It was three bills was introduced In the Indian Parliament in August, as part of a comprehensive reform of the entire criminal justice system. In a departure from the legacy of colonial law, they claim to replace “justice” with “punishment” as the goal and place citizens’ rights at the center of the system.
India’s substantive criminal law has been governing it for a long time Indian Penal Code (IPC) of 1860which dates back to the colonial era. the invoice To replace the IPC, it includes 175 amended articles, eight new additions and the cancellation of 22 articles, including the section on sedition.
The proposed legislation raises questions about whether colonial laws alone are responsible for the diminishment of democratic freedoms in India, and whether the new laws are able to restore basic freedoms of expression, association and dissent to citizens.
The state of democratic freedoms in India can be assessed in three ways: comparing the space available for civil liberties in colonial and post-colonial laws that restrict fundamental freedoms, analyzing how these laws have been implemented, and evaluating the democratic rights provided by the proposed legislation.
The justification for laws restricting freedoms is related to concerns about public order and national security, but implementation patterns indicate that they can be used politically against opposing voices. This blurs the boundaries between criminal offense and legitimate dissent, making dissidents criminals. Only those laws and regulations with a strictly defined criminal scope will pass the test of democracy.
Dissent in India is an extension of the basic right to liberty guaranteed as part of the Article 19 of the Indian Constitution, which includes the rights to expression, peaceful assembly and association, among other rights.
The Constitution places reasonable restrictions on the exercise of these rights in the name of protecting certain interests such as “public order”, “security of the state” and “the sovereignty and integrity of India”.
These restrictions mark the dividing line between legitimate opposition and criminal action.
If a citizen’s act is considered criminal, a charge is brought against him under a specific law. The process of judicial adjudication involves the judiciary deciding whether a citizen’s exercise of his or her liberty exceeds constitutional restrictions and whether it is reasonable to limit the liberty by invoking specific laws.
Hence, the limitation is made on the constitutional validity of laws that restrict freedoms – including the right to dissent.
Criminalize dissent and discontent
A colonial era law that is in stark contrast to the right to speech is Law against seditionissued in 1870 (IPC Section 124a), which was used by all successive governments after independence.
In its original formulation, which remains in the penal code, the law criminalizes all forms of expression that incite “hatred, contempt, or indignation” against the government. But the Supreme Court in 1962, Explanation It applies only to those who incite chaos or violence.
According to another Official numbers For the year 2021, 76 initial police reports of sedition were registered across India. In May 2022, Law suspended by the Supreme Court for reconsideration – on the basis of its blatant misuse in the hands of the executive branch.
Some of the laws passed after independence, such as the Unlawful Activities (Prevention) Act (UAPA), and it also has an impact on political freedoms. UAPA was enacted in 1967 but was given its contemporary shape through subsequent amendments made in 2004 and 2008.
It is an exceptional law – in the sense that it excludes the usual guarantees given to the accused and sets special conditions with regard to bail, investigation and trial. Among other things, the UAPA criminalizes acts and expressions that “disrupt the sovereignty and territorial integrity of India” or “cause discontent against India”.
UAPA also includes provisions for ban organizations and criminalizing association with prohibited organizations. As a result, he lost Far-reaching consequences To exercise all possible fundamental freedoms guaranteed by the Indian Constitution.
Misuse of the law
Annual crime statistics reveal That both colonial-era laws such as sedition and post-colonial legislation such as UAPA are used with the same willingness.
Their use is characterized by an increasing number of cases and a very low conviction rate. This percentage shows that laws have been misapplied in a large number of cases.
363 cases were registered under the sedition law between 2017 and 2021. The number of convictions in the past five years was only six, compared to 51 acquittals. The rest of the cases are still pending.
in 2021 Alone, the waiting rate — cases awaiting settlement — was 96.9 percent. Cases registered under the Sedition Act included cases of cheering on a rival cricket team, offensive social media posts, forwarding WhatsApp messages, Recitation of Hanuman Chalisa and others, without any inherent element of incitement to violence. The court has recognized these facts while suspending the law.
More than 800 cases of sedition have been submitted Between 2010 and 2021 for 13,000 people. There was a 28% annual rise in cases after 2014, when the Bharatiya Janata Party came to power.
according to Annual crime statistics4,919 cases were registered under UAPA between 2017 and 2021. The average conviction rate over the past five years is about 30 percent, but that’s based on a minuscule figure — 95 percent of cases are awaiting trial. Some 1,621 people were arrested in 2021.
according to nobody StadyOnly 2.8% of arrests made between 2015 and 2020 resulted in a conviction under UAPA. despite of Low conviction rateAnd the accused ends up suffering long periods of imprisonment Because UAPA sets conditions that make sponsorship very difficult.
The study showed that of the 4,690 people arrested between 2018 and 2020, only 1,080 were secured bail. Although a dangerous law invoked to address threats to national security, it has been used routinely against students, journalists, and human rights activists around the world. cases Unrelated to national security, with excessive delays on the part of investigative agencies in completing the investigation.
New laws of a broader scope
One of the most important issues with these laws is the ambiguity of their language – such as ‘indignation’ and ‘the sovereignty and integrity of India’ – which allows all kinds of activities to be included in its scope.
The Bharatiya Nyaya Sanhita Bill that was introduced in Parliament in August cannot be seen as breaking the trend towards broad and vague legislation. It only replaces sedition b another section which criminalizes acts and expressions that threaten the sovereignty and integrity of India. In fact, it broadens its scope by removing the requirement of incitement to violence as a necessary factor.
It also adds a new section on the Terrorist Offenses Law (Article 111), which criminalizes acts of provocation and intimidation that are likely to endanger public safety. Offenses under UAPA are reproduced in the proposed bill without any language changes.
Provisions that may conflict with political freedoms are in fact maintained and, in fact, reinforced.
Anushka Singh teaches at the Faculty of Law, Governance and Citizenship, Dr. BR Ambedkar University Delhi (AUD), New Delhi, India, and is the author of Discord in liberal democracies.