Friday, April 10, 2015

Najib's Fear of sedition must not hit freedom of speech crying need to fix bad legislation

Sedition law is against spirit of democracy Fear of sedition must not hit freedom of speech
As long as we have uneducated , ignorant and biased Inspector-General of Police (IGP)  ,and  , freedom of speech of the common man will be suppressed. Rogues and rascals can say or do anything against the Constitution and get away with it ,but not those who express their thoughts without going against what has been enshrined in the Constitution.  observed that freedom of speech should not suffer because of a threat of invoking sedition against an individual for expressing his views. a draft of guidelines to be issued to the police saying it will bring clarity in investigations but added that "while it is necessary that innocents should be protected, the guidelines should not fetter the police''.  Can  Najib take care of the apprehension that an individual may suffer because of abuse of power by the investigating agency. if there is no safeguard, power can be misused anytime.,If adequate safeguards are not there, it may prevent people from not expressing themselves. Freedom of speech should not suffer because of the threat of invocation of the section. a person is entitled to bail, that people would not like to get into the hassle and would rather not speak if the government is going to book them for sedition. lack of safeguards cannot have a gagging effect. "As a country, we have spoken when we were not independent... while sedition can be invoked if it leads to violence, safeguards should be taken that the violence is against the state and not against the individual who is charged with violence. there is no data available that "it has become a habit'' to register sedition cases and also no case is made out that "in general it caused fear in minds of people not to express themselves
the words "annoyance" and "inconvenience" to apply to any online content. Without doubt this section was draconian and absolutely against online freedom of speech, not just in theory but in actual practice as well. There had already been arrests in respect of this Section and the fear of legal harassment cast a big cloud over the cherished values of freedom of expression. No civilized nation should be sanctioned by law to arrest a citizen merely on the ground of annoying or inconveniencing somebody else with their expression online. There are always remedies against the well-defined exceptions to freedom of speech as per the Constitution.Of course, I do not buy into simplistic sedition charges, but what a silly comparison. In the hands of certain forces, those documents can mean different things. 

Laws not only set boundaries within which people may act, they also create incentives to act or refrain from doing so. Badly drafted laws can have unintended consequences, which make them counterproductive despite noble intentions. In this context, Prime Minister Najib Razak should pay heed to the plaintive cry of Malaysians that has repeatedly asked for changes in  the Prevention of Terrorism Act 2015 (Pota) and the most draconian provision of Sedition Act The amendments to the Sedition Act extend the maximum jail term to 20 years from the current three years and establish a minimum three-year jail term for certain case the definition of "sedition" remains open to wide interpretation and abuse by the government, which has a history of using security laws to stifle dissent.

Sedition is said to have occurred when any attempt is made to bring the government of the day into disaffection . Mohandas Gandhi was convicted of sedition by the British Imperial government in 1922. Arguing his own case, Gandhi told the judge that he had no affection for the British government and, moreover, he felt it was his duty to inform his fellow citizens as to why he had no affection for it. While convicting Gandhi, the British judge felt it necessary to apologize to Gandhi for his act, to which he was bound by his duty as a judge.
Such stories are part of the folklore of sedition, and create the impression that sedition is about well-known or relatively resourceful people standing up to a bumbling state power. Nothing could be further from the truth. The most important lesson i learnt in jail was that there are vast numbers of people accused of sedition and incarcerated for this reason. To take just one example, several hundred very ordinary men and women participating in the peaceful anti-nuclear agitation in Kudankulam have been charged with sedition.

The state today stands guarantor, under the doctrine of eminent domain, to a country-wide process of expropriation of common property resources -- land, water, forest, minerals and traditional knowledge such as knowledge of biodiversity. Communities, whose survival is dependent on their access to common property resources, find their survival threatened by this process of expropriation. Resisting this process becomes key to the survival of these communities , and the law of sedition is one of the important resources deployed by the state in order to suppress this entirely legitimate resistance. Communities cannot be expected to acquiesce in their own extinction, but the state seems perfectly prepared to deploy its resources, both juridical and military, in order to ensure that its writ should run.

