#India-That Seditious Mango Man #draconianlaws #mustread


 

 | 19 OCTOBER 2012  | , By Gautam Patel at http://www.prisonerofagenda.com/

The sedition law in India is outdated, ineffective and abused; it needs to go, and citing the ‘Maoist/Naxalite problem’ is no answer.

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Who’s the most seditious of us all?

A few weeks ago, a young cartoonist, Aseem Trivedi, was arrested on grounds of ‘sedition’. He was later granted bail by the Bombay High Court and, in short order, became the focal point of protests against the sedition law. Section 124-A of the Indian Penal Code, it was said, is a relic of the British Raj, ‘outdated’ and has no place in modern society. Some pointed out that few countries today have such a law, and no comparable democracy does. It was abolished in England some years ago, and in the USA has been much diluted by courts.

The Curious Case of Binayak Sen by Dilip D'Souza

Trivedi isn’t the only one to have faced this law. Dr Binayak Sen was actually convicted under it, and as my friend Dilip D’Souza points out in his new book, The Curious Case of Binayak Sen, that judgement is wholly incorrect. The book isn’t a biography of Dr Sen, or even a legal polemic about the decision — it doesn’t claim to be either. What it does, and does with brilliant concision and accuracy, is demonstrate how hollow the case against Sen was.

The charge of sedition was central to Dr Sen’s case. He was accused of being a Maoist, and the evidence for this was, chiefly, that he carried three letters from a person in jail to persons outside — a charge of sedition based on, as D’Souza says, “being a glorified postman”.1 The case against Trivedi is that his cartoons — which are scathing but not terribly funny, and, despite the government’s silly attempt to block and ban are still available on the Internet — criticise, mock and deride the government. In both cases, the accusations are of having acted against the government and this is equated with the “state”. In neither case was there any evidence of incitement to violence. Were Anna Hazare and the India Against Corruption movement not “exciting disaffection” towards “the government”? D’Souza asks. Alarmingly, he then emphasizes his point by quoting from one of my articles of July 2011, and then says this:

“This writer certainly sounds contemptuous of his lawfully established government: it is in fact how he wants to sound. He wants to ‘excite disaffection towards the government’. So has this writer committed sedition? Can he be charged with it?”

I certainly hope not.

And this is the heart of the problem. The ‘government’ is not the ‘state’; the government is the party that is presently voted into power and which runs the administration. The state is the nation, and the concepts of statehood, nationality and national identity cannot be conflated with the government. Governments come and go, though some stick on like limpets when they ought to have gone a long time ago. The state remains, and endures; and the state endures not because of any particular government, but despite it. The preamble to our Constitution opens with the words, “We, the people of India”, not “We, the people presently governed by [insert name of political party]”. And sedition is in the section of the Penal Code that deals with offences against the State; it is no offence to criticize a political party or an administration.

Section 124-A does not make this distinction explicitly. It says:

“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 …”

The crucial parts here, of course, are the phrase “the government by law established” and the words hatredcontempt, and disaffection. Does the phrase refer to the party in administration, or does it refer to the nation and the state? Do the words include mere criticism as well? If it refers to a particular party or this or that government, and every form of criticism, then we have a very real problem, because most of us would then be in jail for a very long time. The most critical problem is that read literally the section runs into a head-on collision with Articles 19(1)(a) and 19(2) of the Constitution which deal with freedom of speech. Article 19(2) places limits on the right of free speech; but it does not use the word sedition. If the right to free speech cannot be curtailed on the ground that it is seditious, then making it an offence violates the right to free speech.

The conflict between the section and the constitutional guarantee of free speech was resolved by a five-judge bench of the Supreme Court in 1962 in Kedar Nath Singh v State of Bihar, in which the constitutionality of S.124-A was challenged.2 Written with exceptional clarity, the Supreme Court judgement traces the long and convoluted history of the law, and the constitutional provisions in relation to free speech. There are many previous cases of relevance to both aspects: the trial of Tilak for instance, and the cases involving free speech. The Court saw that if mere criticism of administration constituted an offence, then the section was clearly unconstitutional. It analysed the three ‘explanations’ that appear below the section, and held that to resolve the conflict, the sedition law must be read to mean that mere criticism, however strongly worded, of administrative or other actions of the Government do not constitute sedition unless they incite violence against the state; and that a “Government established by law” is not the same as the administration. Therefore, to constitute an offence, the words must go beyond mere criticism of a particular party in power; they must attack the state and they must also incite or advocate violence. That, the court said, is the only way to balance both the section and the constitutional guarantee of free speech.

