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Citizenship and Sedition - Laws That Need Clarity

Currently, Human security is on a qui vive now day, as there are people around the world either fighting terrorism, genocide, war, natural disasters, economic breakdowns, poverty, stringent political regimes, and many more, when these are foreseen they rise exponentially and then it's harder to stop or cure. Like in the words of Mahatma Gandhi:' I object to violence because when it appears to do good, the good is only temporary, the evil it does is permanent.

It rightly said that one must use the right medicine at the right time to weed out the pests before they sabotage the whole crop As noted in General Assembly resolution 66/290, "human security is an approach to assist the Member States in identifying and addressing widespread and cross-cutting challenges to the survival, livelihood, and dignity of their people." It calls for "people-centric, comprehensive, context-specific and prevention-oriented responses that strengthen the security and empowerment of all people.

To know a detailed analysis of where each country lies in human security, a methodology was developed called the Human Security Index or HSI that gave a comprehensive approach in three phases or categories i.e. economic, environmental, and social. The recent events in the South and North Asian countries including the Gulf region and disturbances in Latin America with Australasia which witnessed violent protests against the government, military takeover, forest fires, and warlike situations which are rising and creating distress not just in the respective state but all over the world affecting the security of every individual, loss of trade and Geo-political tensions globally creating distress.

Multilateral Institutions like ICC (International criminal court) and WTO which find their genesis in the quest for a peaceful world order are almost defunct or failing to achieve desired results, the blame only goes to its members. The big horse like UN finds itself paralyzed when belligerent nations like communist China asserts themselves and its narrow prospects over a rule-based order

Let us discuss this in layman's terms and its instrumental role in our livelihood. The word security includes many aspects in its ambit such as security of life and peaceful surroundings. A promise of a mirific life. In India, the early 20th century witnessed a strong struggle to free our motherland from the alien foreign yoke. Even after independence people still face the same fears, even though being in a socialist, secular, and democratic republic. A sense of insecurity seems to be still prevailing. What kind of fears must strike their minds that they are so scared?
  1. Unemployment - No money, No food
    India houses the youngest population on the planet with the average age being 29 years. This simply means more hands for work and economical output. However, this has not translated into more jobs and employment. Youth wanders hunting for jobs with only frustration and dissatisfaction in hand. According to NSSO's latest data unemployment has reached its peak since 1975.

    This unemployed youth hence will vent out their energies in unlawful activities, directly contributing to the rising crime rate, either you harness the demographic dividend or you don't, there's no other road. National crime records bureau's report shows UP as the hub of sexual crimes against women along with a general crime rise, the reason is quite evident, high level of illiterate population along with high population density and states failure to maintain optimum law and order.

  2. When a natural disaster hits, normal life takes a back seat be it Tsunami, earthquake, or even a man-made disaster like the Bhopal gas tragedy or the latest Andhra Pradesh Styrene gas leak. Disasters give us a reality check of our preparedness. Poor strata suffer the most. Post-disaster recovery may take years or even centuries, Chernobyl and Fukushima nuclear disasters are an apt example, here radiation may not normalize for 100's of years rendering them hostile for living. In India, the Himalayan Tsunami of Kedarnath is still fresh in our memories. Who can forget the yearly floods of the Brahmaputra basin? Everyone remembers the Bhuj earthquake. The latest biological disaster of COVID-19 needs no introduction.

  3. Religious Security
    Communal riots and persecuted groups in various countries.
    The need for human security has been growing exponentially throughout the world. The recent event in countries like - India, Australia, America, Russia, Myanmar, Hong Kong, Iraq, and many others witnessed violent protests against the government, military takeovers, forest fires, and warlike situations which are rising and creating distress not just in the respective state but all over the world affecting the security of every individual and creating dystopia all over the world.

And today on this platform my main agenda is to speak on the 'Citizenship and Sedition laws in India'. Starting with citizenship, it is defined as the one who has the status to be a resident or a citizen of a state. In International law, it means membership to a sovereign state. A much crisp definition to this term would be: 'Relationship between an individual and a state to which the individual owes allegiance and in turn is entitled to its security. As solid and loyal as this definition sounds, the weaker & heartbreaking is the condition of the people or the citizens.

