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Monday 10 September 2012

Law of Sedition, Aseem Trivedi and The Media


Before I say anything else, I must first clarify that neither I claim that Aseem Trivedi's is guilty nor will I vouch for his innocence. A Court will decide that.

Alright. 

By now everyone knows what the Aseem Trivedi cartoon controversy is all about. I for one have not seen the cartoons. I'm not going to delve into the ethics debate that seems to be doing its rounds among cartoonist and others alike. What I will simply convey is my understanding of the law under which Aseem has been arraigned by the Police. I'll also tell you my opinion about the serious mistake that the media might be committing in this whole controversy.

Aseem Trivedi, for drawing cartoons that have allegedly desecrated our democratic institutions, has been charged under Section 124 A of the Indian Penal Code. This is undubitably a very serious charge, one of sedition against the Government established by the law of the land. I'll lay down the law as it stands so that you can form  an objective opinion about the issue.

Section 124 A says that

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 disapprobation 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.

I do not want to discuss the merits of Aseem's case since it is a matter before the Court. I do not want to commit the same mistake as, for instance, Arnab Goswami of Times Now channel seems to be committing. He has bludgeoned Aseem's work as derogatory, anti national and anti democratic on prime time television, knowing fully well that it is a serious offence to prejudice mankind against a person who is facing trial in the Court of law. It is a dire need of the hour that either the Govt. or the Supreme Court must issue appropriate guidelines for media regulation in such matters. I for one would personally prefer that the Hon'ble Apex Court of our country does this task since in doing so it'll have an unbiased and independent approach and it'll never take away media's right to effective reporting and fair criticism. Therefore it's high time someone drags the channels to the Court. In the name of self regulation media is totally unregulated. It was only a few days ago, when the Supreme Court had come down heavily on the media for its mindless and insensitive Live broadcasting of the 26/11 Mumbai attacks which resulted in serious setback to security forces fighting those terrorists on the ground..


I'm not for moment saying that Aseem is innocent or that he is guilty. It's not my business to say so, particularly not on prime time television. As an anchor of a news show / debate, one is expected to keep his own opinions to himself and allow a balanced submission of contentions by the participants of debates. It was horrible to see the way Arnab was going about the whole affair. He for instance said that the cartoons are so scandalous that he will refrain from showing that on TV. Then he went on and on against the cartoonist and his alleged lack of respect for his mother land. My point is that let us not have such debates where the pivotal issue is sub judice before Courts. Because once you have the debate you cannot actually prevent prejudice from being propagated. But then a channel has got to do business, at any cost.


Now an obvious question may come from the other side -  What about freedom of media, free speech and Article 19 of the Constitution ? Well Article 19 of the Constitution while guaranteeing to every individual right to freedom of speech and expression, is also subject to 'reasonable restriction' . Now that reasonable restriction is based on well established principles of law. For example I cannot defame somebody by abusing my right to free speech. So the moment someone's speech and / or expression tends to violate a established principle of law, reasonable restriction is cast on it from that very moment and continues to be so till that speech or expression continues to tend to violate any law. Please remember that in no healthy democracy freedom is absolute. Every freedom has some limits.

I don't think I need to tell my dear readers that how seriously undemocratic and unconstitutional the act of causing prejudice against an undertrial person is. 

For a detailed analysis of this issue  (Read More On Free Speech, Media Trial & Prejudice ).

Coming to another aspect of this case, I've seen a lot of people getting furious against the law under Section 124 A. Some call it barbaric, some call it anti - free speech and some label it archaic. Honestly I do not understand why they think so. Every country needs to frame a law to safeguard it's Government by attaching strong consequences against unjustified & mala fide attacks on it. In a country like India, there would always be disruptive elements who would go to any despicable extent to malign a Government. It is against such attempts that the law under Section 124 A exists. It is also a serious misunderstanding that Section 124 A takes away anyone's right to freedom of speech and expression, or as it is popularly touted, curtails fair criticism of Government functioning. If one reads Explanation 2 & 3 to Section 124A, you'll know that fair criticism of the Govt.'s actions to bring about meaningful change in them, without any malice towards is clearly exempted from the purview of this section. So why the chaos against Section 124 A ?

