HELLO U.P. POLICE – CRITICISM IS NOT SEDITION
Uttar Pradesh Police few days back have registered an FIR against Congress IT Cell Head Ms. Divya Spandana for twitting an offensive photo of Prime Minister of India Shri Narendra Modi wherein it is shown that Shri Narendra Modi is painting his own portrait and the Word “Chor” is written on the forehead of Prime Minister Modi. The FIR has been registered under Section 67 of Information Technology Act, 2008 which provides “Punishment for publishing or transmitting obscene material in electronic form” and Section 124 A of Indian Penal Code dealing with “Sedition”. The photograph of Prime Minister Modi on the twitter was posted by Ms. Divya Spandana in the light of allegations of Congress Party against the Prime Minister Modi alleging corruption and favouritism in the Rafale Fighter deal.
Before proceeding further on the legality of the FIR, one thing which is very clear and apparent on the face of it is the downward trend of Indian Political discourse. The Politicians, cutting across political lines, have forgotten the civility while attacking each other democratically. In fact a careful perusal of political discourse will reveal that Politicians have degraded themselves and their opponents without any demur. The political opposition has become dirtier and abusive wherein both Ruling as well as Opposite Parties are to be blamed for this downfall.
But then, I ask myself whether the photograph and the writing on the photograph (without justifying it) constitutes a criminal offence under Section 67 of Information Technology Act, 2008 and Section 124A of Indian Penal Code ? Do I disagree with the entire approach of Uttar Pradesh Police? Though the said photograph along with the writing is abusive, but certainly being abusive, does not make you seditious. According to Black’s Law Dictionary, abuse means, “A departure from a legal or reasonable use; misuse” or “physical or mental maltreatment”. On the other hand, dissent means, “A disagreement with a majority opinion” and “holding or expression of opinion at variance with those commonly or officially held. Before proceeding further let us see the both the sections in dispute.
“Section 67 of The Information Technology Act, Section 67 Punishment for publishing or transmitting obscene material in electronic form. – Whoever publishes or transmits or causes to be published or transmitted in the electronic form, any material which is lascivious or appeals to the prurient interest or if its effect is such as to tend to deprave and corrupt persons who are likely, having regard to all relevant circumstances, to read, see or hear the matter contained or embodied in it, shall be punished on first conviction with imprisonment of either description for a term which may extend to three years and with fine which may extend to five lakh rupees and in the event of second or subsequent conviction with imprisonment of either description for a term which may extend to five years and also with fine which may extend to ten lakh rupees. ”
“Section 124A of The Indian Penal Code:
124A. Sedition. – 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, 10 [***] the Government established by law in 11[India],12 [***] shall be punished with 13 [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.”
A bare perusal of both the section in the light of issue involved concludes that Section 67 of IT Act is derived from the Act which is allegedly seditious. Thus in simple terms, a seditious act is one where photo of PM Modi was published on twitter. Thus the alleged offence is the picture along with word written with the picture and then uploading it on the twitter page. Thus allegation of sedition is corner stone and therefore let us understand if the said act amounts to Sedition ? If the act is not sedition as provided u/s 124A, then even S-67 of IT Act fails in the present case.
If literal reading of Section 124A dealing with Sedition is made out, then in that case, any opposition to any mass leader will automatically become Sedition and this can be beginning of the end of democracy. In fact, the moment you make a criticism of a mass leader, which is not liked by his/her follower, then certainly, it can lead to disaffection and can cause excitement against the mass leader. However, dissent, as provided in Section 124A of The Indian Penal Code, can only be against the Government Authorities and by the yardstick of current FIR, anything and everything against any of the ruling parties, may amount to dissent. After all in the present case, the act of criticism is against an office bearer of government. Therefore, the question, whether the act of portraying Prime Minister the way it was portrayed by Congress IT Cell Head Divya Spandana is an offence under Section 124A ?
It is to be noted that right to speech and expression is a fundamental right and time and again the Hon’ble Supreme Court of India has held that this right needs to be strongly protected. In fact, on number of occasions, the Hon’ble Apex Court has held that ‘making a strong criticism of the Government is not even defamatory, let alone seditious’. The act on the part of Congress IT Cell Head Divya Spandana by writing the word “Chor” on the forehead of Prime Minister on the twitter account is ramification of what the Congress Leaders are arguing; day in day out, in the political phase. No doubt, the Hon’ble Apex Court has held that Section 124A of the Indian Penal Code has constitutional validity. However, the Hon’ble Apex Court has also added on number of occasions that one person can be prosecuted under Section 124A of the Indian Penal Code only if his acts caused incitement to violence or intention or tendency to create public disorder or cause disturbance of public peace. These ingredients are missing as far as the subject matter in hand is concerned. In fact, these ingredients are missing in entirety in the present case and it is necessary that such ingredients have to be strictly complied with in each and every case, Otherwise, it may lead to a situation where even a genuine, bonafide opposition may not find its place. Let us not forget that a citizen has a right to say or write whatever he likes about Government or its measures, whether it is by way of a criticism or comment. However, what is important is that such criticism should not incite people to violence against the Government established by law or with the intention of creating public disorder.
The Offence of Sedition is characterized in Chapter VI of Indian Penal Code which deals with offences against the “State”. The law to that effect is colonial era law and was meant to protect the imperial powers from any criticism and certainly this was the section, which was used, misused and abused maximum to curtail the freedom movement by the colonial power. The same section cannot be used to silence the public information or information/criticism of a major political party though it may not be in a good taste. Let’s not forget that Article 19 (1) (a) of the Constitution, which talks about freedom of speech and expression is a fundamental right. This guaranteed right is subject to the right of the Legislature to impose reasonable restrictions. However, the said right talks about the expression “Government established by law” and thus the critics of PM Shri Modi cannot be dissent u/s 124A even if it is defamatory.
A careful perusal of the view of Hon’ble Supreme Court of india over the years reveals that to attract Section 124A of The Indian Penal Code, it is necessary that the Act should have the effect of subverting the Government by bringing that Government into contempt or hatred, or creating disaffection against it and thus writing or saying something against the Prime Minister, though defamatory, cannot be called dissent. In other words, any written or spoken words, etc., which have implicit in them the idea of subverting Government by violent means, which are compendiously included in the term ‘revolution’, have been made penal by the section in question. But the section has taken care to indicate clearly that strong words used to express disapprobation of the measures of Government with a view to their improvement or alteration by lawful means would not come within the section. Similarly, comments, however strongly worded, expressing disapprobation of actions of the Government, without exciting those feelings which generate the inclination to cause public disorder by acts of violence, would not be penal. In other words, disloyalty to “Government established by law” is not the same thing as commenting in strong terms upon the measures or acts of Government, or its agencies, so as to ameliorate the condition of the people or to secure the cancellation or alteration of those acts or measures by lawful means, that is to say, without exciting those feelings of enmity and disloyalty which imply excitement to public disorder or the use of violence.
It’s time Uttar Pradesh Police focuses on genuine grievances of its people and protecting the life, property and liberty of its people, both from anti-social elements as well as fake encounter, rather than making an issue out of political mudslinging. Somehow while writing this article I can’t forget the famous quote of Richard j. Daley – ‘The Police are not here to create disorder, they are here to preserve disorder’.
September 2018
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