On 11th December 2019, a bill called Citizenship Amendment Bill was passed that led to large violent and dissenting protests by several communities and even students. This bill made everybody question whether they would be allowed to stay or will be scrapped off the Indian citizenship. CAA stands for Citizenship Amendment Bill which amended section 2 of Citizenship Act,1955 which states that: "Any person belonging to Hindu, Sikh, Buddhist, Jain, Parsi or Christian community from Afghanistan, Bangladesh or Pakistan, who entered into India on or before 31st December 2014 and who has been exempted by the Central Government by or under the clause (c) of subsection (2) of section 3 of the Passport Act, 1920 or from the application of the provisions of the Foreigners Act, 1946 or any rule or order made thereunder, shall not be treated as an illegal migrant for this act."

Now, this bill excluded Muslims from its ambit for a reason that Islam is known to have the second largest population in the entire world whereas the countries mentioned in this bill are Islamic republics. And the remaining minority communities were persecuted there. So this bill seeks to provide help to those persecuted in these countries and come and live in India. An illegal migrant is defined as one who entered India without any proper documents or has stayed beyond the permitted time. This bill has also reduced the aggregate period of residence from 11 years to just 5 years and it states that any citizen who entered India before 31st December 2014 out of the communities mentioned in the section shall be given citizenship under the new amendment.

History of CAA

When the Indian subcontinent was partitioned in 1947, two waves of migration took place from West Pakistan to India, the first wave occurred after 1st March 1947 including Hindus and Sikhs in huge numbers. And in the second wave during 1948, migrants that left India to move to Pakistan that comprised of Muslims decided to come back. And the government described these Muslims as evacuees and the Hindus and Sikhs as displaced persons who when came to India resided in the evacuee property that was left behind by the Muslims. Due to this a large rush of migrants came to India and to curb this the government initiated a system to stop Muslims from coming back to India via a permit system & as result to which by august 1948 only 2000 Muslim refugees entered the state.

The point in question: Was this bill against the constitution?

Ans. Yes, this bill violates the fundamental principle of secularism mentioned implicitly all over the constitution in the Directive principles of state policy, the fundamental duties, etc, and now in the preamble explicitly after the 42nd amendment. Article 14 and 15 look to violated prima facie which talks about equality before law and prohibition of discrimination on grounds of religion, race, caste, sex, or place respectively.
  • Another reason would be the exclusion of non-religious communities such as atheists, agnostics.
  • The clause of cut-off dates falls short of logic, exodus and small migrations are a continuous process, and especially the myopic clause of religion-specific selection is a direct violation of Constitutional provisions whatsoever. Ahmadiyya and Shia Muslims of Pakistan, Rohingya Muslims of Myanmar are equally persecuted and treated as second-class citizens in their respective countries.

Why the states were not taken into confidence during the protests, gov. used a heavy-handed approach in crushing the protest. Many were apprehended by the police and charged with sedition. The bill is replete with ambiguities that the government never tried to clear or even make changes. Whether the bill was anti-Muslim or pro Hindu was something to be investigated. Can we call this discrimination among their citizens, who were residing in the state for quite long now had to prove their allegiance to the nation and not everyone but very targeted communities?. In an amusing incident, a retired Judge of Assam High court was scrapped off the citizen list in NRC drive.

Plenty of changes have been made by the government in the current tenure that shook the nation to its roots and states had no say in the center's decision.

According to the government, this initiative was taken to protect the persecuted class comprising of Hindus, Sikhs, Christians, Jains, Parsi, and Buddhists. And also promised the North Eastern states that their culture and identity will be preserved and illegal immigrants won't disrupt their livelihood.

UAPA, 1967

Now I will talk about the new act that received so much criticism and yet was implemented by the government. The act is UAPA, 1967 also called Anti- Terror Legislation, talking about its genesis, in 1962 a very renowned leader CN Annadurai of Dravida Munnetra Kazagham party who is also known to change the name of Madras to Tamil Nadu, proposed for a separate Tamil state in the Upper house of the parliament. But during that time Indo China war was going on and the government was under pressure already.

The administration thought that they already have emergency provisions for external aggression but nothing yet for the internal or domestic crisis. This was a debatable topic that was also discussed by Dr. B.R. Ambedkar and he stated that article 1 of our Constitution states that India i.e. Bharat shall be the *union of states*which means that there was no agreement made with the states to join together to form the United States of India as is the case with America and Indian states have no right to ceased.