The application of sedition is also contrary to the spirit of a democratic polity. After all, the process of building up political alternatives has to be based on holding -- and advocating -- views that are contrary to those held by the current holders of power. Sedition serves the power holder very well, because any heterodox opinion can promptly be limited by being safely put away. Human rights workers and their organizations across the country have come together to press for repeal of the sedition law and other similar laws. They are jointly engaged in a signature campaign, and a series of public meetings, to petition Parliament for the prompt repeal of these archaic and antidemocratic legal formulations, which constitute a real danger to the development of a genuinely democratic polity.

What is sedition?
As per the Indian law, sedition is any form of speech, action, writing that incites hatred against the established order and harms the systematic peace of the country. Seditious words written against the ruling government and authority is called ' seditious libel'.
Indian constitution's chapter VI deals with offences against the state and sedition is charged under Section 124A of the IPC. The punishment includes imprisonment for life and added fines. Imprisonment can be for life-time or for three years based on the nature of seditious charges. 
Sedition as defined in the IPC is, "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 with imprisonment for life, to which fine may be added, or with imprisonment which may extend to three years, to which fine may be added, or with fine."     
But, Article 19(1)(a) of the Indian Constitution says, all citizens have the right to freedom of speech and expression. This right to freedom of speech and expression incorporates protection for austerely censuring existing government structures, policies, and administrative schemes, coupled with protection for suggesting and recommending the development of other system. Article 19 (2) of Indian Constitution says that, every citizen of the country  holds the  right to air his or her opinion through print or electronic media with restrictions imposed.

How did it all start? 
Many Indians in the past have been charged under this act. Prominent freedom fighters charged with sedition law include Bal Gangadhar Tilak and Mahatma Gandhi. Section 124A was introduced by the British colonial government in 1870 when it felt the need for a specific section to deal with the offence.

Students charged with sedition, a poll-gimmick say experts: 
Students who cheered for Pakistan during the Asia Cup were charged under sedition. This resulted in CM of Jammu and Kashmir, Omar Abdullah fuming and reaching out to Mulayam Singh Yadav and Akhilesh Yadav, the CM of Uttar Pradesh instantly. He also stated that some of these students were recipients of President's scholarship and a serious introspection was needed. 
Supporting this point, writer and noted lawyer Saurav Dutta says, "The elections act as catalyst in such situations and the very same students who are offered scholarship will end picking up arms after such a treatment. The whole purpose of providing aid to help students get educated is defeated in the long-run". 
He also adds, "There is grey area in implementation of sedition law in India and citizens are expected to refrain from commenting on governance. The law is misused mostly and people won't be able to criticise authority in the long-run which is a failure of democracy". 
"If a person accused of sedition is ultimately proved not guilty of that charge, the process of going through the charge itself is so arduous for any person. The process really becomes the punishment. Sedition offence was inserted in IPC during the British era. The British wanted to muzzle Indians who would revolt against the British rule. The meaning of sedition then was obviously very broad. If our legislature wishes that sedition continues to be an offence in IPC, its definition should be narrowed down so that the discretion with police on what can attract a charge of sedition is extremely limited", says lawyer Karthikeya Tanna. 
Advocate Shruti Desai adds, "We have good drafted laws, but as far as Sedition is concerned, it requires clarification. The landmark judgment of Supreme Court in Kedar Nath case was a good judgement but the law's application as per case-by-case has changed over time". 
On the question of students supporting Pakistan team, Tanna added, "Even though the act of supporting the Pakistan team can be worthy of criticism and can be frowned upon, particularly if made in reckless disregard of the violence it could have provoked, a charge of sedition isn't fair". 
As per experts, the sedition law has been amended numerous times and needs to be either updated keeping in mind the current global context or needs to be completely discarded. 
Explaining why supporting Pakistan drew such response from the state, some experts concluded that any reaction that is nationalistic in approach is determined by relationships shared by state and country with the opponent country. Hence, if Indians support Australia, it is not seditious but if India supports Pakistan, it is termed seditious. 
The bottom-line of the case is that, if the state does not make amends with the charges filed, the repercussions will be negative for students. The Lok Sabha elections are just a month away and major players are trying to garner votes under any pretext. "Mulayam Singh Yadav was responsible for Muzzafarnagar riots and now this crisis. The irony in the case is that, political parties have to cater to their target groups as well as balance it out with nationalistic ideals. Elections come and go but state must think about these students lives" added Dutta.

