If I remember it right, the Tamil Nadu legislature had jailed or was about to jail The Hindu’s journalists, for breach of privilege. The media was incandescent with rage. The Indian Newspaper Society called a session where a couple of editors and a couple of other people spoke.
MJ Akbar said something about how The Hindu’s reputation would save it. I spoke angry words about how sub-clauses in India’s laws violated the Universal Declaration of Human Rights.
A lawyer, the last man to speak, said The Hindu should fight it in court and cited some laws and some judgments. I cannot remember the name of that lawyer and reports of that event name only Akbar and me.
N Ram, who was then editor of the paper, summed up. Though he thanked all of us, he said he would take the advice of that lawyer. The fact is that the last few years have shown that he was quite right. The trend in India is generally towards liberalism and a softening of laws and their application. However, this has not come from the government. It is the courts and the noise of the media that has made it possible.
When the cartoonist Aseem Trivedi was arrested recently for showing India’s parliament as a commode, the Bombay High Court was angered by the police’s registration of someone’s complaint. “Why didn’t you apply your mind before charging him with sedition and arresting him? Today you arrested a cartoonist. Tomorrow it will be a filmmaker or a screenplay writer. We live in a free society and enjoy freedom of speech and expression. Sedition is a pre-independence [law],” Justices DY Chandrachud and Amjad Sayyed, said, according to a report in The Hindu.
The fact is that all of our laws are pre-independence laws, the Indian Penal Code (IPC) having been written by Macaulay in the 1850s. It is the law that is to blame, not the police.
The judges added: “You cannot arrest anyone on frivolous grounds. You arrest a cartoonist under sedition and detain and breach his liberty. Have you read 124A [of the IPC]?”
I have, and it reads: “Whoever by words, either spoken or written, or by signs, or by visible representations, 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 ...”
I am not sure what the police did wrong here. They acted per the law. My copy of the IPC, written by Ratanlal and Dhirajlal and annotated by Chandrachud and Manohar, indicates that the police were right to register the offence.
The court “underlined the need for laying down parameters for invoking Section 124”.
This is important because the law is sweeping and can be deployed carelessly. For instance, 8,000 people have been charged with sedition for protesting against a nuclear power station in south India. Earlier this year, my journalist friends at the Times of India, Bharat Desai and Prashant Dayal, had charges of sedition dropped against them. The two men had been booked by Ahmedabad’s police commissioner OP Mathur for writing against him.
Homosexuality was decriminalised in India this year because of strong media support and liberal courts. The government only mumbled its assent. Bring such things to court, as Trivedi did, and they will be exposed.
In Pakistan, someone has challenged the three-year extension given to Army Chief Ashfaq Parvez Kayani. It is possible and perhaps likely that this may not go anywhere. But that’s all right. The thing about such action is that it forces people to take a position.
Continued and aggressive legal action in support of freedom, as that unnamed lawyer said, is the right way forward for us.
Published in The Express Tribune, September 16th, 2012.
COMMENTS (10)
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@varuag
Agree with @Lala Gee 100%. Great post. Hope to read more from you in future.
@varuag:
Excellent comments. I saw you in this forum for the first time. You're welcome and please write more often.
@Author:
I like your mild style of positive criticism unlike Pakistani liberals' nonconstructive demonizing of anything bad. Good piece.
@sid: I understand that Mr. Patel has strong opinions about certain aspects and he is pretty much entitled to them just as you are to your opinions. But name-calling or bracketing to my mind is not the right approach. If someone is pro or anti a particular ideology, party, person please don't visualize all his opinions from the colored spectacle of his predisposed ideology.
“I do not want to stay in a house with all its windows and doors shut. I want a house with all its windows and doors open where the cultural breezes of all lands and nations blow through my house. But I refuse to be blown off my feet by any.” - Mahatma Gandhi
One has to have the patience to endure the hard facts that are confronting entire South Asia. I fail to comprehend our inability to suffer the criticisms. Is that any different from the powers that be who invoke sedition on KKNPP, jal satyaghraha or trivedi case. It is precisely the intolerance among-st us that gives a fillip to the political masters who willing exploit the many fault-lines present in society. Why else can the pride of a Marathi Manoos whip up frenzy in cosmopolitan Bombay ? Oh wait a second, its not Bombay anymore. You know what, SUE ME !
@gp65: sub-continental history is rich, dynamic and interesting. But most of us are spoon-fed a parochial jingoistic version of history that is tailored to suit our palate. Every great leader is human but we have elevated them to pedestals. Forget criticism even questioning is not permitted where our "sacred cows" are concerned. On top of that we are hopelessly argumentative and impishly stubborn. This when the whole edifice of our opinions is generally based on flawed, piece-meal reading of history.
Wrong opinion in a wrong newspaper and may be to a wrong crowd.
The author should read the editorial written by ET "Insulting ones own faith"
However, there is no reason to preach it to the choir and in this context the opinion may stir up the passion and hope of those who are sidelined in PAK on other matters.
The effort is worth it.
Judges also come in all forms, Sir. The judge who gave lectures (in 2012) about how women should suffer beatings (and now removed from the family court) also comes from the same judiciary. We have seen countless pontifications of dress code, womens role in society and whatever other biases such judges hold come through their judgements. Fortunately, no nutter has become powerful enough to do all this from the Supreme Court. But corruption in judiciary is a fact. On his day, even a Lalu-Mulayam can be progressive.
@varuag: Thank you for your informed post. DId not know some of the things you listed.
All this optimism boils down to the overall stature and confidence of people in judiciary. Over the last couple of years judiciary has usurped all powers of appointment itself, thereby making the Indian Supreme Court one of the most powerful in the world. Its a dangerous situation and instances of Dinakaran, Sen, Balkrishnan have besmirched the reputation if not soiled it altogether. The Judicial Standards and Accountability Bill is probably going to help but appointments still remain a critical issue with no standard checks-and-balances.
Overall the Higher judiciary is pretty progressive and the obiter dicta are generally pretty extensive but it helped when CJI's like Kapadia regularly gave sermons to rein in the judiciary. The shifting sands of judicial activism and judicial over-reach have to move gradually if at all.
B. G. Tilak was arrested during Home Rule League agitation in 1916 but M. A. Jinnah secured his acquittal at that time. Tilak pressed home to advantage to conclude that Home Rule League now had legal sanction. That is precisely the way societies move forward and consign to flames the coercive nature of states. What happened in case of Mr. Trivedi has some parallels when he called for repeal of sedition laws ................
good article for a change.