This is not the arcane stuff of law courts. This is a very real and material distinction, one that is vital to the protection of one of our fundamental freedoms. It is also one overlooked by the trial court’s judgement in Binayak Sen’s case and the authorities who arrested Trivedi. Their literal readings mean that everyone, from Arvind Kejriwal to the leader of the Opposition in Parliament and, indeed, the gentleman on television every night, Mr Arnab Goswami, are potentially guilty of ‘sedition’. Many of us are outraged by the antics of our political masters. Yet, we continue to believe in our state, and we do so despite its current administration, not because of it.

Five decades after the Supreme Court decision in Kedar Nath, it is time for Section 124-A to go? In 2010, when England abolished its law on sedition, the Justice Minister said that:

“Sedition and seditious and defamatory libel are arcane offences from a bygone era when freedom of expression wasn’t seen as the right it is today. Freedom of speech is now seen as the touchstone of democracy, and the ability of individuals to criticise the state is crucial to maintaining freedom. The existence of these obsolete offences in this country had been used by other countries as justification for the retention of similar laws which have been actively used to suppress political dissent and restrict press freedom.”

That is as true of India today as it was in England then. Even our own politicians,from Nehru in 1951 to Veerappa Moily in 2011, have said it has no place in our legal polity. You may or may not agree with Arundhati Roy’s views on Kashmir, but to respond by charging her with sedition is worse than an act of cowardice; unfortunately, stupidity is not a punishable offence.

But India also has this peculiar problem of armed insurgencies in vast areas within its borders, what we call the “Naxalite problem”. Whatever its causes and roots, it is an armed insurrection, and it is not directed at a particular administration, but every administration that functions in the name of India. It is undoubtedly subversive of an established order and incites rebellion. But the problem is far too complex, and the retention of the sedition law has not in any way solved it. It has only been misused in the very manner that England’s justice minister spoke of.

Take out the sedition law; is there not still sufficient strength in the law to punish those guilty of murder and armed attacks, whatever the colour of their political beliefs? Why should we continue to risk these assaults on our constitutional freedoms, risks that are not hypothetical, but are very, very real?

The Kedar Nath judgement quotes from Near v Minnesota, a 1931 US case widely regarded as the first great free press case.3 In the context of free speech and sedition, Near v Minnesota in turn quotes James Madison, the propounder of the First Amendment to the US Constitution, and its Bill of Rights advocating the constitutional guarantees of free speech.

“In every State, probable in the Union, the press has exerted a freedom in canvassing the merits and measures of public men of every description which has not been confined to the strict limits of the common law. On this footing the freedom of the press has stood; on this footing it yet stands. … It has accordingly been decided by the practice of the States, that it is better to leave a few of its noxious branches to their luxuriant growth, than, by pruning them away, to injure the vigour of those yielding the proper fruits. …Had ‘Sedition Acts,’ forbidding every publication that might bring the constituted agents into contempt or disrepute, or that might excite the hatred of the people against the authors of unjust or pernicious measures, been uniformly enforced against the press, might not the United States have been languishing at this day under the infirmities of a sickly Confederation? Might they not, possibly, be miserable colonies, groaning under a foreign yoke?

We so easily forget what we must most remember: Our nation’s Independence too was fought for and won by acts that all constituted sedition.

  1. D’Souza, Dilip; The Curious Case of Binayak Senpg 147 
  2. Kedar Nath Singh v State of Bihar, AIR 1962 SC 955 
  3. Near v Minnesota, 283 US 597 

 

Maharashtra sits on multiple irrigation acts, doesn’t bother to frame rules


 

 

Published: Saturday, Sep 1, 2012, 9:45 IST
By Sandeep Pai | Place: Mumbai | Agency: DNA

Farmer suicides in Maharashtra are more a routine than an exception. Everyone knows drought is to blame, but the state government, too, cannot shirk its responsibility.