It is necessary to understand the two important terms used in this section viz. disaffection and disapprobation. These two terms as well as the import of Section 124 A have been lucidly explained by the then Chief Justice Sir Comer Petheram in the following words :-

"Disaffection means a feeling contrary to affection, in other words, dislike or hatred. Disapprobation means simply disapproval. It is quite possible to disapprove of a men's sentiments or action and yet to like him. The meaning of the two words is so distinct that I feel it hardly necessary to tell you that the contention of Mr. Jackson (the lawyer) cannot be sustained. If a person uses either spoken or written words calculated to create in the minds of the persons to whom they are addressed a disposition not to obey the lawful authority of the Government, or to subvert or resist that authority, if and when occasion should arise, and if he does so with the intention of creating such a disposition in his bearers or readers, he will be guilty of the offence of attempting to excite disaffection within the meaning of the section though no disturbance is brought about by his words or any feeling of disaffection, in fact, produced by them. It is sufficient for the purposes of the section that the words used are calculated to excite feelings of ill will against the Government and to hold it up to the hatred and contempt of the people, and that they were used with the intention to create such feeling." 

It's under these established canons of legal principle that Aseem's case will now be tried. 

When we vent our anger against the existence of sedition law by saying that it gives the Govt. in power  and the Police the excuse to muzzle free speech, we must understand that Police can arraign anyone in any case under any penal provision. It's ultimately the Court of law where the veracity of the Police / Prosecution case is tested. So let's hope justice prevails in Mr. Trivedi's case.

As far as section 124A is concerned, it is my personal opinion that the law should remain as it is. If this Section is not there, then disruptive elements will incite all kinds of verbal contempt against a Govt. with ulterior motives and get away under the plea of right to freedom of speech and expression. Section 124 A seeks to balance free speech by controlling and deterring hate speech and contemptuous slander against Government. Minus this provision, there will remain no strong legal deterrence against perpetual malicious hate spewing against the Govt. of the day. Though the section imposes restrictions on the fundamental freedom of speech and expression, the restrictions are in the interest of public order and are within the ambit of permissible legislative interference with that fundamental right.

40 comments:

  1. As you say,it is best to leave it to the judge,but my sympathies are with Aseem all the way.How much & for how long can you tolerate?

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    1. Though I agree that we are fed up with the corrupt and the rotten, there is a way to go about checking it. Just like the way the corrupt and the greedy climb back to power through elections where we the people vote them to power. They never came to power by undemocratic methods. Hence their removal cannot be undemocratic too.

      Thanks for reading Indu ji

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  2. I make no comments about the case concerned. The point is that a criticism about the functioning of the government is not seditious as per law - unless the said criticism is phrased such as to question the sovereignty or integrity of the country. Of course, if the criticism calls for violent action, it would get covered by incitement to riot and the likes.

    Freedom of Speech is an argument that is freely used but the point is even we as individuals recognize the need for reasonable restrictions. You would not want your neighbor to exercise his freedom of speech by questioning your integrity. Laws of slander and libel exist to restrict freedom of speech against individuals and, in like manner, the laws against sedition exist to restrict freedom of speech from a national perspective.

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    1. Exactly my point Suresh ji. Thanks for reading

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  3. please any one explain on which cartoon he is arrested

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    1. My friend, I guess it's for the cumulative effect of all or some of the cartoons. Now it will be during his trial before Court where the prosecution will explain for which cartoon (s) of his, he is being prosecuted besides ofcourse explaining how drawing it is punishable under Section 124 A, IPC.

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    2. This comment has been removed by the author.

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    3. He was arrested for his cartoons mocking the constitution during a march held by Anna hazare last year in Mumbai. (www.ajeethboaz.com)

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  4. @Manas: its the one in which he has he has replaced lions by wolves in the national emblem...also written 'bhrashtmave jayte'...i personally found it impressive...hope this does not take me to the edge of law :P

    @Anupam: sedition charges on basis of a cartoon is clear misuse of 124A...we all know how judicial system works here, so no point commenting on it...if i would say i trust in justice system m being Idealistic...and as far as i know...There is no existence of Idealism...

