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Free speech and sedition : the stained relationship in light of Disha Ravi’s case

May 17, 2021

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This article is written by Pranav Sethi, from SVKM NMIMS School of law Navi Mumbai. This article analyzes free speech and sedition in the context of the stained relationship in light of Disha Ravi’s case.

Table of Contents

Introduction

“Freedom of speech is a principal pillar of a free government;

When this support is taken away,

The constitution of a free society is dissolved,

and tyranny is erected on its ruins.”

-Benjamin Franklin

The first prerequisite of democracy is the right to speak freely. It is said that freedom of expression is the mother of all the other liberties since it holds a prominent and powerful place in the hierarchy of liberty. The privilege to speak freely one’s personal beliefs and opinions through words, writing, publishing, images, or any other means is known as freedom of speech and expression. The right to public expression is universally recognized in contemporary days as the cornerstone of a free society, and it must be protected at all times.

The free exchange of ideas in a public discussion is the first concept of a democratic society. The freedom to express one’s opinions and thoughts without threat, and particularly without fear of repercussions, is crucial to the growth of a nation and, eventually, a state. It is among the most significant fundamental freedoms that are protected from state repression or control.

Free speech and the Constitution of India

When it comes to India, freedom of expression features prominently. The value of freedom of speech and expression is shown by the idea that the preamble of the constitution guarantees all people the right to freedom of thinking, expression, belief, religion, and worship, among other things. The Preamble of the Constitution establishes the constitutional importance of freedom of speech, which is transformed into a fundamental and human right in Article 19(1)(a) as “freedom of speech and expression.”

The main elements of the right to freedom of speech and expression as under:

This privilege is only applicable to Indian citizens, not to foreign nationals.
Article 19(1)(a) of the Constitution guarantees the right to express one’s opinions and views on any subject by any means, including language, writing, publishing, pictures, films, and movies.
This right is not universal, and it enables the government to implement laws that enforce fair controls in the interests of India’s sovereignty and dignity, protection, peaceful ties with foreign nations, civil security, decency, and ethics, as well as contempt of court, defamation, and accusation of an offence.
This limitation on an individual citizen’s freedom of expression may well be enforced by the state’s intervention as well as its inaction. As a result, if the government fails to provide all of its people with the constitutional right to freedom of speech and expression, it would be in breach of Article 19(1)(a).

Sedition and the Constitution of India

“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 punishable with Life Imprisonment”.

Section 124-A of the IPC deals with seditious conduct. However, the law of sedition is only mentioned briefly in this section. It covers the offences that are covered by the statute, but it does not include a clear description of the word “sedition”. Conduct or speech that results in mutiny against the authority of the state, is what the word “sedition” means. Section 124A of the Indian Penal Code, 1860, is considered a reasonable limitation on freedom of expression. Thomas Macaulay drafted it and it was first introduced in 1870.

“Sedition may be described as conduct which has, either as its object or as its natural consequence, the unlawful show of discontent with the Government or with the established order of society,” Stephen wrote in his Commentaries on the Laws of England, 21st Edition, volume IV, pages 141-142. Seditious behavior may take the form of sentences, actions, or writing.”

What are the Seditious activities?

What constitutes ‘sedition’ in India is a contentious issue. According to the Indian Penal Code, an act must contain the following elements to be considered “seditious”:

Any words, whether written or spoken, as well as signs such as placards/posters (visible representation),
must incite hate, disdain, or dissatisfaction with the Indian government,
resulting in “imminent violence” or public disorder.

According to the Court’s reading of Section 124-A of the Indian Penal Code, 1860, the above acts are considered “seditious”:

Groups raising slogans against the government, such as “Khalistan Zindabad.” Individuals who raised slogans once or twice were not considered seditious.
To be deemed seditious, a speaker’s speech must cause violence or public disorder. Following cases have gone on to expand the definition to include “incitement to imminent violence.”
Any published work that incites public disturbance and abuse.

Overview of Disha Ravi’s case

The nation’s farmer movements have not only influenced the nation, but have also ignited international interest and worry as evidenced by numerous tweets from world-acclaimed personalities such as Rihanna, Greta Thunberg, and others. Despite the criticism that these tweets got, the fact that they raised the need to resolve these demonstrations without understanding the ground-level scenario of these protests was something that they brought up. Another event finally introduced to the long list of protest-related controversies.

The Toolkit case

The contentious toolkit has intrigued Indian interest, as has a tweet by well-known Swedish campaigner Greta Thunberg, in which she attempted to provide a connection to the pro-farmers movement by using the toolkit. Not only that, but the post also included a folder detailing urgent strategic plans, plans to create a social media storm and plans to stage protests outside Indian embassies. All was orchestrated solely to help the farmer’s protest. As soon as the connection was shared, it was met with a lot of criticism from those who claimed it as definite evidence of the Khalistani plot against India. Even though she removed the tweet a few minutes early she re-posted it with a ‘modified’ portion of the toolkit and a link to it.

