Supreme Court lays down norm; time to erase colonial-era law
The Supreme Court of India deserves unreserved praise for its decision to dismiss a sedition petition against former Jammu and Kashmir Chief Minister Farooq Abdullah with a fine of Rs 50,000. The Bench of Justices Sanjay Kishan Kaul and Hemant Gupta has laid down a much-needed norm when it ordered that dissent is not sedition. Unfortunately, the colonial-era law, which says that ‘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 shall be punished with imprisonment for life’, still remains as Section 124 A of the Indian Penal Code. None of the founding fathers or the subsequent liberal governments found this vague and draconian provision distasteful enough to get it removed from the statute book. Hence, the constitutional court’s order assumes the status of a touchstone for the legality of the application of 124 A.
The learned judges have made it clear that dissent or disagreement with the decisions of the Central government is not sedition. So, Disha Ravi and Farooq Abdullah cannot be prosecuted simply because they do not agree with the government on farm laws or the abrogation of Article 370. There is no democracy without dissent and debate. The court has correctly identified the petitioners’ attempt as ‘publicity interest litigation’, and by imposing the fine it has sent a cautionary message out to frivolous and politically motivated litigants. That the order came the very same day a Washington-based think tank, Freedom House, downgraded India’s status from ‘free’ to ‘partly free’ points to two conflicting facets of India’s present-day predicament. While our institutions try to remain free, there is an attempt by those like the petitioners in the Abdullah case to make the country ‘partly free’ by gagging dissent using those very institutions. The government should ensure that its image does not get sullied any further by its police or vigilante groups, and it is in its interest to showcase India’s free media and all other democratic institutions.
Climate activist Disha Ravi is out on bail in the toolkit case, 10 days after her arrest that had sparked outrage in India and abroad. The 22-year-old shouldn’t have been put in jail in the first place, going by the dressing-down given by a Delhi court to the police. Pulling no punches, Additional Sessions Judge Dharmendra Rana said, ‘The offence of sedition cannot be invoked to minister to the wounded vanity of the governments.’ This hard-hitting statement shows law enforcement officials as well as their political masters in a poor light. The Delhi Police were left red-faced as the court observed that the ‘scanty and sketchy’ evidence available on record was not sufficient to keep a person with no criminal record in custody. Calling citizens ‘conscience keepers’ of the government in a democratic nation, the court has made it clear that people cannot be put behind bars simply because they choose to disagree with the State’s policies. Such observations can help counter the unwelcome trend of vilification of protesters and hopefully deter cops from invoking the sedition law at the drop of a hat. In any case, the poor conviction rate of this colonial-era legislation is a good reason for the police not to go overboard time and again.
Judge Rana had been equally forthright last week when he granted bail to two persons who were booked on the charge of sedition for allegedly posting/sharing fake videos on social media regarding the farmers’ protests. He had sounded a note of caution about the misuse of the law ‘to quieten the disquiet under the pretense of muzzling the miscreants. It’s praiseworthy that the judiciary is intervening to prevent infringement of the individual’s right to dissent. The onus now is on the executive to respect difference of opinion and let protesters fearlessly have their say, as long as they don’t incite violence or disturb public peace. With India’s global ranking on the Democracy Index down from 27 (in 2014) to 53 last year, the government direly needs to make judicious use of the powerful tools at its disposal to maintain law and order.
India must realize that a democracy cannot be reduced to only demanding praise from the rest of the world
By Seema Chishti
“The recent arrest of the 22-year-old environmental activist, Disha Ravi, for amplifying the farmer protests internationally, unmasked the government’s designs to criminalize those who speak for human rights. This attitude was also visible in the Home Ministry’s directions to social media companies to block accounts of those expressing a point of view contrary to that of the government. A democracy which does not ensure and secure universal rights for all is a democracy only in name.”