Hence India is called an Indestructible union composed of destructible states and the US is called an indestructible union of indestructible states. Simply put the constitution does not guarantee the continuation of any state, Article 2-4 of the constitution allows the union to break or make new states. Andhra Pradesh became the first state in India to crave out on a linguistic basis for the native Telugu speakers, while it was believed that partition based on language or community or religion could lead to secessionist tendencies in the already volatile state of affairs in the newly born Republic Of India.

Even while Jinnah and the Responsivists(far-right Hindu fundamentalists) proposed division of the state based on religious lines, it was disgusted by many prominent leaders such as Mahatma Gandhi, Dr. Ambedkar, Bhagat Singh, and others.

The constituent assembly was well aware of the fact that India has a plethora of ethnicities, cultures, and religions, it is a sine qua non to bind the nation together with a federal system having strong centralizing tendencies, overall a symphony of rigid and a fluid system was achieved which has ensured the continuation of an Integral Indian state all thanks to our visionary constitutional forefathers. Some communities demand Hindu Rashtra; Khalistan; Greater Nagalim etc. So, to avoid such a predicament, the UAPA act i.e Unlawful Activities Prevention Act was brought up in 1967 to restrict 3 fundamental rights mainly - Freedom of Speech and Expression, the Right to assemble peacefully, and the Right to form associations and unions.
It categorized activities that show disaffection towards the nation or national emblems and idols. There were many acts formed for various states specifically to curb terrorism such as TADA ( Terrorist and Disruptive activities act) for Punjab and after the Kandahar hijack and parliament attack an act by the name POTA (Prevention of terrorism act) but was repealed In 2004 as they were being misused largely, but in the same year UAPA was amended and 'terror activities were included in the act.

Now talking about the recent amendment act, the key points that this amendment has are as follows:

  • It gives power to the government to designate individuals as terrorists if the person participates in acts of terrorism, prepares for terrorism, promotes terrorism, or is otherwise found participating in such acts of terrorism.
    This has been done to stop the individual terrorists who when banned from one organization, build another, and so on.
     
  • The bill also gives authority to the National Investigation Agency (NIA)(formed after the 26/11 attacks) to seize the property when the case is being investigated by the agency.
    Under the existing Act, the investigating officer is required to obtain the prior approval of the Director-General of Police (DGP) to seize properties that bear any connection to terrorism. And it has been seen or witnessed that these individuals have different properties in different locations in the country, and it is not a cakewalk for the agency to ask for approvals from every state police as it leads to delay in the investigation process.
     
  • The detention period has been increased to 180 days from 60 days, wherein no charge sheet could be filed and is eligible for extension if need be. No bail available to the accused up to the expiry of this period.
     
  • Government now has the power to declare any citizen as a terrorist on mere suspicion and add his name to the 4th Schedule and to denotify his name, the accused within 45 days can appeal to the same authority for the same who labeled him as a terrorist in the first place.

Now, this act lack definition that is the grundnorm of the whole act that is what is terrorism?

The other question that comes to mind is whether every dissenting opinion by a person against the government policies be tagged as a potential act of terrorism and also one's a person is labeled by the government as a terrorist, that itself is a kind of civil death to that person even after he gets his name removed from the list. NK Premchandran, a member of the Parliament very rightly stated that to tackle terror, the fundamental rights of the citizens must not be foregone.

This law is also believed to be widely misused by the police. People democratic party MP Mohd. Fayaz said if a militant at gunpoint seeks shelter, will the innocent family be treated as terrorists for aiding the terrorist?

Current Scenario
There has been a rise in the arrests of people under this act but with very few convictions. Like in Delhi, the police booked students of JNU and Jamia Milia under this act for protesting against CAA. Even in the recent farm laws protest many have been booked either under the UAPA act or under sec 124A of IPC i.e. Sedition.

Times Of India after its research found a pattern that stated poor police investigation, weak prosecution, and procedural lapses, and despite all this, the accused were imprisoned for long years without even having a chance of a fair trial.

Sedition
Now as stated above there is one more controversial law that has silenced hundreds and still counting, are charged under this section i.e. 124A of the Indian Penal Code that defines the word 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, the Government estab lished by law in India shall be punished with imprisonment for life, to which fine may be added, or with impris onment which may extend to three years, or with fine.
  • This section in a proviso explains the expression disaffection' also includes disloyalty and all feelings of enmity.
Sedition law has completed 150 years last year in 2020. This law was also introduced in the UK in 1972 and in 2009 it was abolished because in all this time no person was booked under this section.