Key controversy

Thunberg’s tweet on the 4th of February attracted media attention. Disha Ravi, a climate activist, was suspected of conspiring with a pro-Khalistan party to generate such toolkits, and the Delhi Police filed an FIR against her and two others (also activists) with a non-bailable warrant claiming that they have been suspected of conspiring with a pro-Khalistan group to create such toolkits, with the ultimate aim of “defaming India around the globe.”

The Police department didn’t seem to stop at filing a complaint against the toolkit’s developers; they also reached so far as to ask Google for the email accounts of everyone who was involved in the publication and processing of the documents that were posted to Google Docs. Since then, the Delhi police have arrested Disha Ravi and conducted interrogations of other activists and lawyers, including Nikita Jacob. The Delhi police have also filed an FIR against a few others who are suspected of making and disseminating the toolkit on the same day, February 4th.

Poetic Justice Foundation, a pro-Khalistani group, is reportedly one of the major parties behind the toolkit plot for the foreign witch hunt against India, according to one of the allegations made by the Delhi Police. The Delhi police have also sought information from Google and other social media experts to track down the perpetrators’ e-mail addresses, URLs, and other details.

The court representation and Disha Ravi’s arrest

Despite multiple raids and searches around the country, Delhi Police took a step closer to uncovering the plot on Saturday when they made an arrest. Disha Ravi, a young climate activist, was arrested for working with a pro-Khalistani party to spread anti-Khalistan sentiment by promoting the use of a toolkit.

Disha Ravi was the primary author and writer of the paper they had retrieved, kept under the title “toolkit google doc,” which facilitated or performed a crucial function in the development and transmission of the toolkits, making her the key conspirator, according to the documents.

Owing to the disappearance of her lawyers from the case, Disha Ravi was summoned to the Patiala House in Delhi for five-day police remand. On the one hand, her legal counsel claimed that they were not informed of the court in which she was presented and therefore were unable to follow the trial; on the other hand, the Delhi police claimed that Disha’s legal team intentionally missed the hearing for her to receive judicial custody rather than police remand.

The observation by the court of law

Dharmender Rana, an additional sessions judge, set to release the 22-year-old activist on a personal bond of one lakh rupees and two sureties in the same amount. She was detained in Bengaluru for illegally altering a social media toolkit about the current farmer protests against three farm laws:

The court issued the bail, citing “scarce” and “sketchy” proof to substantiate Ravi’s sedition charges.
It stated that citizens could not be imprisoned simply for opposing government policies.
Disha Ravi had no ties to pro-Khalistan activist groups such as Poetic Justice Foundation (PJF) and Sikhs for Justice, according to the judge, and there was no “iota” of evidence connecting her to the violent acts that erupted in Delhi on Republic Day.
The judge said the 22-year-old was with absolutely blemish-free criminal antecedents and has firm roots in the society.
The court also said the call for any kind of violence was conspicuously absent from the toolkit, and no evidence was on record to suggest Ravi subscribed to secessionist ideas.
Citizens, according to the judge, are the government’s conscience-keepers in any free democracy.
He went on to say that they cannot be imprisoned merely because they disagree with government policies.
The court rejected the police’s argument and said it could not be presumed on “surmises or conjectures” that Ravi supported secessionist tendencies or violence, simply because she shared a platform with people who gathered to oppose the farm laws.
It added a citizen has the fundamental rights to use the best means of imparting and receiving communication, as long as the same is permissible under the law and as such have access to the audience abroad.

The reason behind the strained relationship between free speech and sedition

Abusive nature of the sedition law in India

Several people have already died as a result of the abuse of the sedition rule. This is expressed in the number of arrests of those who have been convicted. Since the suspects are difficult to trace, 9 percent of the sedition trials lingering through past years and reported in 2019 were closed. Just 17% of the cases resulted in charges being brought. In 2019, just 3.3 percent of such cases resulted in a conviction. The fact that 96 percent of sedition cases against 405 people for challenging representatives and governments were recorded, after 2014 shows that our government has been abusing this law since 2014. Ever since the rate of sedition lawsuits reported has increased by 28 percent from subsequent years About 65 percent of the 10,938 people charged with sedition after 2010 have been linked to the current administration. As per the study, Crime in India by the National Crime Records Bureau, 93 cases of sedition were filed in 2019, up from 35 in 2016.

Despite an increasing worldwide agreement on the oppressive existence of sedition laws, they are used aggressively in India to curtail the right to free speech. The Delhi Police detained young activists Kanhaiya Kumar, Umar Khalid, and Anirban Bhattacharya in January 2019 for shouting “anti-national slogans” at a rally at Jawaharlal Nehru University in New Delhi in 2016. They were convicted under the now-famous Section 124A of the Indian Penal Code, 1860.

Ironically, the difference between both “nation” and “government” has distorted to the point where any scrutiny of government functioning, regardless of validity, is viewed as anti-national, disloyal, and unfaithful to the motherland. Constructive criticism of government policies, as well as questioning the efficacy of various State initiatives, should be viewed as an affirmation of love for the country and a consideration for how it is advancing.

