All Fluff & No Substance in Maharashtra’s Circular on Sedition

Maharashtra’s circular on sedition has many counterparts in Indian law curbing civil liberties, writes Saurav Datta.

Draconian Circular

• This circular is another example of every government’s attempt to stifle criticism
• The circular contains certain terms, the English equivalents of which are conspicuous by their absence from both the statute as well as the list provided to the high court
• Wrong to criticise only Fadnavis’ BJP government; in 2012 the previous Congress-NCP dispensation had emphasised the need to retain the provision
• A conscientious believer in democracy and freedom of expression should be wary of falling into the trap of political skullduggery and shrill accusations

Nothing substantial is achieved by needling the Fadnavis government.

A lather of outrage is still being built up over the Devendra Fadnavis government’s August 27 circular on the application of Sec. 124-A of the Indian Penal Code — the offence of sedition. Rajdeep Sardesai, who calls it “draconian” had a BJP spokesperson from Maharashtra, Sanju Verma on his programme (see from 28:16) who defended it  tooth and nail, contending that freedom of expression is not without its limits, and anti-national speech and utterances must be dealt with strictly by the brute force of criminal law. She also stated that the circular is actually beneficial, because it is in consonance with various rulings of the Supreme Court and the Bombay High Court‘s judgement in cartoonist Aseem Trivedi’s case.

The Opposition, on the other hand, has gone on the offensive, with the NCP (Nationalist Congress Party) comparing it to a diktat from the Emergency era and the Congress claiming that it is aimed at throttling dissent and criticism of the government’s mishandling of serious situations. And then of course, there was “opinion website” OpIndia revelling in its fealty-laden rant against all those who criticised the circular.

Truth to be told, beyond the craven defence and the opportunistic, cynical, vehement criticism, the reality remains constant- that this circular is only the latest exhibit in a long line of every government’s attempt to put the kibosh on any kind of criticism or critique. It is nothing but a feeble and dishonest attempt to assuage the population and polity that the present government is magnanimous enough to try reigning in the arbitrariness with which the police and the state arrest anyone who dares to demonstrate “disaffection” towards the government.

Is The Maharashtra Circular Too Strident And Excessive?

The circular, as Addl. Chief Secretary KP Bakshi rightly points out, is only an advisory, and not binding upon the police, unlike a government resolution. It means that it only seeks to guide, not order.  The government issued the circular because it had assured the Bombay High Court, in Trivedi’s case, that it would issue guidelines laying down the pre-conditions for slapping sedition charges on anyone.  Senior Advocate Mihir Desai, who represented Trivedi, contends that the clauses are incomplete, and a clumsy and inaccurate translation from English to Marathi has resulted in stating that any criticism of a government representative would invite a criminal charge.  Desai’s claim is valid, because semantics matter, especially in those cases where the agents of state vest in themselves the legal authority to act out of a perpetual sense of insularity and self-righteous indignation.

Moreover, the circular contains the terms “drohbhavna” and “apreeti”, the English equivalents of which are conspicuous by their absence from both the statute as well as the list provided to the high court.  Because the former easily translates into “rebellious thought(s)” and the latter into “unpleasantness”, prima facie, they fly in the face of the court’s mandate and the government’s solemn assurance. They empower those who proudly act more out of an adrenalin rush of patriotism rather than an adherence to legal principles.

Also, the first guideline submitted to the court, states “incitement to violence” –meaning, thereby, that only sufficiently incendiary speech or expression would bring criminal liability, while the circular says “athva” (“or”, in Marathi). Thus, it can be fairly stated that a mandatory requirement has been turned into an obligatory factor one can merrily choose to ignore. One has no way of knowing whether this deft change is deliberate or a result of the draftsmen’s ineptitude.  The government hasn’t provided any clarification yet, but its recent attempt to twist the criminal law in order to insulate corrupt ministers and public servants could be a helpful indicator.

The Real ‘Seditious’ Questions

It would also be disingenuous to only pillory Fadnavis’ BJP government, because in 2012 the previous Congress-NCP dispensation had emphasised upon the need to retain the provision and apply it with “grave urgency” in order to combat terror and Naxal threats. The Supreme Court, which in the Kedar Nath case had “read down” the section in order to rein in the government’s excesses, has a chequered record here, what with a pronouncement like “sedition is a crime against” society , an exaltation that “Khalistan zindabad” slogans in a public square wouldn’t be considered seditious , or a lament that governments were using the offence to selectively target its critics, and often, courts acting as willing collaborators if not inadvertent accomplices. 

Geeta Seshu, senior journalist and a grizzled veteran of freedom of expression battles, minces no words in saying that it is the Indian state, and not any particular government of any XYZ political party which is obstinate in its determination to retain and proactively use a law the British liberally unleashed against native dissidents. In a conversation with this writer, Ms. Seshu stresses that right from the time of independence, political leaders of all hues and colours, starting with Nehru (who termed sedition as “obnoxious”) have paid only cynical lip-service to a citizen’s right to trenchantly criticise the government.

The occasional and selective criticism of a “colonial era law” accompanied with the hand-wringing about its necessity despite its provenance, only proves this point. Worse, she says that of late, new laws — for example, the Chhattisgarh Special Security Act, or the Unlawful Activities Prevention Act, which criminalise the possession of “anti-national” literature, are just surrogates of the sedition law. And these are being routinely used to incarcerate civil liberties for vindictively prolonged periods.

Therefore, a conscientious believer in democracy and freedom of expression should be wary of falling into the trap of political skulduggery and shrill accusations. It is the Indian state as an entity which must be relentlessly subjected to criticism and finally compelled to abrogate an ominous and oppressive law.