“A citizen’s right to liberty is sacrosanct and non-negotiable. It is a fundamental right granted under the Constitution and can’t be infringed upon by the state.”
Justice Indira Banerjee used these inspiring words on Tuesday while setting free Prashant Kanojia, a journalist who had been arrested for tweeting a fairly innocuous news clip in which a woman spoke of handing over a marriage proposal to the formally celibate Yogi Adityanath, Chief Minister of Uttar Pradesh. Yet, the Supreme Court’s decision in the Kanojia case will do nothing to prevent police across states from victimising citizens whose perfectly legal speech acts happen to offend powerful politicians.
Consider that the Uttar Pradesh police used Section 500 of the Indian Penal Code, which deals with criminal defamation, without a complaint from the person supposedly defamed. Consider that Kanojia was arrested (abducted might be a more accurate description) in Delhi by Uttar Pradesh policemen in plain clothes without the Delhi police being consulted. Consider that an Uttar Pradesh magistrate ignored these obvious breaches of procedure and remanded the journalist to custody for an extended period. These serious lapses warrant investigation and punishment, but instead the Supreme Court contented itself with high-minded sentiments.
As it turns out, Kanojia wasn’t the only person arrested in connection with the video. The Uttar Pradesh police have also arrested Anuj Shukla and Ishika Singh of Nation Live channel for broadcasting the clip, in addition to two other men for sharing a spoof wedding invitation related to the woman’s statement on social media, The Print reported. Three others were booked on similar grounds, the publication said.
The same vacation bench of the Supreme Court came off even worse in the case of Priyanka Sharma, a Bharatiya Janata Party activist arrested for posting an amusing composited image of Bengal’s Chief Minister Mamata Banerjee. Among the charges against Sharma was one invoking Section 67A of the IPC, which deals with transmitting sexually explicit images, though there was no hint of anything sexual in the meme she shared.
While freeing Sharma, the bench instructed her to apologise to Mamata Banerjee, making one wonder if it was a court dedicated to legal issues or a khap panchayat interested in resolving disputes and soothing conflicts. Luckily, the judges rescinded that order, but some damage to the court’s reputation had already been done. As in the Kanojia case, no government officials were harmed as a result of the ruling.
Defamation and sedition
Rahul Gandhi, Arvind Kejriwal and Subramaniam Swamy make for unlikely allies, but the three came together in 2016 to press the Supreme Court to dismantle the very possibility of defamation being tried as a criminal matter. Each of them faces charges under sections 499 and 500 of the IPC, and sought to have them treated as civil suits. The court refused their plea, satisfied in the constitutionality of a provision introduced to India by the British government in the 19th century and later abandoned in the United Kingdom.
Without strong measures against police overreach and frivolous complaints of defamation, news organisations, specially small independent ones, are vulnerable to being punished by the process itself. The failing industrialist Anil Ambani launched over two dozen cases against journalists, publications and politicians in 2018 alone. All of them were filed in courts in Ahmedabad, a jurisdiction which does not require petitioners to deposit a percentage of the amount demanded as damages, and where pliable lower courts are not restricted from hearing cases where massive damages are demanded.
A colonial law
If defamation wasn’t bad enough, we have in recent years witnessed the resurgence of a statute that is associated in many Indian minds with the British regime’s suppression of nationalists like Lokmanya Tilak, Section 124A of the IPC, which relates to sedition. Gandhi demanded the repeal of the law in the 1920s, a number of freedom fighters wanted it expunged after Independence, and the United Kingdom no longer tries people for the offence, yet it lingers on in India.
The Supreme Court stated as early as 1962 that sedition could be invoked only when persons called for the violent overthrow of government. The court made explicitly clear that mere dissent from government policy, however deep and strongly worded, did not qualify as sedition. The court has repeatedly affirmed in other cases that the mere raising of slogans against India does not constitute sedition. Yet, activists, authors, journalists, even cartoonists, have been jailed under Section 124A with those who filed charges facing no negative repercussions.
The debate around sedition has been overturned in recent years, with those seeking its end being branded anti-national. The Congress party manifesto included a commitment to repeal the law, but that rare progressive impulse only provided ammunition to Narendra Modi’s jingoistic campaign. In the absence of strong measures by the Supreme Court against those who misuse laws constraining free expression, we can expect more arbitrary arrests and a greater chilling of discourse and dissent.