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    1. Vineet, please don't be cynical about an institution without knowing the dimensions of its functions. What did the judicial system do here ? It's the Police which has charged him under Section 124A. If at all any institution might salvage the stand of Aseem Trivedi then it will be judiciary alone, provided he is innocent.

      It will be hypocritical on our part to hail the judicial system when it hounds after the corrupt in 2G scams and several other scandals or punishes powerful politicians in Gujurat for their role in riots, but lose faith in it, just because the Police may have wrongly charged someone with some wrong offence.

      You will not be an idealist in believing in our judicial system but you will be an optimist.

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    2. There are 3.2 cr cases pending in Indian courts out of which 56,383 cases were pending in the Supreme Court (till dec 2011). that is the situation of our judicial system.
      people tend to spend more time in jail than it says in the charges they are booked, just waiting their trial to come. so lets not talk about it. we are diverting from the topic here.

      as u said 'just because the Police may have wrongly charged someone with some wrong offence"
      police is a part of judicial system..isnt it? and you agree charges are wrong, which means 124A is misused...so we are in sync here...

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    3. I said 'may have wrongly charged' as a probability of either the Police being right or wrong. How can I pass judgment sitting back here without knowing the facts of any case. So I'll leave it to the Courts.

      As far as misuse of Section 124 A is concerned I can't make a blanket statement by saying that it is always misused. Each case has to be judged in its own merit. Or else every day so many persons who write, debate and speak against the Govt. would have filled the jails. That's not the law. I think there are enough examples of free debates and fearless criticism of the Govt. that we see everyday, particularly in the print and electronic media. None of them have been booked so far u/s 124 A. So its unfair to say generally that Section 124A is misused

      About the judiciary, No, the Police is not a part of the judiciary. It's the executive. It collects evidence for the Court to decide and executes orders of the Courts. How can the Police be a part of the judicial system, because if it is then it would punish everyone whom it arrests. It would then become the investigator, the judge and the punisher itself.

      I knew very well that your response to my statement on judiciary will be what you've just said about our judicial system. This is because what you said is the opinion of everyone. But Vineet because you made such a statement, as a responsible citizen you must also know what ails our judiciary and why ? In case you don't then I believe that this article will perhaps clarify your notions. Read it here - http://anupampatracontemplates.blogspot.in/2012/08/justice-in-jeopardy-why.html

      And about a specific issue about undertrials languishing in jail for periods more than the prescribed punishment for their offences. There have been mega drives by the Hon'ble Supreme Court and various High Courts to expedite the trials of under trial prisoners. There is a Supreme Court guideline that a daily register is to be maintained by each criminal court throughout the country mentioning the cases of undertrial prisoners pending in that Court. So that everyday a check is made on the speeding up of their trials. The High Courts all over the country monitor the proper implementation of these guidelines.

      In most cases what happens is that poor undertrial prisoners are unable to furnish bail and go out even if Court allows their bail application. The crimes being heinous, it is never advisable that the Courts should leave them without bail. So they keep languishing inside.
      Hence the point that you've raised about incarceration of prisoners for longer than their prescribed punishment may no more be a reality anywhere with such strong measures in place.

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  5. will surely go through the article...
    thanks a lot...keep enlightening.. :)

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  6. Anupam, I quite agree with the observations you've made in your finely balanced piece. There is nothing really wrong with Article 124A and I am sure the noblest of democracies would be having something similar in their laws. However, it is more the misuse of law that one should be wary about. The judiciary will surely decide the volumes of sedition contained in the cartoon in question. However, there is a need to muzzle bogus intellectuals like Mr Goswami and make the companies allowing him access to powerful platforms to such devastating effects.

    I have seen the said cartoon and I believe Aseem's angst is directed towards a corrupt system. I have a feeling that the cartoonist needs to realize that the country, represented by its emblem and the motto, itself is a victim of the very crime it is being charged with.

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    1. Though I've not seen the cartoons yet, I believe, under my limited knowledge of the facts of the case and without prejudice to the cause of the prosecution in Aseem's case, it's usually disproportionate to charge a cartoonist with the offence of sedition. The act does not fit the crime.

