In India, dissenters are having it rough

The Supreme Court of India has categorically held that criticism of the government, however harsh, does not amount to sedition unless violence is incited, writes Rahul Machaiah for South Asia Monitor 

Rahul Machaiah Feb 20, 2021
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There have been intense protests against the newly enacted farm laws in India. The police attempted to mercilessly crush the protest by resorting to spraying water on the protesters and caning them. The protest received a shot in the arm after climate activist Greta Thunberg and singer Rihanna tweeted about it. Meanwhile, the police have been cracking down on people who were instrumental in mobilizing support for the protest. Cases have been filed against journalists as well, alleging that they instigated the violence.

On February 13, a 21-year-old climate activist Disha Ravi was arrested by the Delhi Police's Cyber Cell from her house in Bengaluru. She has been accused of criminal conspiracy, sedition, and promoting hatred between groups after she allegedly edited a toolkit designed to help people understand and support the farmers protests. The toolkit was shared by Thunberg, which attracted a lot of ire from the central government.

In 2020, Disha's organization called Fridays For Future was under the Delhi Police's scrutiny after it sent mass e-mails to the Ministry of Environment and Forests, protesting against the central government's draft rules pertaining to environment impact assessments. The Minister of Environment and Forests wrote to the Delhi Police about the mass e-mails and eventually the organization's website was blocked. Therefore, this is not the first time she incurred the wrath of the state.

Disha's arrest and the subsequent remand to five-days of police custody by a magistrate reflect the severe power imbalance between the state and the citizens in India. It has exposed the fragile nature of the safeguards against arbitrary arrests. Firstly, even if the allegations against Ravi were true, they woefully fall short of qualifying as sedition. Sedition has been defined as bringing or attempting to bring hatred or contempt towards the government or exciting or attempting to excite disaffection towards the government.

A British-era sedition law

This pre-constitutional legal provision was conceptualised by the British in 1870 and was widely used against freedom fighters in India. The Supreme Court of India has categorically held that criticism of the government, however harsh, does not amount to sedition unless violence is incited. It is also a settled position of law that when it is alleged that certain words incite violence and threaten public order, there must be a proximate connection between the words and public disorder. The mere possibility of public disorder is not a ground to term words as seditious. Therefore, it is baffling as to how editing a toolkit, a Google document that was designed to help people understand the protests and support them, amounts to sedition.

It is equally baffling as to how the toolkit has got anything to do with the offence of 'promoting hatred between groups on grounds of religion, race, place of birth, residence, language, caste or community.' The Supreme Court has held that this offence is attracted only when the accused has acted with deliberate and malicious intent to promote hatred or enmity. Therefore, unless the toolkit was maliciously designed for the primary purpose of spreading hatred and enmity between communities, castes or other such groups, this provision of law has no application at all.

Failure to grant bail 

What exacerbates the menace of arbitrary arrests is the failure of the magistrates to grant bail in such cases. Magistrates form the first line of defence against arbitrary arrests as every arrested person should be produced before a magistrate within 24 hours and the magistrate may grant bail to the person.

Despite being reminded multiple times that bail is the rule and detention is the exception, this principle is not being zealously followed by courts. Also, the Supreme Court has held that a person ought to be sent to police custody only if custodial interrogation of the accused is absolutely necessary and there is a real possibility of the accused fleeing, destroying evidence or threatening witnesses.

This being the case, it is rather unfortunate that a 21-year old has been sent to police custody for five days immediately. Assuming that she had edited the toolkit shared by Thunberg, it is hardly something that requires her to be kept in police custody for five days and subjected to custodial interrogation. She could always be interrogated after being summoned to appear on a given date. Custodial interrogation would have made sense if she had not been responding to the summons.

Such arrests can have a chilling effect on freedom of speech and the right to protest as people will begin to censor themselves due to the fear of being arrested. As a result, narratives that counter the dominant narrative propounded by the state will fade away. The notion of the right to protest peacefully being the hallmark of democracy will be reduced to empty rhetoric if such arrests continue unabated. Let it not be forgotten - "In a democracy, dissent is an act of faith".

(The writer is a lawyer who specialises in public law and law & development. The views are personal. His Twitter handle is @rahulmachaiah)

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