The ongoing protests by farmers against the three hastily promulgated agriculture laws have drawn international attention, with the denial of democratic rights to them by the government’s construction of military-grade barriers and shutting down of the Internet at protest sites getting strong statements of support from numerous international celebrities. The official response of the Ministry of External Affairs was disproportionate to the provocation, but it was not merely the reaction of a thin-skinned government. The argument put forth by the government pushed a more fundamental premise: it warned the concerned global voices that these matters — democracy and human rights, left unstated — were India’s ‘internal affair’.
The recent arrest of the 22-year-old environmental activist, Disha Ravi, for amplifying the farmer protests internationally, unmasked the government’s designs to criminalize those who speak for human rights. This attitude was also visible in the Home Ministry’s directions to social media companies to block accounts of those expressing a point of view contrary to that of the government. A democracy which does not ensure and secure universal rights for all is a democracy only in name.
Being respected, not having their dignity violated and having a sense of security is what everyone, anywhere should get, whether it is Syrians on an Italian shore, the Rohingya in Myanmar, Hindus in Pakistan, or stateless refugees on a border in Mexico. No government has immunity because it violates human rights in its jurisdiction. Prime Minister Narendra Modi could not have been more misplaced as he was, when he spoke of ‘Foreign Destructive Ideology’ in Parliament to refer to global concerns for rights of protesting farmers. The belief that what India or what any other nation does to its people is an ‘internal matter’, is as misdirected a defense as the one a wife-beating husband deploys with his neighbors — that it is not their business.
Nation and the idea of rights
India played a signature role in drawing the world together to oppose the apartheid government of South Africa, and it took till 1962 to override the sovereignty shield used by the government to continue oppressing the Black population. India stayed firm from the 1950s till a resolution was adopted and a United Nations Special Committee Against Apartheid was set up by the United Nations. India’s work, in consistently creating awareness and resistance against the demonization of Nelson Mandela via the Rivonia trial in 1963, checked the Apartheid regime from awarding him the death sentence.
The principal document signed in the last century, the Universal Declaration of Human Rights laid down the terms for the post-war world, it enshrined the rights and the freedoms of all people, living everywhere. It was not something that was forced down India’s throat by its colonial rulers. India was a member of the first Human Rights Commission, which was to draft the ‘international bill of rights. The Universal Declaration of Human Rights was drafted from January 1947 till December 10, 1948, when it was eventually adopted by the General Assembly.
Along with the Charter of the United Nations that was signed earlier in San Francisco in 1945, Indian freedom fighters did their best to influence it and make its brief wider and more effective. Mahatma Gandhi issued a press statement in April 1945 which was directed at participants of the San Francisco conference and he extensively quoted from the All India Congress Committee resolution of August 8, 1942: “While the AICC must primarily be concerned with the independence and defense of India in this hour of danger, the Committee is of opinion that the future peace, security and ordered progress of the world demand a world federation of free nations, and on no other basis can the problems of the modern world be solved.” A line is particularly evocative – “…Thus the demand for Indian independence is in no way selfish. Its nationalism spells internationalism.”
At the time of the conference, Vijaya Lakshmi Pandit who went on to become the first woman President of the UN General Assembly, was on a year-long lecture tour of the U.S., and she had a deep impact on African-Americans battling entrenched racism at the time. Pandit powerfully advocated Mahatma Gandhi and Nehru’s ideas and emphasized their universality and the indivisible nature of rights that all human beings must enjoy.
She sent a note to the conference, urging them to be bolder than they were to be eventually. Scholars agree that Pandit’s alliances with Eleanor Roosevelt, Black activists and others forged at the time, subsequently helped push for a more comprehensive adoption of the Universal Declaration of Human Rights in 1948. The work of Indians like Hansa Mehta, Minoo Masani and Lakshmi Menon conveyed the message as being the same as that of the freedom movement — of freedom from oppression for all human beings (https://bit.ly/3qLAGiA).