      Thanks for reading Mr. Umashankar and sharing your valuable insight on this issue.

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  7. That was enlightening Anupam. And I agree to your viewpoint on the media. They have totally forgotten what it is to remain neutral and just present facts instead of personal opinions!

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    1. Absolutely true. Thanks for reading Jayashree.

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  8. i have not seen the cartoon but i think the intention of Aseem is showing to public in his cartoons how these politician make our all institution. so i think
    he is not wrong and the police act is not right.

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    1. Seems to be so. Thanks for reading and sharing your opinion Ma'm.

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  9. Thanks for that post Anupam. I totally agree with your view that media is very biased when presenting information to the public.

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  10. Good post explaining the judicial context of the case. We do tend to easily get carried away by all the social media hoopla without getting into the details.

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  11. Interesting article which also touches on serious and important topic of today. Thanks for covering this in a short span of time.

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  12. Impressed ! anju from anjuscorner.blogspot.com

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    1. Well. Thank You, Anju. I hope I've cleared a few notions

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  13. Nice article.
    The law of sedition was made by the British to curb freedom struggle. Is it not time this law is re-looked into - what does the term "disaffection for the government" mean ? I may not agree to govt's stand on many issues as an individual- does it make me "dis-affectionate" ? Actually the whole brouhaha is actually a diversionary tactic - there are many big issues which are ailing the nation and time the government made serious attempts to bring it back on track.

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    1. Dear Sudipto,

      I don't know if you have properly read my article. Therefore I think I need to humbly inform you that you are mistaken when you say that "I may not agree to govt's stand on many issues as an individual- does it make me "dis-affectionate" ?" I've dealt with the issue raised by you in my article itself.

      Section 124 A does not subvert free speech and due criticism of the Government. Please be clear about it.

      At the cost of repetition, I will humbly remind you that Explanations 2 and 3 of Section 124A clearly exempt fair and meaningful criticism of the Govt. from the purview of the offence of sedition. (Please see article for details). So no one can be charged of sedition for his fair criticism of the Govt. of the day. Or else every day so many persons who write, debate and speak against the Govt. would have filled the jails. That's not the law. I think there are enough examples of free debates and fearless criticism of the Govt. that we see everyday, particularly in the print and electronic media. None of them have been booked so far u/s 124 A.

      So far as the meaning of the expression " disaffection for the government " and the term "disapprobation" are concerned the article has also dealt with it. However I'll re state it again.

      "Disaffection means a feeling contrary to affection, in other words, dislike or hatred. Disapprobation means simply disapproval. It is quite possible to disapprove of a men's sentiments or action and yet to like him. The meaning of the two words is so distinct that I feel it hardly necessary to tell you that the contention of Mr. Jackson (the lawyer) cannot be sustained. If a person uses either spoken or written words calculated to create in the minds of the persons to whom they are addressed a disposition not to obey the lawful authority of the Government, or to subvert or resist that authority, if and when occasion should arise, and if he does so with the intention of creating such a disposition in his bearers or readers, he will be guilty of the offence of attempting to excite disaffection within the meaning of the section though no disturbance is brought about by his words or any feeling of disaffection, in fact, produced by them. It is sufficient for the purposes of the section that the words used are calculated to excite feelings of ill will against the Government and to hold it up to the hatred and contempt of the people, and that they were used with the intention to create such feeling."

      So you see Sudipto, a careful understanding of the expression "diasaffection of the Govt." will make it clear that fair and bona fide criticism of the Govt. functioning is always exempt from the definition of sedition.


      The Police has probably made a mistake by arraigning Aseem u/s 124A for his cartoons. The charge doesn't fit the act. That's all I may say in my limited knowledge of the facts and evidence of the case. But ofcourse the Court will decide the matter now.

      And the brouhaha is not being made by the Govt. but by the media. The media has suddenly seen gold in this issue and is holding on to it. So if anybody is liable to be blamed for diverting attention, it should be the media. But then that's my opinion.

      Thanks for reading the article Sudipto and sharing your point of view.

