India
divided on what makes a
traitor By Sudha Ramachandran
BANGALORE - Physician and human-rights
activist Binayak Sen, who was convicted on charges
of sedition and sentenced to life imprisonment by
a trial court in the eastern state of Chhattisgarh
in December last year, has been released on bail
by India's Supreme Court.
Sen "may be a
sympathizer [of Maoists] but that does not make
him guilty of sedition," the apex court observed,
pointing out that "the worst that can be said
[about him] is that he was found in possession of
general documents [relating to Maoist activity]".
The court's observation has not only
struck at the roots of the sedition charges
leveled against Sen but also it has drawn
attention to the abuse and
excessive bandying of sedition charges by India's
law-enforcement agencies and lower courts.
It has kicked off debate in the country
over whether India's sedition law needs to be
reformed or repealed. Within hours of the court's
granting of bail to Sen, Law Minister Veerappa
Moily admitted that the sedition law "needs to be
looked into". "I am going to ask the Law
Commission of India to study it and make
recommendations," he told reporters.
An
internationally respected public health
specialist, Sen has been working among tribals and
other marginalized rural communities in
Chhattisgarh who are underserved by the
government. He is also all-India vice president of
the People's Union for Civil Liberties (PUCL) and
general secretary of its Chhattisgarh unit, and in
this capacity he has investigated and laid bare
the government's abysmal human-rights record.
Sen has been sharply critical of the
Chhattisgarh government's strategy towards the
Maoists, drawing attention to the many
human-rights abuses unleashed by the Salwa Judum,
a state-run vigilante squad. He has spoken up
against the killing of innocent civilians in fake
encounters, forced displacement of tribals and
rampant corruption and siphoning off of funds
meant for tribal welfare.
This appears to
have earned Sen the wrath of Chhattisgarh's
politicians and officials, which culminated in his
arrest in 2007 under the draconian Chhattisgarh
Special Public Security Act, 2005 and the Unlawful
Activities (Prevention) Act, 1967. He was charged
with sedition and conspiracy to help Maoists build
a network in Chhattisgarh.
During the
trial, the prosecution accused Sen of acting as an
intermediary for the Maoists, claiming that during
his repeated visits to jailed Maoist ideologue
Narayan Sanyal he had acted as a courier for the
rebels, carrying seditious letters and passing
them to a tendu leaf trader, Piyush Guha.
Sen has denied acting as a middleman,
maintaining that his visits were with prior police
permission and made as a doctor and PUCL
representative. His lawyers also argued that the
"evidence" - letters by Maoist leaders among other
things - was fabricated.
In the letters
"Sanyal" complains about jail conditions, his
advanced age and arthritis, castigates an unnamed
associate for failing to keep in touch and
congratulates others for the success of the ninth
congress, urging them to expand work among the
rural peasantry and urban population. This is
hardly seditious content.
Yet in December
2010, Sen was convicted for "conspiracy to commit
sedition" and sentenced to life by a Chhattisgarh
court.
According to Section 124(a) of the
Indian Penal Code (IPC), "Whoever, by 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, shall
be punished with imprisonment for life, to which
fine may be added, or with imprisonment which may
extend to three years, to which fine may be added,
or with fine."
In 1962, in the Kedarnath
Singh vs State of Bihar case the Supreme Court
read down Section 124(a) to clarify that
disaffection, however, strongly worded does not
constitute sedition unless there is incitement to
violence.
Introduced by the British
colonial government in 1870, the sedition law was
used to crush dissent. Among those who were
convicted on sedition charges were leaders of the
Indian freedom movement, including Mahatma Gandhi.
Gandhi was prescient in recognizing the threat
that Section 124(a) posed to democracy when he
described it as the "prince among the political
sections of the Indian Penal Code designed to
suppress the liberty of the citizen". Yet
independent India retained Section 124(a).
Critics of the sedition law argue that it
is being used to stamp out challenges to the
state, to crush dissent, even to silence criticism
of government policy. "Dissent is the essence of
democracy but the sedition law criminalizes it,"
Arvind Narrain, founder-member of the
Bangalore-based Alternative Law Forum, told Asia
Times Online. The law violates a citizen's right
to freedom of speech and expression guaranteed
under Article 19 (1)(a).
According to
Kavita Krishnan, national secretary of the All
India Progressive Women's Association, "The very
notion that political activity can be declared
seditious and people put in jails for this is
against democratic principles."
A law that
conflates disaffection with disloyalty and
criticism as treason has no place in a democracy,
The Hindu opines in an editorial.