Landmark cases and glaring examples: 
Maneka Gandhi versus Union of India: 
In this case, the Apex Court held that the freedom of speech and expression is not confined to geographical limitations and it carries with it the right of a citizen to gather information and to exchange thought with others not only in India but abroad too.
As per the judgement, criticising and drawing general opinion against policies and governmental decisions within a reasonable limit that does not incite people to rebel is consistent with freedom of speech and expression. 
Arundhati Roy: 
Arundhati Roy and others were charged under sections 124A (sedition), 153A (promoting enmity between classes), 153B (imputations, assertions prejudicial to national integration), 504 (insult intended to provoke breach of peace) and 505 (false statement, rumour circulated with intent to cause mutiny or offence against public peace when she spoke at "Azadi-the Only Way" ?conference in Jammu and Kashmir. 
The filing of the FIR came following a directive from a local court on a petition filed by Sushil Pandit who alleged that Geelani and Roy made anti-India speeches at a conference on a senior police official said. 
Roy and Geelani had shared the dais with Maoist sympathiser Vara Vara and others. Geelani was heckled by the audience.
Aseem Trivedi: 
In 2011, a nation wide anti corruption movement India Against Corruption gathered pace in the leadership of a veteran Gandhian Anna Hazare demanding Jan Lokpal Bill. Aseem Trivedi joined the crusade and started a cartoon based campaign, Cartoons Against Corruption to support the movement with his art. He launched a website consisting of his sharp anti corruption cartoons targeting corrupt system and the politicos. He displayed his cartoons in the MMRDA ground, Mumbai during the hunger strike of Anna Hazare.
But, his website was suspended by Crime Branch, Mumbai on the first day of the protest, when he received an email from BigRock, the domain name registrar with which his website was registered, saying, "We have received a complaint from Crime Branch, Mumbai against domain name '' for displaying objectionable pictures and texts related to flag and emblem of India. Hence we have suspended the domain name and its associated services."
Binayak Sen: 
Binayak Sen was accused of sedition by the Chhattisgarh government for allegedly supporting the outlawed Naxals and thereby violating the provisions of the Chhattisgarh special public security act (CSPSA)and the Unlawful Activities (Prevention) Act 1967. He was later acquitted due to lack of evidence. 
Kedar Nath Singh:
 The speech by Kedar Nath Singh was, "To-day the dogs of the C.I.D are loitering round Barauni. Many official dogs are sitting even in this meeting. The people of India drove out the Britishers from this country and elected these Congress goondas to the gaddi and seated them on it. To-day these Congress goondas are sitting on the gaddi due to mistake of the people. When we drove out the Britishers, we shall strike and turn out these Congress goondas as well". 
After recording a substantial volume of oral evidence, the learned Trial Magistrate convicted the accused person both under S.124A and 505-(b) of the Indian Penal Code, and sentenced him to undergo rigorous imprisonment for one year.
The convicted persons preferred an appeal to the High Court of Judicature at Patna, the Court upheld the convictions and the sentence and dismissed the appeal. Finally it was held that, Section 124A of the Indian Penal Code which makes sedition an offence is constitutionally valid.
Though the section imposes restrictions on the fundamental freedom of speech and expression, the restrictions are in the interest of public order and are within the limit of permissible legislative interference with the fundamental right.

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