Uttar Pradesh. Madhya Pradesh. Kerala. Karnataka. Rajasthan. 29 arrests, with 20 more booked. Investigations on college campuses. Teenagers hauled away from their homes and beaten up. Charges raised of sedition, rioting, outraging religious sentiments and promoting disharmony among communities.
You would be forgiven for thinking that all this is related to a terrorist plot. Or a secret plan to overthrow the government. Or an attempt to instigate communal riots.
The actual reason?
Cricket.
No, seriously, cricket. More specifically, Pakistan’s victory over India in the cricket Champions Trophy last Sunday – a victory that some people allegedly celebrated, as a result of which they were arrested and charged with crimes against “the State” and “Public Tranquillity”.
Cheering on Another Country in Sports – Worthy of Consequences?
Independent of the legal arguments, the fact that there is even a sense of moral or emotional outrage over the concept of people cheering on another country in a sport is nothing short of ludicrous. Sports are not wars or battles where national boundaries have any real meaning. There could be any number of reasons to support a different country in a sporting event against your own. These could be serious ideological ones, like South Africans who didn’t support their cricket team during the apartheid years; or more frivolous ones where one just does not like the players.
Nonetheless, freedom of speech as a concept also ensures that others may disapprove of your decision, which is understandable at least. Mere disapproval is fine, but when that disapproval becomes outrage, translating into complaints to the authorities, and actions by the state against someone, a line has been crossed. As senior advocate Mohan Parasaran pithily says, this is a Khap Panchayat way of approaching things. And it should have no place in a country that constitutionally guarantees freedom of expression.
Coming to the law, the offences under which the police have charged these people thus far are:
The sentences for these crimes are not minor, with each of them punishable with imprisonment – and sedition in particular being punishable with life imprisonment. Charging people with such offences is not a light matter; yet they are being used, even though the chances of a successful prosecution are about as good as an ice cube’s hopes in hell.
Also Read: Dear “Patriots”, Cheering Pakistan’s Cricket Win Isn’t Sedition
Sedition? Not Even in British India
The most serious charge in these cases is, of course, that of sedition. Section 124A of the IPC targets anyone who –
Brings or attempts to bring into hatred or contempt, or excites or attempts to excite disaffection towards, the Government established by law in India.
This offence was not even included in the initial enactment of the Indian Penal Code in 1860, and after being inserted 10 years later, eventually came to be used as a tool to prosecute dissidents, including non-violent freedom fighters. Bal Ganghadar Tilak, for instance, faced a number of sedition charges for news articles. But even as the British government widened the scope of Section 124A to include any criticism of it, cheering another team in a cricket match would probably never have fallen within its ambit.
Even after Independence, the Constitution, and various high courts declaring sedition unconstitutional on impeccable grounds, the Supreme Court upheld Section 124A in 1962 –though with a narrowed scope. The Quint spoke to a number of eminent lawyers, and all of them were unanimous about one thing – supporting a rival team in a cricket match cannot, by any stretch of the imagination, fall within the scope of sedition.
Former Attorney-General Soli Sorabjee strongly disapproves of these cases, and notes that the test for sedition laid down in Kedar Nath Singh v Union of India (1962) cannot be met in them. This test, laid down by a Constitutional Bench of the Supreme Court, holds that the offence is only complete if the words or actions of the accused have a tendency of creating public disorder by violence. That too, has to be public disorder with the government as its target.
As senior advocate Prashant Bhushan points out,
The Supreme Court has said that sedition can only be made out where there is an attempt to overthrow the state, by violence and public disorder. The events here relate to support during a cricket match, not a war. Even in war, it is possible to criticise one’s government if they are doing something wrong, and voice support for actions of the other side that are moral.
Even the shouting of slogans like “Khalistan Zindabad”, which in its sentiment entails the secession of part of the country, and rejection of the Indian government’s authority there, have been held by the Supreme Court to not be aimed at exciting or attempting to excite hatred or disaffection towards it.
What About the Lesser Charges?
Leading senior advocate Sanjay Hegde does not think that even the lesser charges could be made out on the facts of celebrating Pakistan’s victory in the cricket match. And it’s difficult to disagree.
The Section 295A charge of hurting religious sentiment will obviously fail as no religious sentiments could have been hurt. There was no unlawful assembly, and no violence committed against anyone, so the rioting charges also cannot stick.
At a stretch, the 153A charge of promoting enmity between communities could apply here. However, the Supreme Court in Bilal Ahmed Kaloo v State of Andhra Pradesh (1997), had warned against taking a casual approach to both this charge as well as sedition. Even this offence, therefore, has a high threshold, that surely cannot be met by cheering or celebration of a cricket rival.
Blatant Misuse
Given the strong Supreme Court precedent, Prashant Bhushan believes that these kinds of charges are a “gross misuse” of sedition law. Sanjay Hegde and Mohan Parasaran also agree that there is a trend of blatant misuse of sedition provisions.
It should be clarified that sedition has been used to stifle dissent during the tenure of multiple governments, not just the current one. Binayak Sen’s mere possession of three letters was enough to see him convicted back in 2010, for instance. Students in Kashmir were charged with sedition in March 2014 for allegedly celebrating a Pakistan cricket win, though all charges were hastily dropped there.
