to be stopped.”
In March 2020, the chief justice of the Karnataka High Court rapped the bar association. “As far as the criminal justice delivery system in our country is concerned, one can proudly say that kangaroo trials are not conducted and even foreign nationals, against whom there is an allegation of commission of a serious offence, are given a fair trial,” said the order.
It cited as an example the case of Ajmal Kasab, the Pakistani terrorist captured alive in Mumbai after the 26 November terror attacks in 2008.
It added that “at least the members of the Bar” should not brand persons named in a first information report as a criminal and anti-national when charges against them are not yet proven in a court.
Calling the trend “disturbing”, the order said courts too would find it difficult to provide legal aid if local lawyers refuse to defend people named in cases. “This situation is not conducive for a healthy justice delivery system,” said the order.
In other cases, a lawyer came forward but at a high cost. A pattern that emerged is the Article 14 informal survey of the accused is that those with smaller means and little political/social connections tended to pay higher legal fees. The cost of legal fees varied from Rs. 25,000 to Rs. 200,000 or even Rs 400,000, for villagers recently accused of sedition. In cases that dragged on for more than five years, legal expenses crossed Rs 1 million.
Much of this was paid through high-interest loans taken from money lenders and through sale of property and/or gold ornaments.
In at least three cases, the accused couldn’t afford to retain a lawyer after obtaining bail and were self-representing during court hearings.
Junior Judges: ‘Send A Message To Society’
In almost all cases of sedition, bail is a multiple-step process after being refused by lower courts on the first attempt. In most cases, bail applications are rejected in the Court of the judicial magistrate of the first class (JMFC) and then by a sessions court or district court.
A perusal of orders rejecting bail pleas in these cases revealed that lower court judges either sought to “send a message to society” about anti-national behaviour, or found merit in the prosecutor's argument, or believed that bail could only be granted by higher courts.
The Supreme Court has in the past made references to the “mechanical” treatment of cases, including sedition cases, by trial courts. In Bilal Ahmed Kaloo Vs. State Of Andhra Pradesh (1997), the court observed in its order that set aside a trial court’s conviction under sedition charges: “Mechanical order convicting a citizen for offences of such serious nature like sedition and to promote enmity and hatred etc. does harm to the cause. It is expected that graver the offence, greater should be the care taken so that the liberty of a citizen is not lightly interfered with.”
The Supreme Court has also laid down guidelines for consideration during bail proceedings in lower courts, in Arnesh Kumar Vs. State of Bihar (2014), which sought to discourage the practice of magistrates authorising detention “mechanically and casually”.
B.T. Venkatesh, who has represented accused in several sedition cases, said the rejection by lower courts reflected the fear of junior judges. “These cases seem like serious crimes for them and they would rather let the decision on the accused be passed to their superiors,” he said. Compounding this are the local pressures from the police and politicians, he added.
Among the people interviewed by Article 14, the longest period spent in jail (excluding cases where sedition charges were applied along with terror charges) was 13 months. The accused were two youths from a small village in north Karnataka.
On 14 August 2018, the prime accused – a 19-year-old illiterate daily-wager from a poor family – posted a selfie of him and a relative on a WhatsApp group. The 19-year-old had used a photo app and selected a frame that bore the words ‘Pakistan Zindabad’ in English, words he could not read. Both men were arrested along with two others who were the group admins.
Their bail application was rejected five times, including twice by the Karnataka HC. The lower courts observed that the message amounted to “anti-India” activities by posting a “slogan favoring Pakistan”. The HC observed that the “slogan may be one or two lines, but the intention and effect was serious”.
The lawyer engaged by the accused after four rejections of their bail plea said one of the group admins absconded and destroyed his phone set, putting in jeopardy the bail applications of all four. “The country was in the grip of anger over Pulwama when the bail applications were heard. An accusation of posting something about Pakistan Zindabad was not seen with compassion,” said the lawyer.
The Karnataka High Court has, at times, questioned the invocation of sedition charges. In a 2020 sedition case against a madrassa teacher who had forwarded a post against a local qazi or chief of a mosque, the HC observed that the allegations had nothing to do with creating hatred or contempt, nor did the text message attempt to incite violence.