Raju
Ramachandran, a senior advocate in the Supreme
Court and a former Additional Solicitor General of
India, disagrees. "The sedition law is absolutely
compatible with democracy," he told Asia Times
Online, stressing that "it is essential for
preservation of the state, which itself is
essential for exercise of democratic rights and
freedoms".
Ramachandran draws attention to
a dire scenario if the sedition law is done away
with. "In the absence of a law by which the state
can preserve itself, anarchy would result," he
says, adding that in a state of anarchy, there
would be no state to guarantee these rights. "What
use would democratic rights or freedom of speech
have in a state of anarchy?" he asks.
The
multiple threats that the Indian state faces from
terrorism and insurgency make it even more
imperative to retain the sedition law,
Ramachandran stresses.
In India's
insurgency-wracked northeast, in Punjab, Kashmir
and the Maoist areas, hundreds of people have been
slapped with sedition charges. But also across the
country, civil-rights campaigners, activists
fighting for the rights of Dalits
(ex-"Untouchable" caste) and Muslims, indeed
anyone criticizing the government or asking
uncomfortable questions are fighting sedition
cases.
And despite the Supreme Court's
1962 ruling, even those who haven't incited
violence are being slapped with sedition charges.
Kashmir University lecturer Noor Muhammed
Bhat recently found that asking students in
Kashmir to write an essay on whether stone
throwers are the real heroes could result in his
fighting sedition charges. Bhat was arrested for
setting an "anti-establishment" English exam
question paper when the Kashmir Valley was
smoldering in the aftermath of the mass protests
in 2010.
Journalist Khaturam Sunani's
report that Pahariya tribals were consuming "soft"
dolomite stones (known locally as jhikiri)
in Orissa's Nuapada district due to acute hunger
earned him sedition charges in 2007. In Tamil Nadu
last year, environmentalist Piyush Sethia was
charged with sedition for distributing pamphlets
that criticized Operation Green Hunt, the ongoing
anti-Maoist military operations in eastern India
that has resulted in high civilian casualties. The
pamphlet called on people to "not remain silent"
and to participate in a "cycle yatra" (a
procession on cycles) to Sivaganga, Home Minister
Chidambaram's electoral constituency.
Writer/activist Arundhati Roy's comment at a
seminar in Delhi last year that "Kashmir has never
been an integral part of India" prompted many to
demand that she be charged with sedition. A probe
is on to determine whether her speech and those of
Kashmiri separatist leader Syed Ali Shah Geelani
and revolutionary poet Varavara Rao at the seminar
were indeed seditious in content.
There
are hundreds of nameless Indians who are
languishing in jails on charges of sedition,
prompting activists and legal experts to call for
reform, even repeal of the law.
Narrain
says that the "sedition law must go in toto". The
Supreme Court's 1962 reading down of the law
"amounts to its reform but this has had no impact
on the ground", he says. People are getting locked
up on sedition charges even when they haven't
incited violence. Even if they can appeal court
decisions, they are wasting years fighting court
cases.
The mere fact that the law is
misused is no ground to jettison it," argues
Ramachandran. "People are wrongly implicated in
rape, murder or cheating cases. Do we repeal these
laws then?" he asks. He draws attention to legal
remedies such as Section 482 of the Criminal
Procedure code to correct misuse of the law.
Several legal experts are suggesting a
middle ground - reform of the sedition law. Former
solicitor general Soli Sorabjee has called for
"substituting Section 124(a) with another that
clearly includes the 1962 Supreme Court
clarification" that incitement to violence is
essential for an act to be construed as seditious.
Ramachandran says he concurs with this view.
The law minister's remark on the need to
revisit the sedition law has raised hopes of
reform of this law. However, there are fears that
if it is sent to the Law Commission for
recommendations, change could be a long time
coming.
Indians take pride that theirs is
a vibrant democracy. But if India wants to
continue calling itself a democracy, the
government will have to listen to voices of its
people, especially dissenting ones. Silencing
through sedition laws will not remove
disaffection.
As Gandhi said during his
sedition trial in 1922, "Affection cannot be
manufactured or regulated by the law. If one has
no affection for a person, one should be free to
give the fullest expression to his disaffection,
so long as he does not contemplate, promote or
incite to violence."
Sudha
Ramachandran is an independent
journalist/researcher based in Bangalore.
(Copyright 2011 Asia Times Online
(Holdings) Ltd. All rights reserved. Please
contact us about sales, syndication and
republishing.)
Head
Office: Unit B, 16/F, Li Dong Building, No. 9 Li Yuen Street East,
Central, Hong Kong Thailand Bureau:
11/13 Petchkasem Road, Hua Hin, Prachuab Kirikhan, Thailand 77110