Rights are indivisible
The makers of the Indian Constitution did not invoke paranoia about respecting Indian tradition, customs or hiding perverse practices. Dr. Sarvepalli Radhakrishnan famously said while commending the Objectives Resolution, or the basic road map of the Constitution, to the Assembly, that the endeavor was “a fundamental alteration in the structure of Indian society,… to abolish every vestige of despotism, every heirloom of inorganic tradition.”The triad of ‘Liberty, Equality and Fraternity’ engraved in the Preamble, drew significantly from the slogan which had proved influential following the French Revolution. It flowed from the realization, in Dr. B.R. Ambedkar’s words, that given the vice-like grip of the “graded inequality” of the caste system, all three elements, together, were absolutely essential if Indians were to realize their full potential. To quote B.R. Ambedkar who on the eve of the adoption of the Preamble explained how Liberty, Equality and Fraternity were connected and locked into each other firmly: “Without equality, liberty would produce the supremacy of the few over the many. Equality without liberty would kill individual initiative. Without fraternity, liberty would produce the supremacy of the few over the many. Without fraternity, liberty and equality could not become a natural course of things. It would require a constable to enforce them.”
New Delhi’s recent moves
To cite Atmanirbhar as a counter to international concerns about freedoms, equality and the right to dissent amounts to hiding behind the flimsy excuse of sovereignty to escape the bitter truth of the slithering slope of democratic rights India appears to be going down. The case the Indian government is making is all the more specious as its own immediate concern expressed, officially by its External Affairs Minister when visiting Sri Lanka, on the Sri Lankan government needing to do more to safeguard Tamil lives belies this principle. The starkest case where India made human rights of citizens of other countries its business was in 2019 when the Citizenship (Amendment) Act, offered a home for certain persecuted citizens of three foreign countries.
When it comes to universal human rights and international attention, the premier example is of the liberation of Bangladesh which India led and shepherded by invoking these principles. That India chose to and continues to host the Dalai Lama, who attracts visible support from high-profile global celebrities, is a testament to New Delhi’s commitment to human rights. That the public concern from international celebrities is tantamount to foreign ‘intervention’ carries no weight, as this is not about the Central Intelligence Agency or Vladimir Putin’s Russia meddling in Indian electoral processes. In fact, the Bharatiya Janata Party has been cavalier about amending the Foreign Contribution (Regulation) Act, or FCRA, rules permitting itself, a political party, to whitewash foreign funds with retrospective effect, in 2016.
The issue is a reality problem
The Prime Minister and his government have actively courted foreign approval. Two dozen foreign envoys were taken on a guided tour of Kashmir last week because getting a favorable opinion from foreigners matters to the government. At the height of tensions and the shutdown there, before Indian Members of Parliament were allowed, a delegation of far-right European Parliament members was bussed around deserted streets. The Prime Minister has personally appeared with celebrities in foreign lands during his numerous trips, seeking their approval. The craving for approval is natural for any publicity-seeking politician, but a democracy cannot be reduced to only demanding praise from the rest of the world and raising the bogey of ‘internal matters’ when international voices express solidarity with dissenters and raise serious concerns.
Global concerns about democratic rights in India cannot be dealt with by arresting messengers, bullying ‘amplifiers’ or shutting down social media accounts. India does not have an image problem; it has a reality problem. Changing the reality and adhering to best democratic practices inside is the only durable solution if the Modi government wants its image ‘fixed’.
“If highlighting farmers’ protest globally is sedition, I am better [off] in jail.”
This is one of the most powerful sentences spoken by an Indian in this century. Powerful, courageous and honest. Even more heartening is the fact that this comes from a 22-year-old young woman. She must have been told by her lawyers what implications the charge of sedition can have for her. Even an indication of being involved in the activities deemed seditious can jeopardise your life, if not forever then at least for a very painful, long time.
