FREE SPECH, IRRESPONSIBLE STATEMENTS AND SEDITION LAW (124A)
II. How irresponsible is this fake tweet?
III. Article 19 does not prohibit all false statements
IV. Whether such tweets amount to sedition?
V. Working definition of sedition
VI. Whether actual violence or disorder or incitement necessary?VII. Can Shashi Tharoor and others be prosecuted under other laws ?
VIII. Concluding remarks
Introduction
Shashi Tharoor, senior politician from congress party, Mrinal Pandey, Rajdeep Sardesai, senior journalists etc have been booked under various provisions of law (IPC and IT Act) including sedition (124A). There are multiple FIRs against them in various States for their false and misleading tweet on the death of a farmer in Delhi. It was alleged that a farmer, who was a part of a tractor rally on Jan 26, 2021 in protest against farm laws was shot dead by the Police. The group of protesters turned violent. Later on the Delhi Police issued a cctv footage which indicates that he was not killed by bullet. Postmortem also confirmed it. The authors of the tweet admitted their mistake and regret their tweet. https://www.hindustantimes.com/cities/gurugram-news/fir-filed-against-shashi-tharoor-and-six-others-for-tweet-on-farmer-s-death-101611945557513.html
The irresponsible and fake tweets are a reflection of the mad race of being top trenders in social media. Top trenders have political and commercial values.
How irresponsible is this fake tweet?
The tweet and forwards of this factually wrong tweet is the display of extremely irresponsible conduct. The gravity of irresponsibilities multiplies (i) when political celebrities, well known media people and other intellectuals make a statement in the public domain which reaches to mass because they have millions of followers. It is forwarded thousands of times. (ii) Followers and readers of such messages, many of whom are young persons, repose utmost confidence in them. (iii) As social media platforms have global reach, such tweets have an international audience. The loss is irreparable and irreversible even if someone regrets or withdraws the tweet. Such tweets are irresponsible. Are they illegal? Can such tweets lead to criminal prosecution?
Article 19 does not prohibit all false statements
Article 19(1) (a) guarantees freedom of speech and expression. The constitution does protect uncomfortable opinion, sharp criticism as well as strong dissent whether right or wrong. Article 19 is generous enough. It does not only protect facts but also protects factually wrong or fake statements (like UN has declared the national anthem as the best song). However, it does not extend to making factually wrong statements (i) by someone “who is who” (ii) the matter is sensitive one (iii) public servants are involved. It is because the impact of such statements are wide. The Constitution provides reasonable restrictions under eight heads. In this case, those restrictions which come into play may be, statements in the interests of public order, decency or morality, defamation or incitement to an offence.
Whether such tweets amount to sedition?
The law of sedition and similar offences of disaffection can be traced in a number of central and state enactments. The classical central law is section 124A of IPC which provides statutory definition of sedition as under--
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.
Explanation 1. The expression "disaffection" includes disloyalty and all feelings of enmity.
Explanation 2. Comments expressing of the measures of the Government with a view to obtain their alteration by lawful means, without exciting or attempting to excite hatred, contempt or disaffection do not constitute an offence under this section.
Explanation 3. Comments expressing disapprobation of the administrative or other action of the Government without exciting or attempting to excite hatred, contempt or disaffection, do not constitute an offence under this section.
The controlling precedent on section 124A is Kedar Nath Singh case of 1962 which was unanimously decided by a constitution bench of five judges.
Working definition of sedition
Based on the statutory definition and judicial description of section 124A the working definition of sedition can be --
“Sedition is a calculated expression of extreme form made against State with specific intent to create hatred, contempt or disaffection (or its attempt) which has a tendency or incitement of violence or disorder.” Minimum punishment can be mere fine while maximum punishment is life imprisonment. If the conduct is penal but not very serious, the courts are empowered to punish with mere fine. The wide range of punishment indicates that sedition may contain less serious and more serious conduct against the State. Therefore, it has following elements --
It must be a calculated expression
The expressions made by seasoned politicians and experienced intellectuals, that too in writing are calculated and intentional statements. It is not a statement made by any young person or common person who expressed his anguish because of some sudden incident. It was a deliberate and well thought statement.