Case laws highlighting the strained relationship

Kedar Nath v. the State of Bihar

In this case, the Supreme Court had to recognize the validity of the colonial rule on sedition, Section 124A IPC, about the legally established constitutional right to free speech through Article 19 of the Constitution during the first period in the recorded history of independent India. Furthermore, the Hon’ble Supreme Court was asked to rule on the constitutional validity of Sections 124A and Section 505 of the Indian Penal Code, with specific respect to maintaining state protection and civil security.

Appellant Kedar Nath Singh, a member of the Forward Communist Party in Bihar, used derogatory language against officers of the C.I.D. and the Indian National Congress, referring to them as “dogs” and “Goondas,” respectively. He went on to say how his organization has always claimed in the coming revolution that would consume the capitalists, zamindars, and Congress leaders of India in flames, reducing them to remnants and establishing a regime of the oppressed and underprivileged people of India to ashes. He also went after Vinobha Bhave, describing him as a Congress law enforcement agent who was attempting to redistribute land in a fictitious and corrupt manner.

As a result, the informed trial Magistrate found Kedar Nath Singh guilty of sedition and public nuisance under Sections 124A and 505(b) of the Indian Penal Code and convicted him to one year of solitary confinement.

On this basis, the sentenced persons filed an appeal with the High Court of Judicature in Patna, where Justice Naqui Imam and a single judge bench confirmed the sentence, and the appeal was dismissed. The informed Judge noted in his decision that the accusation on the appellant was little more than a smear campaign against the government and that the expression itself was unquestionably seditious and full of violent actions. It is not a speech in which all of the policies were criticized.

On review, the case was referred to a Supreme Court Division Bench, but since the issue involved the constitutional validity of Sections 124-A and section 505 of the Indian Penal Code, it was referred to a Constitution bench.

The 2 most important issues were raised:

In the context of Article 19(1)(a) read with Article 19(2) of the Constitution, are Sections 124A and Section 505 of the Indian Penal Code ultra vires?
The motive or propensity to cause disorder, disruption of law and order, or incitement to violence must all be present for sedition to be committed.

In this instance, the Court ruled that, in light of Article 19(2), Article 124A violates the Indian Constitution, while maintaining the constraint as required for improving and protecting the country’s protection and dignity. However, the Court stated that the enforcement of the contested provision of the Indian Penal Code shall be confined to actions including an intention or inclination to commit hatred by disrupting public order and state law and order. Following that, the criminal appeal was dropped, and the perpetrator was released because his claims were not considered to be seditious.

Aseem Trivedi v. State Of Maharashtra

In this case, in 2010, Aseem Trivedi, a divisive political satirist and campaigner renowned for his anti-corruption movement, Cartoons Against Injustice, was detained on grounds of sedition The report, moved by Amit Katarnayea, a legal counsel for a Mumbai-based NGO, opposes Trivedi’s show of “insulting and derogatory” illustrations depicting the Parliament as a chamber pot and the Nationalist Symbol in a negative light by replacing the lions with ferocious wolves, as well as uploading them on social media, during an Anna Hazare protest against corruption.

India Against Corruption (IAC) representatives alleged that the cases were brought targeting Trivedi by the government because it was enraged by their anti-corruption campaign. “The case has been registered simply because Aseem participated in the BKC protest organized by Anna Hazare and raised his voice against corruption,” said Mayank Gandhi of the IAC. As a result, the government is attempting to stifle his opposition in this way. Trivedi’s case raised significant concerns about freedom of speech and expression in the world, as a young man was arrested for mocking the country’s fraudulent practices. Understandably, some people would find his cartoon objectionable or in questionable taste, but punishing someone to live in prison for doing so is excessive.

Shreya Singhal v. Union of India

This case is significant in Indian law since it struck down Section 66A of the Information Technology Act, 2000, which was found to be in contravention of Article 19(1) of the Indian Constitution, which grants all people the right to freedom of speech and expression. Shreya Singhal, a law student at the time, filed a petition in 2012 seeking an amendment to Section 66A, which was prompted by the detention of two young girls in Mumbai for a Facebook post critical of the city’s closure following the death of Shiv Sena leader Bal Thackeray; one of them posted the comment, while the other simply “liked” it.

The court’s decision that an individual could not be prosecuted for sedition unless their speech, no matter how “unpopular,” offensive, or unacceptable, had a proven connection to any provocation of violence or disturbance of public order is crucial. The Supreme Court made a distinction between “advocacy” and “incitement,” concluding that only the latter is criminally punishable. The Supreme Court decision came three years after the petition was filed in 2015, but Shreya was undeterred.

Conclusion

The weaponization of sedition has always been a trend; thanks to the third pillar of our constitution that is the judiciary which understands citizens’ rights and duties. Judges also believe in the right to liberty and the provision that an individual should only be refused bail in extreme cases. Disha Ravi’s arrest has been seen as illegitimate. A government genuinely concerned about its international reputation will aim to fix the discrepancy in solidarity and excess in oppression which is growing further noticeable with each passing day.