When with this knowledge, Disha Ravi, the youngster from Karnataka, a fellow of all Indians and a truly world citizen ? for her vocabulary is climatic, not bound by the boundaries of nations ? decides to make this statement, it frees language from the fear that has crippled it in India. It has been corrupted and corroded by falsehood and the cruelty of the powerful. It was therefore refreshing to see a lawyer facing all this with the power of simple truthfulness. Disha Ravi, the 22-year-old climate change activist charged with sedition after being arrested February 13 in connection with a “toolkit” relating to the farmers’ protest, walked out of Delhi’s Tihar Jail late Tuesday, Feb 23 night, hours after she was granted bail. Earlier, Additional Sessions Court Judge Dharmendra Rana said there was “scanty and sketchy evidence” against Ravi and that “I do not find any palpable reason to breach rule of bail for a 22-year-old girl who has absolutely no criminal antecedent”.
Judge Rana, who posed several searching questions during last week’s bail hearing, including repeatedly asking for evidence connecting Ms Ravi to the tractor rally violence, also made several strong observations on an individual’s right to dissent, and freedom of speech and expression.
“Even our founding fathers accorded due respect to divergence of opinion by recognising the freedom of speech and expression as an inviolable fundamental right. The right to dissent is firmly enshrined under Article 19 of The Constitution of India,” Judge Rana said.
“… sedition cannot be invoked to minister to the wounded vanity of the government,” he said.
In his order Judge Rana shot down Delhi Police arguments that Ms Ravi and two others – activist Shantanu Muluk and lawyer Nikita Jacob – had conspired with pro-Khalistani outfit Poetic Justice Foundation (PJF) to create and spread the ‘toolkit’.
The police had said that the accused and PJF co-founder Mo Dhaliwal had multiple Zoom meetings last month, days before the tractor rally violence, and alleged that this indicated a conspiracy that included the creation and spreading of the ‘toolkit’.
The judge, however, pointed out on Tuesday (as he had last week) that “there is not even an iota of evidence” connecting those who had acted violently on that day to Ravi or to the PJF.
“… in the absence of any evidence (that) the accused shared a common purpose to cause violence (on January 26) with the founders of PJF (Poetic Justice Foundation), it cannot be presumed by resorting to surmises or conjectures that she also supported secessionist tendencies,” he said.
Last week Judge Rana asked how certain motives could be presumed simply because Ms Ravi had met someone with bad credentials. The police answered: “Everyone knows Mo Dhaliwal. Why would you meet with such a person.” The judge shot back: “No. I don’t know who is Mo Dhaliwal.”
The Judge also took a dim view of the police’s argument when told the perpetrators of the tractor rally violence had arrested in separate case. “Where (then) is the connection between conspiracy and offence? I have still not got the answer,” he had said.
He also dismissed claims that Ravi’s sharing of the ‘toolkit’ online, and particularly with Swedish climate activist Greta Thunberg – who tweeted the link to the document – amounted to conspiracy.
“A citizen has the fundamental rights to use the best means of imparting and receiving communication, as long as (it) is permissible under the four corners of the law… to have access to audiences abroad,” he noted.
The police had also argued that the ‘toolkit’ sought to defame India by directing users to a website that “speaks about genocide, Kashmir…and defaming the Indian Army”.
However, Judge Rana shot that down too, noting that its contents made no call for violence and that he found “absolutely nothing objectionable in the said page”. He acknowledged that the imputations made were “really objectionable” but could not said to be seditious in nature.
Ravi is accused by Delhi Police of creating and spreading an online document linked to the farmers’ protest against the centre’s agriculture laws – a document the police says was meant to revive a Khalistani group and “spread disaffection against the Indian state”.
Ravi, who earlier this month told the court she had only edited two lines of the document and not created it, has said she only “wanted to support the farmers” in their campaign to get the controversial laws – which they say endangers their livelihoods – scrapped.
New Delhi (TIP): Bengaluru activist Disha Ravi was recently arrested by the Delhi Police for a “toolkit document” that she shared with Swedish activist Greta Thunberg. It can be seen that the toolkit was first highlighted after Thunberg tweeted a link to it but soon after deleted the post.