In a petition challenging a 2019 sedition case filed against members of the then ruling Congress-Janata Dal coalition, the HC said the special judge who ordered the case to be filed had passed the order “in utter disregard of law and procedure without application of mind that behoves the judicial officer”.
Unending Trials, Lives Upended
In court, the trials in these cases sometimes stretch several years, draining the meagre resources of the accused. Interviews with the accused revealed loss of jobs, debts of between Rs 100,000 and Rs 400,000, isolation and polarisation of communities.
In 2017, five people—including three minors—were arrested in a central Karnataka town for allegedly shouting ‘Pakistan Zindabad’ from a passenger autorickshaw following Pakistan’s victory over India in the finals of the ICC Champions Trophy cricket match. The slogans were “heard” by members of the Bajrang Dal who then “conducted preliminary enquiries” to narrow down on the persons responsible for the sloganeering.
The case against two adults is in the witness deposition stage. One struggled to avail legal representation until he eventually found a lawyer who agreed to represent a “deshdrohi” (terrorist) for a higher fee. The accused incurred an expense of Rs 150,000 for the bail process alone.
“I am still paying off the loans. The interest is so high that half my weekly wage goes into repaying the loans,” said the 24-year-old accused, father to a one-year-old.
Then the trial began and his lawyer stopped showing up. Terrified of being arrested again, the man managed to find a Muslim lawyer to represent him.
“Apart from prejudices against Muslims, there is also no awareness about sedition cases among lawyers,” said the lawyer, who now represents both adults in the case. Lawyers get “intimidated” by the sedition charge and so prefer not to take up such cases unless there is a sizable monetary benefit.
The case against the three minors remains stalled in the district Juvenile Justice Board (JJB). Section 14(2) of the Juvenile Justice (Care and Protection of Children Act), 2015 mandates that the trial must be completed within four months with a maximum two-month extension.
Upon the case being registered, the three children—then between 14 and 16 years of age—spent nearly 45 days in a remand home. Four years of court visits followed.
At one point, the trial was delayed because the 16-year-old was assessed for mental capacity, for a decision to be made on whether he could be tried as an adult.
The Juvenile Justice (Care and Protection) Act, 2015 provides for an assessment of minors to be tried as adults if the crime is considered to be heinous (that is, if the sections applied attract a maximum punishment of more than seven years). The sedition charge attracts a maximum punishment of life imprisonment. However, the Supreme Court in 2020 ruled that offences where minimum punishment is below seven years cannot be seen as ‘heinous crimes’.
Subsequent delays were on account of the JJB lacking quorum. “There has been no progress in the case for two years,” said their lawyer.
For the children, the arrest and the case were life-changing. All three quit their studies. They work as construction labourers or welders, for daily wages. The oldest, who received his Class X results while in the remand home, subsequently missed college admissions. He told Article 14 he had wanted to continue his education and get a better job. “But, that’s not an option now.”
He heads to the local welder’s shop every morning and returns straight home after work. “I shudder when I see a policeman on the street,” he said. Once every month or every two months, he is required to visit the court for juveniles, “where they will make me stand in the corner and sign a sheet of paper”.
The youngest of the accused said he returned to school, to Class VIII briefly after being released from the remand home. “The headmaster called me and said I was a terrorist and a traitor.” That was the end of his schooling.
This upheaval was a recurring theme in Article 14's interviews of more than 30 people accused of sedition by Karnataka police. Schooling interrupted, jobs lost, families displaced and an overhanging debt. Many felt their innocence was obvious to all. But amid a years-long trial, that hardly mattered.
(Mohit Rao is a freelance reporter based in Bengaluru. This report was based on the Sedition Database research by Article 14, headed by Lubhyathi Rangarajan. Tejaswita Kharel and Harini V.S are on the core team of the database. They are fifth-year law students at the National Law University, Delhi, and KLE Society’s Law College, Bengaluru, respectively. The graphics are by Jameela Ahmed. This work is supported by the Thakur Foundation.)