It must be of extreme form-
The statement that a farmer was (allegedly) shot is not mere criticism of any action. It indicates that dissent is being crushed by means of guns. It was a factually wrong statement made at a crucial time when there are competing claims on various issues. Violent protests were going on by farmers. Though there was sympathy, support and opposition for the issues of farmers, the incident at Lal Quila by a group of miscreants was intolerable. The citizens were anguished and extremely disappointed. Both sides were boiling. The statement therefore was of extreme form.
Against State
As the Police represents the State, and was performing a legitimate duty of maintaining law and order, the statement against the police was against the State.
With specific intent of creating hatred, contempt or disaffection (or attempt of it)-
Sedition is not only a general intent crime but also a specific intent crime. That means, not only statements were made intentionally but they were made for a specific purpose. The purpose must be to generate hatred, contempt or disaffection (or its attempt). The statement creates hate against the Police and the State. The Police are already a soft target. They are infamous for harassing innocent people, misusing their authority, abusing their guns. The image of the Police is already very bad because of custodial deaths, encounters and indiscriminate firings. Any statement like some one killed in police firing is easily believable and further fuels hate against the working of the Police. Therefore, a specific intent is manifest. It has further maligned the already rotten reputation of the Police and reinforces its cruel image. The tweet conveying that a protesting farmer was killed in the Police firing on Jan 26 strengthens the argument that the State uses the Police as an instrument of oppression and suppression. They do not believe in dissent and democracy and are against the causes of the farmers. The simple meaning of these statements have proximate connection to create disaffection towards the government (State here). Besides these tweets by highly influential intellectuals provided an easy and reliable tool for the hatred against the Police. Section 124A also uses the word attempt. Even if the conduct leads to an inchoate situation, the want of section 124A is complete.
Tendency or incitement of violence or disorder
This element is not provided under section 124A of IPC. They are incorporated through judicial interpretation utilising the interpretative tool of “reading into”. Without these words (also known as tendency test), section 124A will not be constitutional as they will violate the fundamental right under article 19(1) (a). Without these words the offence of sedition cannot be protected under article 19(2) where reasonable restrictions are provided. This is the ratio of Kedar Nath Singh v. State of Bihar, AIR 1962 SC 955 by a constitution bench. In this case Kedar Nath Singh made an inflammatory speech against the Government of India led by Congress party. He compared congress with the Britishers as equally dangerous. He stated that
“When we drove out the Britishers, we shall strike and turn out these Congress goondas as well. These official dogs will also be liquidated along with these Congress goondas.”.. “Forward Communist Party does not believe in the doctrine of vote itself. The party had always been believing in revolution and does so even at present. We believe in that revolution, which will come and in the flames of which the capitalists, zamindars and the Congress leaders of India, who have made it their profession to loot the country, will be reduced to ashes…”
VI. Whether actual violence or disorder or incitement necessary?
After the speech of Kedar Nath Singh actual violence was not committed . There was no trace of actual disorder, (in the SC or HC judgement). But the Supreme court upheld the conviction of the accused Kedar Nath Singh because
(i)his statements were sufficient to excite disaffection towards government, hatred against the State
(ii) these statements have tendency or incitement of violence, or disorder.
In other words any consequence in the form of actual violence or disorder is not required. Mere tendency is sufficient.
The moot question is whether such tweets amount to a tendency of violence or disorder ? The police have to establish it. Currently, the evidence available on public domain indicates that the statements are lacking in the last element of the dictum of Kedar Nath Singh. Again in the Balwant Singh case (1995) the Supreme court held that a conduct of expression is not seditious because it was casual in nature and had no tendency of violence or disorder. In this case two sikh persons made slogans against country when they heard the news of assassination of Indira Gandhi. The Supreme court held that casual slogans, made a couple of times having no impact on surrounding cannot be termed as seditious. In other words if slogans or expressions are not casual but serious, made not just a couple of times but many times, and have serious impact on surrounding like the slogans are supported or opposed by others, followed by chances of disorder or violence, such expression cannot be protected. Therefore, it is wrongly believed that Balwant Singh case has legitimised anti India slogans like those made in JNU in 2016. In 2016 also in the case of Common Cause v. Union of India a division bench has again upheld that the authorities shall be guided by the principles of law laid down in Kedar Nath Singh. The Court refused to issue any direction to check misuse. Such tweets of Shashi Tahroor, Mrinal Pandey etc may create offence under other provisions of law but it will be very difficult to establish the sedition charges. The Police will be required to drop the charges of sedition. However section 108 of CrPC makes special provision for seditious material. It can be used.
