In a statement issued in the wake of the arrest of JNU student leader Kanhaiya Kumar, Amnesty International India has said, the “crackdown on freedom of expression must end.” Text:
The Delhi police must immediately release Jawaharlal Nehru University (JNU) Students’ Union President Kanhaiya Kumar and former Delhi University lecturer SAR Geelani and drop sedition charges against them, Amnesty International India said today. The police must also investigate multiple attacks by lawyers against journalists and others at a Delhi court.
“From arresting a student under a colonial-era law to failing to prevent attacks inside courts, the Delhi police has shown a casual disregard for constitutionally guaranteed rights in recent days,” said Tara Rao, Programmes Director at Amnesty International India. “This apparent disdain for the right to freedom of expression is both misguided and dangerous.”
The Delhi police, which reports to the central Ministry of Home Affairs, arrested Kanhaiya Kumar on 12 February for allegedly raising ‘anti-national’ slogans at a peaceful demonstration inside the Jawaharlal Nehru University three days earlier.On 16 February, the police arrested SAR Geelani for organizing an event where ‘anti-India’ slogans were allegedly raised. Both were arrested under Section 124A of the Indian Penal Code, which makes the offence of sedition punishable with life imprisonment. A Delhi court has remanded SAR Geelani in police custody until 19 February.
“Indian courts have ruled that expression can be restricted on grounds of public order only when it involves incitement to imminent violence or disorder. By branding people ‘anti-national’ merely for expressing opposing views, the central government and Delhi police are displaying an appalling intolerance for dissent,” said Tara Rao.
“The sedition law was used by the British to curb free expression during India’s independence struggle. It’s unfortunate that the government is using it now to silence and harass those with divergent opinions. In the interests of Indian society, this law must be immediately repealed.”
On 15 February, at Kanhaiya Kumar’s hearing at a Delhi trial court, journalists, students and teachers were threatened, slapped and beaten up by lawyers. Several eyewitnesses say that Delhi police personnel did not intervene, despite repeated requests. Hundreds of journalists have protested against the attacks. On 17 February, Kanhaiya Kumar was assaulted by lawyers as he was being taken to the trial court for a hearing, according to journalists. The court remanded him in judicial custody till 2 March.
“The police failure to protect people from violent attacks inside court premises is mystifying,” said Tara Rao. “Lawyers are not above the law. The police need to investigate both the attacks and their own inaction, and hold those responsible to account.”
“India’s Prime Minister has spoken repeatedly at home and abroad of his government’s commitment to the rule of law. Those promises are increasingly ringing hollow.”
Section 124A of the Indian Penal Code defines sedition as any act or attempt “to bring into hatred or contempt, or…excite disaffection towards the government”. It was enacted during the British era to stifle dissent during India’s independence struggle. Mahatma Gandhi, who was imprisoned under the law, called it “the prince among the political sections of the Indian Penal Code designed to suppress the liberty of the citizen”.
Article 19(1) of the Constitution of India guarantees to all citizens the right to freedom of speech and expression. Article 19(2) makes public order a ground, among others, for restricting freedom of expression. However India’s Supreme Court has ruled that such restrictions must be authorized by law and must not be excessive or disproportionate. The Court has also ruled that restrictions relying on the ground of public order are valid only when there is a close connection between the speech and public disorder, and there is an imminent threat of lawlessness.
In 2015, India’s Supreme Court struck down a law on online expression in the Shreya Singhal case, observing: ‘Mere discussion or even advocacy of a particular cause howsoever unpopular is at the heart of Article 19(1)(a). It is only when such discussion or advocacy reaches the level of incitement that Article 19(2) kicks in.”
However the law continues to be used to suppress critics. Successive governments in India have deployed it against journalists, activists and human rights defenders. In 2015, the law was used to arrest a Dalit folk singer in Tamil Nadu for songs criticizing the state government, and a community leader in Gujarat protesting for quotas in education and employment.
Under international human rights law binding on India, states are allowed to impose restrictions on the right to freedom of expression on grounds including ‘public order’. However any such restriction must be demonstrably necessary and proportionate, and must not jeopardise the right itself.
In December, an MP introduced a bill in the lower house of Parliament seeking to amend the sedition law to cover only cases involving direct incitement of violence. The bill is still pending.