– By Shraddha and Yana Gupta
(This article is the second part of a two-part series)
Introduction
India is a democratic nation and recognition of dissent remains a sine qua non of a true and a living democracy. However, grave misreading of law coupled with dubious intents on the part of the Indian government has led to to not only violation of its own constitutional commitments but also its international obligations. This article gives an account of the reaction of the international community towards this conundrum and the paragons of change available before us to improve the situation.
International Reaction and Stand
Major international organizations have at some point in relation to Indian government’s handling of one protest or other, criticized the use of draconian laws to stifle dissent and the way protestors are treated. Human Rights Watch in its summary of Events of 2020, India, heavily condemned that government and alleged violation of the rights of those critical of the government or their policies, especially those dissenters that hailed from minority groups for example – Muslims, by using the Public Safety Act.Civicus, a global alliance of civil society organizations and activists dedicated to strengthening citizen action and civil society throughout the world, added India to its ‘Monitor Watchlist’ on account of rapid decline in respect for civic space during 2019. It denounced violence against protesters, large-scale detention of activists and intellectuals, internet-shutdowns to “maintain law and order” etc. The European Parliament passed an urgency resolution on India’s Citizenship Amendment Act, following which the Chair of European Parliamentary’s subcommittee on Human Rights raised multiple concerns over “rule of law deterioration” in India, including arrest of human rights defenders, journalists, and peaceful critics.”UN experts urged the Indian government to release the dissenter and the arrests seemed to be “clearly designed to send a chilling message to India’s vibrant civil society that criticism of government policies will not be tolerated.” The UN High Commissioner for Human Rights Michelle Bachelet raised concerns over arrests of activists and use of vaguely defined laws to “punish NGOs for human rights reporting and advocacy that the authorities perceive as critical in nature.”Amnesty International highlighted how the Indian government prioritized “continued intimidation, harassment and imprisonment of those who exercise their right to free speech and assembly in order to stand up for the rights of others,by using repressive laws like the Unlawful Activities (Prevention) Act (UAPA), Sedition and the National Security Act (NSA)” even during the Coronavirus pandemic. Amnesty cited the case of SafooraZargar.
In SafooraZargar v. State, Safoora who was a research scholar from Jamia Milia Islamia University was arrested by the Delhi Police on charges of alleged involvement with anti-CAA riots. She was soon granted bail but was again arrested by the police on additional charges of conspiracy and was sent to Tihar Jail. During the time of her arrest, Safoora was three month pregnant and was put in an overcrowded jail during times of communicable pandemic of coronavirus and later shifted to solitary confinement. She was kept in deplorable conditions and her bails were repeatedly denied until 23rd June , by which time she was 6 months pregnant.
Use of repressive laws like UAPA, Sedition and NSA in India, which were formulated a century back by the Britishers to control their colonial subjects, have been repeatedly critiqued. It has been said that these laws not only violate natural rights and guarantees under Indian criminal system but also International customs, treaties and human right standards. The International Covenant on Civil and Political Rights (ICCPR), to which India is a party, states – “it should not be the general rule that persons awaiting trial shall be detained in custody,” and “pretrial detention should not be mandatory for all defendants charged with a particular crime without regard for individual circumstances.” Such laws have eroded human rights by subjecting the citizens to arbitrary arrest and custody and hence violate the mandate of Universal Declaration of Human Rights.Mrinal Sharma, Policy Advisor to Amnesty International researched that the International Law stated by the government to promote UAPA , is in fact contradictory. The basic definition of ‘terrorist act’ in UAPA is different from what is stated by United Nations Special Rapporteur on the Protection of Human Rights and Fundamental Freedoms while Countering Terrorism. These laws also violate the principles of ‘Legal Certainty’ and ‘Right to Privacy.’
Despite various contradictions and violations, India continues to share such laws with countries like Saudi Arabia, Iran, Sudan, Turkey etc. While other countries like USA and Australia have either struck down various provisions in laws like sedition or have changed the wording to “urging violence” (in case of Australia) due to its archaic and draconian roots and arbitrariness and ones like Germany have included it due to post-Nazi sentiments, there is no apparent reason why a democratic country like India holds on to such laws with full vigour and criminal jurisdiction. Canada does retain sedition laws, but they rarely encroach on the freedom of speech and other liberal freedoms and are rarely enforced, after the 20th century, there has been no new case of sedition.New Zealand struck down sedition as a crime in 2007 and similarly sedition act has been declared unconstitutional in Indonesia.While other countries have moved on to secure the liberties of its citizens, India still holds dear the concept of policing.
Inspiration for Reform
The archaic laws employed to cast a chilling effect on dissent urgently need reform to tweak the criminal justice system to conform to contemporary times. The following propositions and recommendations serve as models for doing so. The 21st Law Commission had published a consultation paper in August, 2018 on the prospect of either re-defining or repealing the sedition law contained in Section 124A of the I.P.C. recognizing that “for merely expressing a thought that is not in consonance with the policy of the government of the day, a person should not be charged for sedition. If the country is not open to positive criticism, there lies little difference between pre- and post-independence laws.”The I.P.C. is a colonial-era law and so is Section 124A. Since around 1863, only those who attempted to incite violence against the government were penalized in England. Also, in England sedition was considered a “misdemeanor” and a “bailable and non-cognizable” offense. However, in India, according to the I.P.C., even those who attempted to excite mere disaffection against the government could be held guilty of sedition and it was made a non-bailable and cognizable offence in 1973. The law was abolished in Britain in 2009 but however this has not persuaded India to review its sedition law, a menacing effect of the colonial legacy.A joint consultation paper was published by the Law Commission in 2014 which acknowledged that criminal defamation laws violated international norms, are prone to be exploited to shun dissent and superfluous as defamatory acts that may harm public order are covered by Sections 124, 153 and 153A. It advocated decriminalization of dissent to bring the I.P.C. at par with Article 19(1)(a) and (2) so that penal laws are not used to cock a snook at legitimate criticism. With respect to the status of contempt of court provisions across nations, “scandalizing” the judiciary as a form of contempt of court has been abolished in England. British Judge Lord Denning had observed in a case that contempt of court cases stand against the principle that one cannot be a judge in their own case.In the United States of America, Justice Hugo Black proscribed silencing of public opinion in the pretext of contempt of court. In Canada also, a rather lenient policy is followed wherein courts are free to be censured unless an imminent danger to administration of justice exists.
The I.P.C. came into being in the colonial times. A number of amendments have been made to it but they prove insufficient in laying down a vigorous criminal administration system appropriate for the contemporary era. It is also unfortunate that such anachronous principles have found a place in special legislations based on the code. Hence,the I.P.C. and other laws employed to stifle dissent should be reviewed in light of the social, political, cultural and technological changes that have taken place in the society. The language of the laws should be made unambiguous to minimize their misuse through misinterpretation. In modern times, the more effortless it is to express one’s opinion through the internet, the more difficult it has become to find the true perpetrator but that does not validate penalization of an innocent. In the end it is essential to recognize that we are a democratic nation in the 74th year of its independence and the public institutions must command respect and confidence of the citizenry which is established through open discussions on their conduct.
The authors are currently reading Law in NLU Delhi and Jodhpur respectively.