While successive governments have created several irrigation acts, none bothered to frame rules. Absence of proper framework and foundation for water management precipitates drought conditions as irrigation projects suffer.

“If act is the soul, rules are the body,” Rajan Ksirsagar, a Communist Party of India (CPI) trade union leader, said. “It is impossible to implement an Act without rules. Strangely, governments have ignored this problem.”

The major irrigation acts are: Maharashtra Irrigation Act, 1976 (MIA), five Irrigation Development Corporation Acts (one each for five Irrigation Development Corporations, enacted between 1996 and 1998), Maharashtra Management of Irrigation Systems by Farmers Act, 2005 (MMISF) and Maharashtra Water Resources Regulatory Authority Act, 2005 (MWRRA).

Except MMISF, none of the others has any rules. MIA is the parent act because it is supposed to provide the state with a water management structure. “And implementing the other acts, IDC, MMISF, and MWRRA, depends on how MIA is implemented,” Pradeep Purandare, former associate professor, faculty of engineering, Water and Land Management Institute in Aurangabad, said.

Thirty-six years have passed since MIA was passed. None of the governments to date has formed rules pertaining to the act.If there are no rules for any of the acts, what does the government follow? Ancient rules framed in the British era, mainly Bombay Canal Rules, 1934, and Central Provinces & Berar [CP&B.]Rules are followed even today. These old rules are, expectedly, based on old acts like the Bombay Irrigation Act of 1879.

These old rules are incompatible with MIA since ground reality and water management practices have changed with time. In some cases, MIA has even repealed certain rules. l Turn to p3

An act is the intention of law describing the applicability, defining governing provisions, explaining fines and penalties and how it should be applied.

And rules are the prescribed methods and procedures in relation to any provision contained in the act. “Without any legally prescribed method, water management has become a big headache,” Purandare said.

It is well known that extensive areas in the Vidarbha belt and other areas are prone to drought. Since MIA has no rules, there is rampant water theft. Anybody can get away by stealing water because there is nothing “prescribed as per rules made under this act”. So, if someone is caught stealing, he/she cannot be prosecuted while farmers do not get any water.

What this means is MIA, a parent act, cannot be implemented. And this has a cascading effect on the other acts — IDC, MMISF & MWRRA. None can be implemented. “An unprecedented legal crisis would crop up if someone were to move court,” Purandare said.

The MWRRA Act has provisions to resolve disputes. But it is not in force because there are no rules pertaining to the act. “With no rules in place, guidelines to classify crime and punishment or how appeals should be processed are unclear,” Mandar V Sathe of the Resources and Livelihoods Group, Prayas,said.

Also, compensation to farmers in case of water scarcity is arbitrarily fixed because there isn’t any prescribed procedure for day to day functioning.

Ideally, if rules were in place then the quantity of water based on what crop is cultivated would be fixed. “Several instances have come to the fore, where farmers have lost out on compensation because there is no proper,” said CPI trade union leader Ksirsagar.

The absence of proper rules leads to confusion over responsibility and accountability. Canals maintenance is irregular because the powers and duties of a canal officer are not fixed. The MIA says a canal officer’s duties must be specified once rules are framed.

 

