Violating the Criminal Justice Contract

The criminal justice system is based on an implicit four sided contract: the legislature shall pass the laws, the judiciary will interpret them, the people will observe them and the police enforce them. This contract appears to be breaking down in India. In an increasing number of cases, the law enforcers - the police - are refusing to abide by the judiciary’s interpretations of some critical laws.

It should suffice to refer to three laws to prove this point: Section 124A of the Indian Penal Code (sedition), Section 306 (abetment to suicide) and Section 66A of the Information Technology Act (restrictions on online speech and content).

The sedition law is perhaps the one being misused most by the executive to serve its political and ideological ends. Ever since the Kedar Nath Singh judgment in 1962, which first read down Section 124A, the Supreme Court has repeatedly ruled that merely raising slogans, writing articles or possessing pamphlets or other literature does not constitute the offence of sedition (Balwant Singh 1995, Common Cause 2016).

The highest court has stated unambiguously that a sedition charge is attracted only if a clear and immediate incitement to violence, or actual violence, or “the tendency or intention to create public disorder” can be proven.

Absent these exceptions, free speech as guaranteed by Article 19(1) of the Constitution cannot be suspended on charges of sedition, a colonial-era law. In Balwant Singh, for instance, the court held that the mere raising of “Khalistan Zindabad” (Long Live Khalistan) slogans did not amount to sedition.

And yet the police and executive go on registering sedition cases and arresting people for voicing opinions against the government. The Congress arrested the cartoonist Aseem Trivedi in Mumbai, earlier this year several intellectuals were charged in Assam for criticising the proposed amendments to the Citizenship Bill, the BJD in Orissa last year arrested a journalist for speaking against the state government, in January the Delhi police after years chargesheeted Kanhaiya Kumar and nine others saying they raised anti-India and pro-Kashmir slogans in JNU, and on February 11 the UP police lodged sedition cases against 14 students of the Aligarh Muslim University after a scuffle with some ABVP activists.

It has been reported in the media that in UP alone, 150 sedition cases have been registered in the last few years. From all reports that have appeared in the public domain, none of these cases comes within the definition of sedition mandated by the Supreme Court. But this has not deterred the police from going ahead.

According to a news report based on Union Ministry of Home Affairs statistics, 179 sedition cases were registered between 2014 and 2016 – the number of convictions was only 2!

The figures speak for themselves: the intention of the government is not to convict but to harass and persecute through the tortuous judicial process and media trials.

Nor does it help the cause of free speech when High Court judges themselves consider books such as Tolstoy’s War and Peace seditious works of art – this was an obiter dicta by the honourable Justice Sarang Kotwal in Bombay just this week in the Koregaon trials.

Misuse of Section 66A of the Information Technology Act is just as pronounced, even though the Supreme Court had struck down this section too in the Shreya Singhal judgment on March 24, 2015. The court held that Section 66A was violative of Article 14 of the Constitution (equality before the law), Article 19 (freedom of speech and expression) and Article 21 (right to life and personal liberty).

Yet it continues to be employed freely by administrations to stifle dissent, target minorities or settle personal scores. The legal data site India Kanoon lists 45 cases between just January and September 2018, and a petition in the Supreme Court claims that 22 persons have been arrested since 2015. A typical example is that of Zakir Ali Tyagi of Muzaffarnagar, UP, who in April last year was charged and arrested under Section 66A for posting on his Facebook page that the UP Chief Minister had 28 criminal cases registered against him! Tyagi is currently out on bail but the case proceeds.

In fact, so pervasive and widespread has this blatant misuse and illegality become that on January 7 the Supreme Court, acting on a PIL filed by the People’s Union for Civil Liberties, threatened to arrest government officials for violating its orders and continuing to harass people by foisting this section on them.

The law pertaining to abetment to suicide provides another fertile ground for the police to demonstrate their disregard for settled law. Both the Supreme Court and various High Courts have in a plethora of judgments laid down the essential ingredients for a charge of abetment. They have ruled unambiguously that the mere naming of a person in a suicide note is not enough to infer the offence; there has to be mens rea (intention or knowledge of wrongdoing that is part of the offence) and for the charge to be made it is necessary that the accused should be “instigating a person or intentionally aiding a person to commit the act.”

And yet, all over the country, dozens of people are charged, and arrested, for abetment without any evidence, merely because they are named in a suicide note or accused by the deceased’s next of kin.

An irresponsible media exerts pressure on the police to act. School teachers are arrested because they scolded a pupil who then killed himself, employers because they took punitive action against an employee, men because their refusal to marry someone prompted the latter to take her life.

In the most shocking such case in Noida last December, Swaroop Raj, an executive in a multinational company, was accused by two female employees of sexual harassment. An Internal Complaints Committee was set up to enquire into the matter and Raj was placed under suspension. He went home and committed suicide. On his wife’s complaint the Noida police registered a case of abetment to suicide against the two women complainants as well as members of the ICC!

Not only does this fly in the face of the SC ruling, it is also a major setback against efforts to ensure the safety of women from predatory men in their workplaces. It will seriously discourage women from coming forward to complain about inappropriate behaviour by male colleagues. Making a complaint to the rightful authority can in no way be construed as instigating a person to kill himself or aiding in that act.

In a more recent case, on August 1, a 25 year old marketing executive in Gurgaon killed herself because her boyfriend refused to marry her. She did not leave behind a suicide note or accuse him, but her parents did. A case of abetment to suicide has been lodged against him with no evidence whatsoever. This in spite of the fact that it was the very same boyfriend who had called the police station the same day to warn them that the woman might commit suicide after an argument with him!

Such instances of disregard of Supreme Court and High Court rulings appear to be on the rise, and it does not bode well for our criminal justice system. The onus to correct this does not lie on the police alone, and the trial courts too must accept their fair share of the blame. For it is their lack of scrutiny of the chargesheets or complaints that allows such cases to be sent to trial. They are failing to act as independent checks on the police.

Sometimes the trial courts even directly entertain such complaints that are frivolous and baseless in law, as in the instance of a West Bengal judge issuing an arrest warrant against Shashi Tharoor for having stated, 18 months prior, that India was becoming “a Hindu Pakistan”. The warrant was stayed by the High Court on the ground, among others, that it was without jurisdiction.

The police or prosecution agencies may claim ignorance of the law, but surely the courts cannot be allowed this privilege. It is time the higher courts acted on the warning given by the Supreme Court, and started holding such trigger happy police officers and trial judges to account for contempt. That at least would be legal.