Two orders given by India's Supreme Court in two separate cases early this month have, once again, brought into sharp focus the issue of the colonial-era law relating to sedition in the context of media freedom. Both cases involve journalists and their reporting.
One of the cases relates to the booking of two journalists of Telugu language news channels under Section 124A of the Indian Penal Code (IPC) for telecasting a speech by a dissident leader of Andhra Pradesh's ruling YSR Congress Party, which allegedly spread disaffection with the state government. The other case pertains to an FIR filed against noted journalist Vinod Dua, who was accused of having made remarks against Prime Minister Narendra Modi and his government's handling of the migrant labour crisis during the Covid-19 lockdown in 2020. In the hearings in both cases, the top court has made important observations which have a strong bearing on media freedom and the future of the sedition law.
In the case relating to the Telugu news channel journalists, the apex court underlined that there is a need for examining afresh the scope of the sedition law, given the frequency of sedition charges being levelled against the media for publishing views critical of the establishment. In the case of Dua, a separate bench of the Supreme Court not only quashed the FIR against him but also said, pointing to a 40-year-old ruling of the apex judiciary, that no journalist can be arrested just for criticising the government if he or she did not incite violence against the government or fomented hatred among communities. The bench made it a point to refer to a 1962 judgement of the top court in the "Kedar Nath Singh versus Union of India" case and averred that every journalist would be entitled to protection in terms of the principles contained in the judgement of the case.
The importance of the Indian Supreme Court orders on June 1 and 3 respectively get amplified when one recalls that a fresh constitutional challenge by two journalists, Kishorechandra Wangkhemcha and Kanhaiya Lal Shukla, is still pending before the apex court.
The media fraternity in the country and the Editors Guild of India have naturally welcomed the two orders of the Supreme Court in view of the growing perception that the 1870 sedition law, which provides for imprisonment from three years to life, has become a convenient tool in the hands of a government—state or central, and irrespective of political colour—to intimidate and muzzle the media as well as critics of the government's policies and actions.
"Article 14," a media and research group, was quoted by The Times of India as pointing out how the number of sedition cases has risen over the last decade. Scouring data from courts, police and law publications, the group reportedly said that 10,938 Indians have been accused of sedition in 816 cases since 2010, with a majority of them under the Bharatiya Janata Party-led National Democratic Alliance rule.
The political dimension of the use of the sedition law comes out clearly when one sees how several sedition cases were filed in connection with major street protests against the Kudankulam nuclear power project in the southern state of Tamil Nadu when Congress party ruled India in 2011, and during the violent protests against the BJP dispensation's Citizenship Amendment Act—which gives Indian citizenship to "persecuted" religious minorities from Bangladesh, Afghanistan and Pakistan—in December 2019.
The anxiety amongst media professionals over the regularity with which sedition cases have been filed against journalists has often boiled over, leading to calls by some for abolition of the sedition law. (The Times of India described it as "one of India's worst laws".) So, the question arises: should the sedition law be done away with? One must realise that even if the law goes, sedition as a crime cannot be wished away. It should be noted that the Supreme Court's 1962 order in the Kedar Nath Singh case upheld the constitutional validity of the sedition law. All that the apex court did was restrict its scope for misuse. In fact, the 1962 ruling's seven principles mention the situations in which the sedition charge cannot be applied.
Section 124A of the IPC says: "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…" It has been suggested by many journalists that this formulation—particularly words like "hatred", "contempt" and "disaffection"—is too vague and leaves a grey area that lends itself to open and subjective interpretations. That perhaps is true of several other laws and not just sedition legislation. It has also been contended that whether a remark or action constitutes prima facie sedition should not be left for a police officer or the political executive to decide, but rather a committee of legal experts should take a call on where a sedition case is made out for filing an FIR relating to the charge.
Data dished out by the National Crimes Record Bureau show that the conviction rate in cases relating to sedition in India is about 3.3 percent. It is time for the police, an arm of the state often misused by a ruling party to suppress the opposition, and trial courts, which often refuse to grant bail to those accused of sedition, to be very cautious before applying the sedition law. Expression of opinion criticising a government, even if appearing to be toxic at times, can never be held seditious.
The Indian polity has, in the last decade, been sharply polarised. Unfortunately, much of the media too has become highly opinionated bordering on activism, dishing out selective narratives through their news reportage convenient to their political predilections. Such narratives are often presented without a proper perspective on any issue for fear of digging up the past which can be uncomfortable to the ruling party—in either a state or at the Centre. Every story has two sides. But it appears that objectivity as a journalistic value is no longer an option.
Pallab Bhattacharya is a special correspondent of The Daily Star. He writes from New Delhi, India.