As the muz­zling of lawyers and jour­nal­ists in Kash­mir and Jamia Milia civil rights ac­tivists in Delhi con­tin­ues un­abated through dra­con­ian laws of sedi­tion and UAPA, Dal Khalsa pres­i­dent Harpal Singh Cheema writes an Open Let­ter to In­dian par­lia­men­tar­i­ans with the “hope that you will speak against in­jus­tice and witch-hunt­ing.” Con­demn­ing the role of the BJP gov­ern­ment play­ing tru­ant in such dif­fi­cult times of the pan­demic, he fears that this is sys­tem­at­i­cally lead­ing to a re­li­gious di­vide in such dif­fi­cult times, frac­tur­ing the In­dian polity.

DEAR MEM­BER PAR­LIA­MENT: WA­HE­GURU JI KA KHALSA WA­HE­GURU JI KI FATEH! The in­dis­crim­i­nate (mis)use of sedi­tion and Un­law­ful Ac­tiv­i­ties Pre­ven­tion Act (UAPA) against lawyers, stu­dents, jour­nal­ists and rights de­fend­ers has put ‘peo­ple’s free­dom’ in peril.

Per­turbed over the con­tin­u­a­tion of mis­use of these laws as a weapon to si­lence the dis­sent­ing voices and crit­ics of gov­ern­men­t’s di­vi­sive poli­cies, I write to you as ‘peo­ple’s rep­re­sen­ta­tives’ with a hope that you will speak against in­jus­tices and witch-hunt­ing.  While writ­ing to all par­lia­men­tar­i­ans, I am con­scious of the fact that the ma­jor­ity of you are part of the Gov­ern­men­t’s re­pres­sive de­ci­sions and those who sit on the op­po­si­tion benches have lent their “un­in­ten­tional” sup­port to it by re­main­ing silent.

The ac­tions of the pre­sent-day Gov­ern­ment, in ret­ri­bu­tion, have painted the grim pic­ture of In­tol­er­ant In­dia. The lat­est is book­ing of Delhi Mi­nor­ity Com­mis­sion chair­man Za­farul Is­lam Khan un­der sedi­tion charges by Delhi po­lice on May 1, days af­ter he posted re­marks about the per­se­cu­tion of Mus­lims in In­dia on his so­cial me­dia.

The Hindu cor­re­spon­dent Peerzada Ashiq, free­lance jour­nal­ist Gowhar Gee­lani and pho­to­jour­nal­ist Mas­rat Zahra — have been booked un­der these bad laws in Jammu and Kash­mir.

While the peo­ple are in the throes of an in­ter­na­tional cri­sis bat­tling the spread of coro­n­avirus, the rulers in Delhi are busy in tar­get­ing and fix­ing peo­ple of par­tic­u­lar re­li­gion and ide­ol­ogy, whom they feel are ‘threat to their Hin­dutva hege­mony’. Tak­ing un­due ad­van­tage of the coun­try­wide lock­down, the Gov­ern­ment has in­ten­si­fied its crack­down on peo­ple who stood stead­fastly against CAA+NPR+NCR.

The gross mis­use of these re­pres­sive laws is go­ing on brazenly by pow­ers that be. Peo­ple across the spec­trum have been booked un­der re­pres­sive laws un­der the pre­text of their in­volve­ment al­legedly in cow smug­gling, prais­ing Pak­istan cricket team on their vic­tory, re­fus­ing to chant Jan Gan Man or Bharat Mata ki Jai, op­pos­ing ab­ro­ga­tion of ar­ti­cle 370 & amend­ments in the Cit­i­zen­ship Act and de­plor­ing rights vi­o­la­tion in Kash­mir.