Report on All India Convention against Sedition and Other Repressive Laws


The convention notes with serious concern that the law used by the British Raj to suppress
the Freedom Movement remains part of our statutes. Its egregious use against all
forms of dissent and protest including peasant activists, environmental movement, women,
dalits, adivasis, minorities highlights how the laws on Sedition [in Section 124 A of the
Indian Penal Code as well as in other Laws in operation such as S 2(O) of the Unlawful
Activities (Prevention) Act or in any state level laws such as Criminal Law Amendment Act
or its equivalent] strike at the heart of democracy by curbing freedom of expression,
assembly and association and thus undermine constitutional democracy. In the name of
curbing ‘disaffection’ towards the government or ‘disloyalty’ to the Indian State, S. 124 A of
the IPC threatens to imprison a person for life, whether such disaffection, hatred or contempt
is created by words spoken or written or by signs or visible representation.
The convention is convinced that it is the legitimate right of every citizen to express his or
her opinion, expose the misdeeds and anti-people policies of the government or to even
disapprove of, express disaffection, question and condemn the present system, and even vent
out opinions which call for transforming State and Society. The convention considers respect
for difference of opinion, perspective or view as being a vital part of our struggle for
strengthening democracy. We, therefore, call for the repeal of S 124 A of the IPC and
dropping 2(o) from the UAPA as well as similar provisions from state level laws.
In view of the documented reports from all over India about the use of the sedition law and in
light of the fact that this law is absolutely incompatible with democracy, we, the participating
human rights organisations, as also concerned citizens across the country including
teachers and academics, independent professionals from the media, medical community,
lawyers, students, social movement activists and other grass roots social and political activists
demand that the Indian parliament immediately take necessary steps to repeal sedition law in
sec. 124A IPC and dropping 2 (o) from the UAPA as well as similar provisions from the state
level laws.
All the constituents members have been campaigning against draconian laws such as AFSPA,
UAPA and others and shall continue to campaign for their repeal. As a consequence of repeal
of sedition (S 124 A IPC, S 2 (o) of UAPA 1967 and Prevention of Seditious Meetings Act
1911 and other similar laws), all persons facing prosecution for offences made under these
provisions/laws should forthwith be dropped and those languishing in prisons should
immediately be released.
The convention declares the launch of an all India campaign against sedition and other
repressive laws.
PARTICIPANT ORGANISATIONS:
1. People’s Union for Civil Liberties (PUCL),
2. People’s Union for Democratic Rights (PUDR) Delhi,
3. Association for Protection of Democratic Rights (APDR) (WB),
4. Committee for Protection of Democratic Rights Mumbai (CPDR),
5. Human Rights Alert (Manipur),
6. National Alliance of People’s Movements (NAPM),
7. New Socialist Initiative,
8. Indian Social Action Forum (INSAF),
9. Human Rights Law Network (HRLN) ,
10. People’s Democratic Front of India (PDFI),
11. Agriculture Workers Union (Karnataka),
12. CHRI,
13. Peoples Union for Civil Rights (PUCR) (Haryana),
14. Asansol Civil Liberties Association (WB),
15. Coordination for Human Rights (COHR) (Manipur),
16. Committee for Peace and Democracy in Manipur (CPDM).

Downlaod full report here

Despair can lead people to disastrous path: Dr Binayak Sen


BANGALORE – Speaking at the 6th Henry Volken Memorial lecture at Indian Social Institute in Bangalore Dr.Binayak Sen said that the weak has to develop internal strength to do politics otherwise the wide spread despair can lead people to disastrous path.

He said that democracy is about governance by consent and it cannot be reduced to series of election. He further said that for this very purpose social mobilization has to be constant and running theme of democracy.

Citing the recent hunger death of tea workers in Bengal Dr.Sen said that these starvation death and tragic death like these need to be contextualized and must not be seen in isolation.

Referring to Prime Minister’s latest remark on Malnutrition as National Shame he asked that if Child Malnutrition is shame then what to say about Adult Malnutrition which is equally rampant and about which we never talk.

Dr.Sen also argued in his lecture that Famine is not about shortage of grain, citing the case of Bengal Famine of 1943 he said that there was not shortage of food grains and all those boats carrying the grains were savaged by direct orders from British Raj

He said that Body mass index is very low in this country and 37 % has BMI less than 18.5 and if 40 % of population has low BMI then it is referred as state of famine and we are near to it.

‘National grain consumption has seen a fall of 110 kg in from 880 kg to 770 kg’, he added. ‘This famine is getting worse’. ‘The incident of hunger death of those tea workers at Dhekla pal is just the tip of iceberg’ He said.

Referring to various resistance movements in the country he said that ‘resistance is only way for these community’. ‘The struggle against POSCO in Odisha is an admirable one’ he added

He criticized the public policy practices in the country and urged that this must be directed towards well being of its citizen which is possible through equity.

Source- Newzfirst

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