VII. Can Shashi Tharoor and others be prosecuted under other laws ?
The provisions that may be closer to such irresponsible conduct can be --
153. Wantonly giving provocation with intent to cause riot—if rioting be committed; if not committed.—
Whoever malignantly, or wantonly by doing anything which is illegal, gives provocation to any person intending or knowing it to be likely that such provocation will cause the offence of rioting to be committed, shall, if the offence of rioting be committed in consequence of such provocation, be punished with imprisonment of either description for a term which may extend to one year, or with fine, or with both; and if the offence of rioting be not committed, with imprisonment of either description for a term which may extend to six months, or with fine, or with both.
The meaning of malignant is “evil in nature, influence, or effect”. Wanton means “having no just foundation”. The statements were evil in nature and had no foundation.
Illegal -The conduct of writing the tweet is illegal. Illegal is described under section 43 as “The word “illegal” is applicable to everything which is an offence or which is prohibited by law, or which furnishes ground for a civil action;” Such false and misleading tweet “furnishes ground for a civil action”.
As there is no riot committed after the tweet, 153(II) comes into picture where the punishment is maximum six months.
Such tweets may also attract section 504 ( Intentional insult with intent to provoke breach of the peace.) and 505(1) which punishes any rumour which is likely to incite offence.
VIII. Concluding remarks
The preamble of the Constitution of India declares that “we, the People of India, have solemnly resolved to ...secure to all its citizens: JUSTICE ... political; and LIBERTY of thought, expression, and belief." The Preamble also solemnly resolved “to promote among them all FRATERNITY”. No republic can be established on rational edifice if responsible persons pass false, fake and misleading statements. The Police signifies the power of political institutions. A fast and false statement against the Police cannot lead to “justice ..political”. “Liberty of thought and expression” are one of the pious commandants of the prembular promise. It must stand on a strong foundation based on truthful expressions. It should not be polluted by false and misleading narratives to gain petty political mileage because they do not promote “fraternity” another virtue in the Preamble. Can a misleading, false or fake expression lead us “to develop the scientific temper, humanism and the spirit of inquiry and reform,” which is a fundamental duty under article 51A(h)? Are such statements morally correct which is another reasonable restriction under article 19(2)? In other words the irresponsible tweets by responsible citizens do not help in forming a vibrant democracy. They are in breach of the Preamble, part III (fundamental right) and Part IVA (fundamental duties) of the constitution. There is a ray of hope in the repentance made by these intellectuals in admitting such blunders. But some of these intellectuals are “in the habit of” making false statements so that they may gain media attention, fan followers, likes and forwards. It is time we all should condemn such conduct and believe in F3 (Fighting fast forwards). It is high time a law similar to section 66A of the Information Technology Act, 2000 (making it non cognizable and bailable) be incorporated after addressing the concern of the law laid down in Shreya Singhal (2015). This is necessary to regulate false, misleading, fake and hateful narrative.
Anurag Deep has jointly authored Law of Sedition in India and Freedom of Expression, (The Indian Law Institute, 2018) with Professor Manoj K Sinha, Director of the Indian Law Institute, New Delhi. The book can be purchased from online portal of ILI -- http://ili.ac.in/booksales.html or sending a mail order to registrar@ili.ac.in or director@ili.ac.in or https://www.amazon.in/LAW-SEDITION-FREEDOM-EXPRESSION-INDIA/dp/B08576C6MK/ref=pd_sbs_1?pd_rd_w=iV1jB&pf_rd_p=daed850f-93fe-4839-8ae5-b1d9164f99e8&pf_rd_r=RJB1X57MJ8F2HPGT2A1J&pd_rd_r=d5b2b6ca-f665-4375-be60-5001b1b1f23b&pd_rd_wg=nlXo0&pd_rd_i=B08576C6MK&psc=1
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