Kanhaiya Kumar charged with sedition: Sec 124A of IPC potent political tool, but low conviction rate shows law has outlived utility

Ten people in New Delhi — including three prominent former student activists from one of India’s top universities — are fighting a common tribulation as an 80-year-old award winning writer and a senior journalist in Assam. These people, all of whom would ideally be respected in academic circles and civil society are accused of waging a war against Union of India and indulging in acts of willfully subverting the lawful government: their alleged crimes, very different in scope of motivation and what they demand, are all hinged on a single law, Section 124A of the Indian Penal Code. This wouldn’t be the first time (and hopefully not the last) when the debate on the validity and fairness of the sedition law was reignited. Much has been written and said about this controversial law, which is a heirloom of India’s colonial masters. However, this article will concern itself with the usefulness and the uselessness of it. But first, here’s what the law states in letter and spirit: “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 life imprisonment.” [caption id=“attachment_3959175” align=“alignleft” width=“300”] Representational image. AFP[/caption] Sedition Law: A potent political tool? When the Delhi Police filed a chargesheet against former JNUSU president Kanhaiya Kumar and former JNU students including Umar Khalid and Anirban Bhattacharya, charging them under the controversial Section 124A of the Indian Penal Code, the Opposition called it political vendetta. Kanhaiya, a former head of the students’ union at New Delhi’s Jawaharlal Nehru University, was arrested in 2016 at a rally to commemorate the anniversary of the execution of a Kashmiri separatist who had been convicted for an attack on India’s Parliament. Senior Congress leader P Chidambaram dubbed the charges against Kanhaiya and others as “absurd” while he claimed that if it takes three years and 1,200 pages to make out a charge of sedition (based on a public speech), that alone exposes the motive of the government. Kanhaiya, meanwhile, termed the case against him a “diversionary ploy by the Modi government to hide its all-round failures”. “What is pertinent is the timing of the charge sheet - just ahead of the Lok Sabha polls. It is evident that there is a political motive behind this. The motive is that the Modi government has been a failure in all aspects, it has not been able to fulfil even a single promise, so it is playing all its cards to divert the attention,” he told reporters. It is notable that Kumar and his colleagues had vociferously opposed the BJP and campaigned heavily in prime minister’s home state Gujarat against the BJP in the last year’s Assembly elections. The BJP won the polls, but the Congress managed to slim the gap. Kanhaiya’s allegations, though undeniably come with ideological baggage of their own, are nonetheless interesting to explore. Take a look at the circumstances under which the intellectuals from Assam were accused of seditious activities. Hiren Gohain, an 80-year-old academic, peasant leader Akhil Gogoi, senior journalist Manjit Mahanta, and RTI activist and chief of the Krishak Mukti Sangram Samiti  Akhil Gogoi have been accused of criminal conspiracy and attempting to wage a war against the government because they strongly criticised the Citizenship (Amendment) Bill , a draft law that the BJP considers a political necessity ahead of the Lok Sabha elections but is being widely criticised in the entire North East. Besides, they were an inconvenience for the state BJP government which was struggling to contain massive protests against the citizenship bill. The cases have been filed amid a wave of protests in the BJP-governed northeastern state of Assam. But the Bill is unmistakably timed to attract the Hindu population elsewhere in India in an election year, as the prime minister announced that the new law would “atone for the sins of Partition.” Add to the backdrop the fact that BJP’s regional ally in Assam withdrew support over the issue, and key BJP allies in Meghalaya, Arunachal Pradesh and Mizoram have also strongly proteste d against the Bill. Some BJP members too have criticised the Bill in Assam, Manipur and Nagaland. Before this, a case was slapped against Congress leader Divya Spandana under this law, for calling Prime Minister Narendra Modi a ‘chor’ (thief) — a charge that ha been repeated by Congress president Rahul Gandhi and other Congress leaders multiple times — while voicing her political opinion. While the language of her tweet might have been a bit unpalatable, especially for the prime minister’s supporters, it hardly amounted to waging a war against, or exciting disaffection against Government of India. Divya was earlier to facing accusations under the law as she praised Pakistani hospitality after attending a SAARC Summit.  In 2014, the police in the city of Meerut arrested a group of students from Jammu and Kashmir for cheering for Pakistan in an India versus Pakistan cricket match. Divya had merely voiced an opinion contrary to then defence minister Manohar Parikkar’s that “going to Pakistan is the same as going to hell”. Divya wrote in her post that “Pakistan is not hell. People there are like us.” The Congress government too has multiple examples where it used the law to stifle political dissent while it poses as the crucader of free speech wherever it is in opposition. In 2010, writer Arundhati Roy had charges filed against her for being vocal about the possibility of Kashmiri independence. More recently, the Congress party which has been decrying the “murder of democracy” by BJP, slapped sedition charges against Amnesty International India for organising a programme on Kashmir in which some unidentified people allegedly raised secessionist slogans. In 2007, the UPA government used it to arguably stifle a report on Salwa Judum prepared by human rights activist Binayak Sen . Sen was accused of ‘couriering’ Naxalite letters and arrested on charges of sedition by the Chhattisgarh police. What did the sedition law achieve in recent past? If one were to judge the usefulness of a criminal law, the best guess is to look at the cases filed, how it affected the aggrieved or the victim, and the rate of conviction under the law. Since the aggrieved in this case is the State, and more accurately the political dispensation of the day, we are left with the remaining two factors only. According to the National Crime Records Bureau’s latest report from 2016, 86 cases were under investigation in that year. However, 25 of these cases were disposed off by the police, in six cases police did not sufficient evidence and two were reported to be false, and 61 others were pending investigation. Of the total 34 cases that reached court, only one was found robust enough to convict the accused even under the stringent colonial-era definition of the law. The conviction rate remains as low as 33.3 percent. Moreover,  _ India Today _ quoted Ministry of Home Affairs data to report that from 2014 to 2016, 179 people were arrested on the charge of sedition but only two were convicted in three years. One conviction was procured by the Jharkhand Police in 2014 and the other by the Andhra Pradesh Police in 2016. What then does the government achieve by suing citizens when the court so frequently disposes them off? The answer lies in the long drawn litigation process, and the time and energy it consumes to see a case through till the end. Thus many argue it comes in handy as a potent tool to harass and intimidate dissidents, but otherwise remains quite useless in delivering justice to the aggrieved. This is not to mention the chequered history of the law which was arguably a brainchild of TB Macaulay, India’s First Law member, who codified the law in IPC. Henceforth, the British administration expanded the scope of the law to include hateful speech to the merest inclination showing disloyalty or ill feeling towards the Crown. So when elected governments in Independent India, that ideally don’t need unconditional reverence from voters, freely apply the same law, what political motives do they seek to achieve? The Supreme Court has given wide ranging explanations over what amounts to sedition and what is plain criticism of the government. The Law Commission of India too has suggested it was time to rethink or even repeal Section 124A. Yet the government finds grounds to stick along these charges. As the accusations and epithets swirl thick and fast, it leaves us something to think about.