      Regards,
      Anupam

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  14. While looking up the meaning of the word sedition on the internet, I found that –

    “Sedition is the stirring up of rebellion against the government in power. Treason is the violation of allegiance to one's sovereign or state, giving aid to enemies, or levying war against one's state. Sedition is encouraging one's fellow citizens to rebel against their state, whereas treason is actually betraying one's country by aiding and abetting another state. Sedition laws somewhat equate to terrorism and public order laws.”

    And this cartoonist doesn’t seem to be guilty as per the above definition of sedition. But as you rightly pointed out, it is for the law to decide if he is guilty or not.

    But I also came across the “Prevention of Insults to National Honour Act, 1971”, according to which,

    “The Prevention of Insults to National Honour Act,1971 is a law in India prohibiting desecration of or insult to the country's national symbols, including the flag, constitution and anthem.”

    Now, anyone may or may not have objection to whatever this cartoonist made, he still can be tried according to the above Act.

    Of course the media is bent on conducting trials by themselves and it happens on almost every news channel. But when this cartoonist was on the Newshour debate, he was shouting himself hoarse that if such cartoons can be drawn in western countries including the USA, why can’t they be drawn in India.

    Just the other day, I saw American tennis player Andy Roddick wearing shows with the American ‘Stars and Stripes’ as he played in the US Open. As far as I can guess, he didn’t mean to insult his national flag.

    But I also remember how Indian tennis player Sania Mirza was accused of disrespecting the Indian flag when she was seen sitting with her legs kept close to the Indian flag. Also, tv presenter Mandira Bedi was accused of the same when she was seen wearing a saree with the colors of the Indian flag on it. I wonder if they intended to dishonor the Indian flag.

    Of course, the charge of sedition appears absurd according to what’s mentioned in the law. But after seeing and hearing this cartoonist on Arnab Goswami’s debate, I’m sure that this guy didn’t deserve such a charge on him. In fact, he should have been safely deposited in a mental asylum.

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    1. Thank You for reading my article, Sobhit and sharing your whole insight on this issue.

      See, no matter what the generic understanding / definition of 'sedition' is, an accused will be tried only under the definiton prescribed in the law of the land, in our case Section 124A, IPC. Having said that, in my (personal) legal opinion, Aseem's carttoning cannot be termed as sedition, simply because they do not seem to be calculated to create in the minds of the persons to whom they are addressed a disposition not to obey the lawful authority of the Government, or to subvert or resist that authority, if and when occasion should arise. And this is the test as per the established law of our land, as interpreted by the Hon'ble Supreme Court.

      As far as insulting his actions being prosecuted under The Prevention of Insults to National Honour Act,1971 you may have raised a valid point there.

      I too saw his interview / debate on Newshour yesterday. and it seemed like everyone, especially Arnab Goswami was hell bent to impose his opinions about the whole issue on Aseem. It was a good thing that the latter did not take it lying down.

      And of course as I have already mentioned, the charge of sedition doesn't fit the act.

      Keep visiting, Shobhit

      Regards,

      Anupam

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  15. Nice to raed your views..very informative on a lot of aspects i didnt know...

    These are simply scare tactics, and/or meant to divert attention. I sincerely hope it fails, and the people behind it exposed. It's really sad - cannot blame the government - ultimately, it's only as good as the people.

    came across a poster where in Madurai, a congress party worker has put up congress leaders on the national emblem!!

    Actually the ministers amend the constitution according to their requirement but not according to the requirement of people. This all should have to be stoped otherwise a day will come when democracy will exist only in words but it will nothing to do with people.

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    1. Thanks 'TLP'.

      And I totally agree with your views.

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  16. I was totally confused about the whole issue - which is right, who is right....
    Now, I have got a clear picture after reading your post and the feed backs.

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    1. I'm glad you are clear on facts and law now.

      Thanks for reading Ranjani ji

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  17. Sometimes you wonder what happened to the freedom.

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  18. Oh thanks.! Good to read about the legal mumbo jumo.! following u now.! take care.! keep writing.!

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    1. Alright Rinzu. Welcome aboard.

      Glad to have you along.

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