The month of April 2020 has turned out to be the month of ‘sedi­tion and UA­PA’. Cases un­der these laws wit­nessed a surge and the tar­gets were anti-CAA pro­test­ers. Delhi po­lice have booked Meeran Haider and Safoora Zargar from Jamia Milia Is­lamia Uni­ver­sity and Umar Khalid of Jawa­har­lal Nehru Uni­ver­sity (JNU) un­der UAPA in con­nec­tion with com­mu­nal clashes in Delhi. Safoora, 27-year old re­search scholar is in the sec­ond trimester of her first preg­nancy. Af­ter Khalid, the pres­i­dent of Jamia Mil­lia Is­lamia Alumni As­so­ci­a­tion Shifa-ur-Rehman has also been ar­rested un­der UAPA in con­nec­tion with the same case. An­other JNU PhD scholar Shar­jeel Imam, who was in cus­tody since Feb 16 un­der sedi­tion charges for al­legedly giv­ing a speech at AMU, has now been booked un­der UAPA in con­nec­tion with two cases of vi­o­lence at Jamia Mil­lia Is­lamia on De­cem­ber 13 and 15.

An­other stu­dent ac­tivist Gulif­sha, 28 is lan­guish­ing in New Del­hi’s Ti­har Jail for the last few weeks un­der anti-ter­ror law UAPA. Her de­ten­tion is part of a se­ries of ar­rests in con­nec­tion with com­mu­nal clashes in Delhi.

In ad­di­tion to these ar­rests, around 50 stu­dent ac­tivists, who have ex­er­cised their de­mo­c­ra­tic right to protest against the dis­crim­i­na­tory CAA are on the radar of Delhi po­lice in­clud­ing the leader of All In­dia Stu­dents’ As­so­ci­a­tion Kawal­preet Kaur. They are fac­ing both phys­i­cal and men­tal ha­rass­ment.

Sim­i­larly, three jour­nal­ists — The Hindu cor­re­spon­dent Peerzada Ashiq, free­lance jour­nal­ist Gowhar Gee­lani and pho­to­jour­nal­ist Mas­rat Zahra — have been booked un­der these bad laws in Jammu and Kash­mir.

There are some com­mon­al­i­ties in both cases. The po­lice in J&K and Delhi are di­rectly con­trolled by the Union Home Min­istry. The sec­ond di­men­sion is the tim­ing of all the FIRs. And thirdly, all the ar­rested or booked per­sons are Mus­lims.

Re­gret­tably, Jamia and JNU stu­dents have been charged un­der re­pres­sive laws for con­spir­ing to in­cite the com­mu­nal vi­o­lence in North­east Delhi in which 53 peo­ple were killed be­tween Feb 23 and 26 while or­ga­niz­ing the anti-CAA protests. They have been framed af­ter two months of the in­ci­dent. It’s a clear case of the state in­dulging in witch-hunt­ing, while the real per­pe­tra­tors, in­sti­ga­tors and con­spir­a­tors of Delhi vi­o­lence are en­joy­ing state pa­tron­age.

Apart from these cases, on April 10, the Pun­jab Po­lice booked Gur­pat­want Singh Pan­nun and his out­lawed ‘Sikhs for Jus­tice’ (SFJ) un­der UAPA for “sedi­tious au­to­mated calls aimed at in­sti­gat­ing the peo­ple against the state gov­ern­ment. On April 14, two civil rights ac­tivists Gau­tam Navlakha and Anand Tel­tumbde sur­ren­dered be­fore NIA on the or­ders of SC. They were booked un­der UAPA for in­cit­ing vi­o­lence at Bhima- Ko­re­gaon vil­lage on Jan 1, 2018, in which seven ac­tivist’s lawyers and writ­ers are al­ready ar­rested by the Pune po­lice.

The voices to re­peal the sedi­tion law and amend the re­pres­sive pro­vi­sions of the UAPA has gained cur­rency from var­i­ous quar­ters in re­cent times. From Amnesty In­ter­na­tional to Ed­i­tors Guild of In­dia to civil so­ci­ety to the aca­d­e­mics, jour­nal­ists and ed­i­tors work­ing in dif­fer­ent parts of the world, all have unan­i­mously con­demned the witch-hunt­ing of Kash­miri Jour­nal­ists and anti-CAA pro­test­ers by the In­dian gov­ern­ment. Amnesty In­ter­na­tional has termed the re­cent ar­rests as ‘at­tempts by the In­dian au­thor­i­ties to crim­i­nalise the protest’.