What is a toolkit?
“Toolkit” is a term activists use for a campaign information document. It is a valuable resource that can be used to sustain a campaign or movement, used mostly on the internet. Recently, Greta Thunberg shared a link to the toolkit on the farmer’s protest which, was found to contain some pro-Khalistani elements.
It is reportedly said that the toolkit shared by the activists tried to explain the farmers’ protest to those who do not know the reason behind the agitation. Disha Ravi’s role came under suspicion by Delhi Police after climate activist Thunberg tweeted a toolkit document which the police alleged had led to the January 26 violence in New Delhi.
On February 14, 2021, Disha Ravi was presented before a Delhi Court that remanded her five days of police custody. Disha Ravi broke down inside the courtroom and told the judge that she had edited only two lines and she wanted to support the farmers’ protest.
According to Delhi Police, Disha, along with the help of lawyer Nikita Jacob and engineer Shantanu Mallick, played key roles in the circulation of the document. The police also claim that the group worked with the pro-Khalistan outfit Poetic Justice Foundation.
In a press conference, the police said, “A team reached Mumbai and conducted searches at her (Nikita Jacob) residence on February 11. She and her associates Shantanu and Disha had created the document. The email account created by Shantanu is the owner of this document all others are its editors.”
Court Notice To 3 News Channels On Activist Disha Ravi’s Plea
Disha Ravi has moved the Delhi High Court seeking directions to the police to not leak investigation material, including alleged contents of her private chats, to the media. Arrested in connection with the “toolkit case” amid the ongoing farmers’ protest, she has also sought a ban on private TV channels from publishing contents of her WhatsApp conversations. The “toolkit”, which the police allege was aimed at tarnishing India’s image globally, surfaced after Swedish eco-warrior Greta Thunberg posted it inadvertently on Twitter before deleting it a few weeks ago. Based on it, the police have alleged a global conspiracy against the country, and arrested Ravi last Sunday from her residence. The government has denied any leaks from its side.
Rule of law not a concession given by State to citizens
Young activist Disha Ravi’s arrest in Bengaluru in the ‘toolkit case’ and the subsequent order of a Delhi court sending her to five-day police remand have raised certain serious questions which go much beyond the usual debate over free speech and right to dissent. The proceedings before a Duty Magistrate in New Delhi in this case have exposed procedural loopholes that go against the rule of law — considered to be a sine qua non in a democracy. Allegations are that the 22-year-old woman was not represented by a counsel of her choice at the time of the hearing. If true, it’s a serious procedural lapse. Ideally, she should have been allowed to have her own counsel. Article 22 of the Constitution insists that no person who is arrested shall be denied the right to consult and to be defended by a legal practitioner of his or her choice. Questions have also been raised over the Delhi Police not seeking transit remand to bring her to the national capital from Bengaluru. The world watched Ajmal Kasab killing innocent people in Mumbai in the 26/11 terror attacks. But instead of executing him summarily, the Indian judicial system gave him a proper trial. That displays our commitment to constitutional values and the rule of law. Article 21 says, ‘No person shall be deprived of his life or personal liberty except according to procedure established by law.’ In Maneka Gandhi’s case (1978), the top court said, ‘The procedure prescribed by law has to be fair, just and reasonable, not fanciful, oppressive or arbitrary.’ Notwithstanding the nature of the allegations, her rights as an accused or a detenu can’t be given the go-by. Also, procedural justice is equally important. The alleged lapses need to be looked into and corrected, if needed, by superior courts. The rule of law is not a concession given by the State to its citizens, and, therefore, it must not depend on the benevolence of the law enforcement agencies. Courts are expected to exercise checks on the misuse of powers by the executive — particularly those affecting the most cherished right to life and liberty guaranteed under Article 21 — to ensure that the rule of law is preserved and protected.
(Tribune, India)
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