This time, even when sedition charges are being dropped, they are being replaced with others.
This recent set of arrests, however, involves something even more problematic than your garden-variety attempt to stifle dissenting views. According to the Indian Express, the complainant for the Madhya Pradesh arrests, Subhash Laxman Koli denies making a complaint to the police. In a Kafka-esque turn of events, he claims that the police made him a witness when he had gone to the police station to help someone who had already been taken to the police station for shouting pro-Pakistan slogans! Neither Koli nor anybody else interviewed by the newspaper at the village themselves heard any slogans or firecrackers as alleged in the complaint, it was all hearsay.
The police in Kerala investigating the charges against 23 people from Kasargod are also finding, according to The News Minute, that the complaint there was based on hearsay. No local residents heard any anti-India sloganeering, though they did at least hear some crackers burst. The sub-inspector in charge also says that the complainant in the case, BJP Kumbadaje panchayat committee president Rajesh Shetty, who claimed to have personally heard such slogans, was nowhere close to where the alleged incident happened, based on a phone signal trace.
Unjustified and Unacceptable Harassment
There are thus serious concerns that these allegations are being made to whip up communal tensions, without any basis. All the reported accused in these cases are Muslim, as you would have probably guessed. Sanjay Hegde also sees a communal angle to this – as a way to exclude Muslims from cricket if they don’t conform to the dominant view, similar to the way in which the crackdowns on beef have attempted to reform their eating habits.
The dystopian aspect of these charges is that it is not even clear that the accused have committed the acts for which they are (wrongly) being accused of. On top of that, they will have to face questioning by the police, jail-time, and the arduous process of arguing their case in the courts. This is harassment of a particular community, pure and simple, without even the flimsiest of reasons.
How Can We Combat This Misuse?
The obvious place to start is with the police, whose training should include the dictates of the Supreme Court that strongly urge caution before registering any such cases. Unfortunately, the police do not have legal expertise, and are often likely to be influenced by political forces.
That is why the courts need to step up. Bhushan and Parasaran both highlight a disturbing trend of the courts to not intervene in such matters, despite clear precedent. Both emphasise the need for courts to be aware of their role in protecting the rights of those being charged without reason, or for their role in civil rights movements. Parasaran suggests that it might be helpful to set up a system of special benches to dispose of such cases swiftly, preventing this kind of harassment from dragging on.
And it’s not just the courts that need to play a bigger role. Parasaran rightly argues that commissions like the National Human Rights Commission and its state equivalents should also be playing a much bigger role in fighting the misuse of sedition law. On the contrary, the chairman of the National Commission for Minorities has called for people supporting Pakistan in cricket matches to be deported to Pakistan. Parasaran therefore says,
Instead of actively protecting people’s rights, these commissions seem to be more interested in protecting political interests. An ombudsman should be appointed to monitor their work in protecting citizens’ rights, to ensure greater transparency.
And of course, there is public opinion. It’s not difficult to find people who support these kinds of charges being slapped against people for something as ridiculous as this. As long as this kind of support exists, we will never see the end of such complaints and arrests as a consequence. It can only be hoped that a better understanding of sedition and the law will help change this, and journalists and lawyers work together to make this happen.
Is It Time To Repeal Sedition?
There are still those who feel that sedition has a purpose. Mohan Parasaran is of the view that it should not be repealed as there are genuine threats from terrorism and the likes, which the provision would cover well. However, he does believe that such a provision has to be implemented with great care, and only where absolutely required.
On the other hand, in his recently published book on free speech under the Indian Constitution, Offend, Shock, or Disturb, reputed scholar and lawyer Gautam Bhatia posits that even in its narrowed form, Section 124A, by criminalising a ‘tendency’ to promote disorder, is arguably unconstitutional in light of a line of Supreme Court decisions.
The tendency aspect of sedition is what allows an interpretation that people celebrating a Pakistan cricket win can be charged with sedition, even though no disorder with the objective of overthrowing the government takes place.
In the absence of parliamentary repeal, or any clearer Supreme Court guidance on the matter, Bhatia writes that –
The provision, with its broad and compendious wording, continues to be abused in deeply anti-democratic ways.
Both Bhushan and Hegde strongly advocate for the repeal of the sedition law as the best way to prevent such abuse, since it has outlived its colonial past and should have been repealed on Independence. It is hard to disagree with this stance, as sedition was promulgated at a time when, as Bhatia writes,
There was no meaningful difference between government and State.
As a result, words against such a government were problematic because this would never change. On the other hand, in independent India, where governments are transient, criticisms of the government, however harsh, are essential to the democratic process. Other provisions like 153A or 295A have a certain utility in preventing hate speech, but even these need a strong overhaul to prevent misuse, something the Law Commission has been looking at.
On the whole, even if there is a need for a provision that can be used to combat attempts to overthrow the government, it is increasingly clear that sedition is not it. The most balanced solution, therefore, seems to be a repeal of the existing sedition law, and, if absolutely deemed necessary, promulgation of a new law to combat relevant threats, in full accordance with the Constitution.
It is hoped that if they do draft such a legislation, the lawmakers of the country will avoid inapplicable colonial ideas, and instead utilise the inputs of actual legal experts who value the rule of law.
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