Sedi­tion law dur­ing British Times: B.G. Tilak was tried and con­victed twice un­der sedi­tion in 1897 and 1908 for spread­ing dis­af­fec­tion against the gov­ern­ment. Maulana Mo­ham­mad Ali, Maulana Shaukat Ali and Shri Shankaracharya were tried jointly in 1921 at Karachi for sedi­tion. In 1922, M.K.Gandhi had been charged un­der this sec­tion for ar­ti­cles he had writ­ten in his weekly pub­li­ca­tion ‘Young In­dia’. In his fa­mous trial that lasted for 100 min­utes, Gandhi de­scribed Sec­tion 124-A as the “prince among the po­lit­i­cal sec­tions of the In­dian Pe­nal Code”. In 1929, Gandhi called for a coun­try­wide ag­i­ta­tion de­mand­ing the re­peal of the Sec­tion 124-A. In­dia that reveres Gandhi as its ‘fa­ther’ has failed to ho­n­our his words and scrap the law from statute even af­ter 70 years of adop­tion of the In­dian Con­sti­tu­tion.

In Bal­want Singh v/​s State of Pun­jab case in 1995, the SC says: “Rais­ing slo­gans of Khal­is­tan Zind­abad or Raj Karega Khalsa a cou­ple of times by two in­di­vid­u­als with­out any­thing more did not con­sti­tute any threat to the GoI”.

TADA-POTA and then UAPA: One hun­dred and fifty years af­ter the dra­con­ian law of sedi­tion was in­tro­duced in the In­dian Pe­nal Code in 1870- as a tool of colo­nial dom­i­na­tion and ter­ror- it is be­ing lev­elled in in­de­pen­dent In­dia at the alarm­ing rate by all suc­ces­sive gov­ern­ments to sti­fle dis­sent and ha­rass dis­si­dents. In 2004, amidst pub­lic out­cry against the mis­use of the Pre­ven­tion of Ter­ror­ism Act (POTA), the gov­ern­ment re­pealed it but ma­jorly amended the Un­law­ful Ac­tiv­i­ties (Pre­ven­tion) Act at the same time. Af­ter amend­ments in 2008 and 2012, the UAPA was turned into a veiled new avatar of TADA and POTA.

The amend­ments in UAPA, 2019 em­pow­ered the rul­ing gov­ern­ment, un­der the garb of curb­ing ter­ror­ism, to im­pose an in­di­rect re­stric­tion on the right of dis­sent which is detri­men­tal for de­vel­op­ing de­mo­c­ra­tic so­ci­ety. Sec­tion 35 of the Act also vi­o­lates the right to rep­u­ta­tion — an in­te­gral part of the right to life, by terming or tag­ging an in­di­vid­ual as ‘ter­ror­ist’ even be­fore the com­mence­ment of trial.

The Supreme Court of In­dia on sev­eral oc­ca­sions has set the record straight by stat­ing that ‘dis­sent is not sedi­tion’. How­ever, the pre­sent-day gov­ern­ments and the po­lice have failed to im­ple­ment the SC guide­lines in let­ter and spirit.

IS THERE A CURE FOR BAD LAWS? WILL IT BE RE­PEALED? In­dia is slap­ping sedi­tion charges against dis­senters at a time when the dra­con­ian law is be­ing ei­ther scrapped or made a dead let­ter in most mod­ern con­sti­tu­tional democ­ra­cies namely USA, UK, New Zealand, Aus­tralia.

