One man’s terrorist is another man’s freedom fighter is the war cry of those who oppose the sedition law in India and this is very true because those who oppose the government and government policies may not always be anti-nationals as the BJP government would have us believe. The key words in the arcane sedition law which was enacted before the Indian Constitution was even conceptualized is exciting disaffection against a government established by law in India.
The issue arose after the Congress promised in its manifesto to scrap this obscure law if voted to power while the BJP accused the Congress of trying to protect jihadis or extremists who kill themselves and others in the name of Allah – in the hope of attaining Jannat or heaven. The charge assumes significance after cricketer-turned-politician Navjot Singh Siddhu visited Pakistan in August 2018 and is seen hugging Pakistan army chief General Qamar Javed Bajwa.
The judiciary has narrowed down the offence of sedition to mean that inciting violence against the state would bring a person within its ambit, which, like the Contempt of Courts Act, 1971, can be misused by those wielding power to punish inconvenient opponents.
The Law Commission of India (LCI) had recommended as far back as 1968 that an alleged seditionist should be either jailed for life if he tried to dismember the state or given a three-year-jail sentence. In 1971, the LCI again recommended that the maximum sentence for a seditionist should be seven years rigorous imprisonment while its 43rd report on the “National Security Bill” dealt with sedition as merely a reiteration of the revised section proposed by the 42nd report of 1971.
BJP has covered up its lynchings in the name of cow-protection, although there are no official statistics available on its misdeeds simply because our Indian Penal Code does not have a specific provision for such heinous crimes. On July 17, 2018, the supreme court condemned the epidemic of mob lynchings within the country, and asked Parliament to draft legislation to stop people from taking the law into their own hands.
Within hours of the media reporting this, a saffron-clad Swami Agnivesh who has fought for communal harmony was kicked and punched by the youth wing of the BJP in Jharkhand. If the Congress is accused by the BJP of being anti-national, the BJP is no better. Although it may claim otherwise, its divisive politics needs to be rejected as much as the corruption within the Congress.
The Congress also promised in its manifesto to amend the Armed Forces Special Powers Act and the Disturbed Areas Act to balance national security against human rights which is laudable given the fact that there have been alleged excesses committed by the Indian Army such as the one by Major Leetul Gogoi.
In June 2018, Army chief Gen Bipin Rawat conferred a commendation on Gogoi for saving many lives after the latter tied an unarmed man to a jeep while leading a convoy of election commission staff through the tense streets of Budgam in Kashmir. This was a gross violation of human rights but the pro-BJP brigade has branded those who criticized Major Gogoi as anti-nationals.
The question here is does criticizing our Army or the BJP government amount to sedition or permit the jingoists in the country to brand their critics as anti-national? There are some gross cases where there can be no doubt that the views expressed by those in power are anti-national without being seditious.
The latest example is that of former Jammu and Kashmir chief minister Omar Abdullah who created a flutter on Twitter when he tweeted his National Conference Party would work towards restoring the post of “President” and “Prime Minister” in Jammu and Kashmir, if voted to power which under Article 370 of the Indian Constitution, needs a special resolution in their assembly before laws operating throughout India can be extended to that troubled state.
Cricketer Gautam Gambhir responded by saying Omar Abdullah needed sleep and a strong cup of coffee to bring him to his senses because having a separate President and Prime Minister for Jammu and Kashmir was as fantastic as walking on oceans or pigs flying in the air. And if Omar Abdullah still did not understand the implications of what he had said, he should be given a Pakistani passport.
The irrepressible Omar Abdullah replied that Gautam Gambhir should have stuck to tweeting about the IPL Premier League rather than venture into a subject he knew nothing about. The point here is that former chief ministers like Omar Abdullah, Mehbooba Mufti Syed and Farooq Abdullah’s statements rouse the ire of patriotic Indians for whom Jammu and Kashmir has always been an integral part of India and will continue to remain so.
The law of sedition has been thoroughly studied, dissected and analyzed by successive Law Commissions of India (LCIs) in 1968, 1971 and 2018- the only tragedy being the Congress and BJP governments have not implemented what has been recommended. Although sedition criminalizes speech which incites disaffection towards a lawfully-established government, the vital test is to see whether there is a tendency to incite violence against any government which is synonymous with the state.
The LCI’s first report of 1968 recognized there were anomalous situations where certain offences were made punishable either with life imprisonment or rigorous or simple imprisonment which may extend to three years but not more. Going by this yardstick, there can be no doubt that Omar Abdullah would fit into this category because by saying the National Conference would set up a separate Prime Minister and President for Jammu and Kashmir, he appears to be indirectly suggesting Jammu and Kashmir should secede from India.
Coming after the Pulwama terror attack on February 14, when 40 jawans were martyred, there is no doubt that such irresponsible statements must evoke retribution from the state. On the other hand, former chief minister Farroq Abdullah doubted that 40 jawans were killed in the terror attack which again stoked a controversy. Both the father-and-son duo of Farooq and Omar Abdullah are exercising their right to freedom of speech and expression which is a foundation stone of a thriving democracy.
However, by promising a separate Prime Minister and President of Jammu and Kashmir which is an integral part of India, the younger Abdullah is crossing the threshold of permitted speech and is advocating the secession of the troubled state. On the other hand, by questioning whether 40 jawans were really killed in the terror attack on our jawans on February 14, the 81-year-old father is doubting the official statement put out by the Army but not advocating the disintegration of the country.
Olav Albuquerque holds a PhD in Media Law. He is a journalist-cum-lawyer of the Bombay High Court.