Talking about the history of Sedition:
In 1860, as we all know IPC i.e Indian Penal Code was drafted by Lord Macaulay and till then there was no law such as sedition in the code. In 1870, Sedition was added in chapter 4 of IPC under the offenses against the state under section 124A.

The very first case was booked on Bal Gangadhar Tilak in 1897 and where two essential ingredients were quoted by the Federal Court - Public Disorder and Inciting Violence.
The courts in many judgments narrowed down the meaning of sedition and observed that the act which threatens the state's security is sedition. Then there was a hike in cases under sedition which brought us to the case of Kedarnath v. State of Bihar (1962) in which the court very clearly stated that just arousing bad feelings against the government cannot be considered seditious.

Similarly, in 1995 another case of Balwant Singh came to the court in which the accused was charged under sedition for sloganeering Khalistan Zindabad, to which the court held that as the act did not attract any public attention nor did it incite any violence, hence charge for sedition does not qualify.
  • MK Gandhi was also charged under Sedition for inciting people against the British government nonviolently. But he pleaded guilty to all the charges and said:
    Section 124A under which I am happily charged is perhaps the prince among the political sections of the IPC designed to suppress the liberty of the citizen.”
  •  In India, sedition cases are increasing and the authority has been abusing this section to its core. And the conviction rate is way too low for the number of people charged with sedition. A maximum of the sedition charges is put up on the protesters demanding their rights.
Let us get down to Why sedition should exist?
  1. It has its utility in combating anti-national, secessionist, and terrorist elements.
  2. It protects the elected government from attempts to overthrow the government with violence and illegal means.
  3. It was started by one of the Supreme court lawyers named Sai Deepak who brought into light the law of Blasphemy under section 275A and widened the concept of free speech, to which he commented that free speech becomes a question of law when talking about sedition or disrespect to the nation but takes a backseat when it comes to religious sentiments.
    In other words, he stated if the law is to prevent the sacred picture of the nation which is way more above the respect given to the religious communities, then both the laws should be scrapped off.

Now the arguments against this law of Sedition:
  1. Constraint on the legitimate exercise of constitutionality guaranteed freedom of speech and expression.
  2. Dissent and criticism of the government are essential ingredients of robust public debate in a vibrant economy.
  3. A very renowned lawyer of the Supreme court Sanjay K. Chadha also remarked that Bonafide criticism is not seditious and if the government abuses the power of sedition in response to which people fear giving dissenting opinions on government policies is very disparaging for our nation's democracy”
  4. The term mentioned disaffection' is vague and is subject to different interpretations of the whims and fancies of the investigating officer.
  5. It is also misused as a tool to persecute political dissent.

Recent cases of arrest of Munawar Faruqui and Disha Ravi are perfect examples of misuse of the law of sedition by the police.
J. Rana of Sessions court, Delhi after hearing the bail plea for Disha Ravi also gave his opinion and observed that Citizens cannot be put behind bars simply because they choose to disagree with the state policies'

Conclusion
In the words of Abraham Lincoln: that government is for the people, by the people, and of the people.' People should not hide behind their fears and understand the power of speech. The government is formed with the majority votes and not by the support of the whole nation which means minorities still have the power to criticize the unjust laws.

One has the right to live with dignity and no one is in any consonance with the government nor do we appease these leaders by our silence instead we give them more power. The government is supposed to act as a watchdog and make amendments to the system & the laws. We have much more serious problems to be dealt with, hence the government should be concerned with the economic crisis first rather than silencing people from expressing genuine dissent.

References:
  1. United Nation Trust Fund for Human Security. www.un.org/humansecurity/wp-content/uploads/2018/04/What-is-Human-Security.pdf
  2. drishti. www.drishtiias.com/upsc-mains-solved-papers/subject/internal%20security.
  3. Verma, Sanjeev, editor. Times Of India, timesofindia.indiatimes.com/india/why-uapa-cases-fall-flat-in-courts/articleshow/77191240.cms.
  4. Indian Kanoon. indiankanoon.org/doc/1641007/.
  5. Dantewadia, Pooja, and Vishnu Padmanabhan. mint, www.livemint.com/news/india/sedition-cases-in-india-what-data-says-11582557299440.html.
  6. India Today, www.indiatoday.in/education-today/gk-current-affairs/story/use-and-misuse-of-sedition-law-section-124a-of-ipc-divd-1607533-2019-10-09.

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