In In­dia, the po­lice, politi­cians and the pub­lic have for­got­ten the SC’s in­ter­pre­ta­tion that rais­ing slo­gans or say­ing through words by it­self does not con­sti­tute sedi­tion.  In a land­mark judge­ment in 1962 in the case of Kedar Nath Singh v/​s State of Bi­har, the Supreme Court held that a cit­i­zen has a right to say or write what­ever he likes about the gov­ern­ment or its mea­sures, by way of crit­i­cism or com­ment, so long as he does not in­cite peo­ple to vi­o­lence.

In Bal­want Singh v/​s State of Pun­jab case in 1995, the SC says: “Rais­ing slo­gans of Khal­is­tan Zind­abad or Raj Karega Khalsa a cou­ple of times by two in­di­vid­u­als with­out any­thing more did not con­sti­tute any threat to the GoI”.

Un­for­tu­nately, the po­lice and even trial court have of­ten failed to ap­pre­ci­ate the line set by the SC. The apex court and high courts have set aside sedi­tion charges time and again de­pre­ci­at­ing the man­ner in which the po­lice had filed an FIR. Even the FIR un­der 124-A filed by Am­rit­sar po­lice against 22 mem­bers of the Dal Khalsa in June 2005 for un­der­tak­ing a march against army at­tack on Dar­bar Sahib was quashed by Pun­jab and Haryana High Court in Oct 2012.

The Supreme Court of In­dia on sev­eral oc­ca­sions has set the record straight by stat­ing that ‘dis­sent is not sedi­tion’. How­ever, the pre­sent-day gov­ern­ments and the po­lice have failed to im­ple­ment the SC guide­lines in let­ter and spirit.

In Sep­tem­ber 2012, two Sikh Na­tion­al­ist lead­ers Kul­bir Singh Bara­pind and Dal­jeet Singh were booked un­der UAPA on friv­o­lous charges in two sep­a­rate cases in Pun­jab. Both were ac­quit­ted by the trial court in Sep­tem­ber 2014 and May 2016 re­spec­tively. How­ever, the mo­tive of the po­lice was to keep them in jail as long as pos­si­ble only to set­tle scores and teach them lessons for hold­ing in­de­pen­dent be­lief and thoughts.

The voices to re­peal the sedi­tion law and amend the re­pres­sive pro­vi­sions of the UAPA has gained cur­rency from var­i­ous quar­ters in re­cent times. From Amnesty In­ter­na­tional to Ed­i­tors Guild of In­dia to civil so­ci­ety to the aca­d­e­mics, jour­nal­ists and ed­i­tors work­ing in dif­fer­ent parts of the world, all have unan­i­mously con­demned the witch-hunt­ing of Kash­miri Jour­nal­ists and anti-CAA pro­test­ers by the In­dian gov­ern­ment. Amnesty In­ter­na­tional has termed the re­cent ar­rests as ‘at­tempts by the In­dian au­thor­i­ties to crim­i­nalise the protest’.

Here, I would like to bring into your no­tice the sug­ges­tion cum rec­om­men­da­tions made by for­mer Law Min­is­ter and Law Com­mis­sion in this re­gard. Law Com­mis­sion, headed by for­mer Supreme Court judge, Jus­tice B.S. Chauhan, rec­om­mend­ing the Govt in April 2018 to re-think or even re­peal the pro­vi­sion of sedi­tion (Sec­tion 124A) from the In­dian Pe­nal Code. In the wake of the ar­rest of so­cial ac­tivist Bi­nayak Sen, the then Law min­is­ter Veer­appa Moily in April 2011 an­nounced that there was a need to re­view the sedi­tion law.

Will the In­dian par­lia­men­tar­i­ans ever do away with these dra­con­ian laws just like they did with pre­vi­ous anti-ter­ror laws like TADA and POTA?

In the end, I would like to quote French philoso­pher Voltaire: “If you want good laws, burn those you have and make new ones.”

We hope and pray for good health and safety for all in these ter­ri­ble times of COVID-19 pan­demic.

Yours sin­cerely

Harpal Singh Cheema
Pres­i­dent, Dal Khalsa