Unlawful Use Of Draconian Laws Sedition And UAPA
Siddique Kappan a journalist apprehended and
charged in 2020, receives bail by Supreme Court after nearly spending 680 days
in custody.
After a drawn-out trial, Siddique Kappan sees daylight as he is set free on bail. Wrongfully Incarcerated under draconian laws Sedition and UAPA,(Unlawful Activites Prevention Act) whose continuality is itself in question.
And Articles 14, 17 and 18 of the UAPA and Articles 65, 72 and 76 of the IT Law also apply. Furthermore, the present case is an unfortunate example of human rights abuses and strangulation of the press. While this case has at least gained attention in the media, many others are still caught in the loop of a constant struggle over appearing in court and applying for bail. A trial that goes on continuously without determining neither the guilt nor innocence of the accused is itself a punishment. The wound to the life and freedom of a citizen, deepens every day that relief is not given without reason.
This case Kerala Union of Working Journalists v. Union of India is a prime example of unwarranted imposition of draconian laws such as UAPA and seduction without reasonable proof of convict's provocation. These laws could be problematic because they give the police unrelenting power as in the solicitation or when UAPA is charged, bail is an exception.
Introduction
Many journalists choose to stay shut or rather effortlessly side with the government on many matters. However, the ones belonging to smaller regions working independently continue to perform their jobs and are more vulnerable to political and legal pressure or wrongful detention. The 'Chilling Effect' is the talk of the hour as it has been a significant roadblock in stress free and quality journalism.
Siddique Kappan, a 42-year-old journalist from Kerala, was one of the many journalists who were detained in the year . He along with 3 others were apprehended in Mathura, Uttar Pradesh, in October 2020, along. They were charged with Sections 124A (sedition), 153A (promoting enmity), 295A (outraging sentiments) and 120B (criminal conspiracy) of the IPC and Articles 14, 17 and 18 of the UAPA and Articles 65, 72 and 76 of the IT Law were also imposed. The rape and murder of a young Dalit girl in Hathras, Uttar Pradesh was the centre of chaos and agitation. Kappan got arrested by the police when he was enroute to cover the incident.
The chairman of PFI O M A Salam issued a statement saying:
"The charges against Kappan were fabricated and that the UP police had been obstructing his bail to deflect public outrage from the gang rape that had taken place in the Hathras district."
A day after the arrest, the Kerala Union of Working Journalists (KUWJ), of which Kappan , filed a writ petition of habeas corpus under Article 32 in the Supreme Court seeking bail for his wrongful detention. Press club of India issued a statement saying:
"In these circumstances, our worry is that UP Police may not fight shy of using anti-terrorism provisions with which to charge the Kerala journalist."
The whole case is pinned or relied upon a police confession, which ironically under Section 25 of the Evidence Act which itself is inadmissible in the court of law. The prosecution's argument revolves around Kappan's presumable links with the PFI, protests for the anti-CAA and his intention to instigate unrest in Hathras.
Way Forward
The case of the detenu took a speedy way forward when the apex court took cognizance of it in the past November. This case presents an unfortunate example of grave injustice at the hands of judicial system, the very foundation i.e violation of human rights violation to the extent of wrongful detention of the detenu.
The basic doctrine of justice states that the accused to be believed "innocent until proven guilty." However, once the UAPA is applied, the burden of proof is reversed. The same applies to this case. ordinarily initial stage before the beginning of the defendant's trial is for the arresting officer to put together a memo stating the date and time of the arrest, which needs to be attested by the family member of the accused, or by the respected member of the locality, according to amendment 41B of CrPC but the family members of the detenu didn't knew about the detention until after 2 days, this delay and unprofessional outlook is unaccounted for.
D.K Basu v. State of West Bengal and Ors is a landmark judgement that laid out guidelines on the rights of arrested persons along with the regulation by CrPC. The article 21 is an absolute right granted to every person even under trial with many other rights such as protection form inhumane treatment, right to meet their lawyers and fellowmen. Herein the detenu was kept incommunicado for several days, contemplating everyone to concur the incompetence of officials in following procedure.
The Unlawful activites prevention act came into force to provide for more effective prevention of unlawful activities of personnel, ironically the State has been using it as a tool to supress public dissent against it and are criticised over the years for using UAPA act (1967) According to the section 14 of UAPA act:
"Notwithstanding anything contained in the provision 1, an offence punishable under this Act shall be "cognizable" which is often misused to apprehend the presumable suspects.
Moreover, these Acts has reduced the burden of proof for establishing Mens Rea of the accused conducting an unlawful activity. It only needs to show that the individual is "probable" to terrorize the public. In the case Angela Harish Sontakke v. State of Maharashtra court rendered bail to the petitioner stating that the alleged offence must be balanced against how swiftly the trial went and how long he has been in jail because if there was any further delay, then the rights under Article 21 of the accused would be violated, and bail would have to be granted. Nevertheless Kappan had been suffering behind the bars for so long amidst the trial.
In State of Kerala v. Raneef ( 2011) the Supreme Court upheld the grant of bail to a person accused of UAPA offences, for being a member of the Muslim group "Popular Front of India". Evidence brought upon included "certain documents, C.D.s, mobile phone, a book called `Jihad'."
The Court noted that there was no prima facie evidence against the accused to deny the bail under S. 43(D)(5). In the present case the defence counsel built case upon the similar facts that the "literature" found in the car contained messages like 'Justice for Hathras' and "images to ignite feelings" which should not be considered as a prima facie evidence.
It goes back as early as 1950's when the Supreme Court in Romesh Thapar v State of Madras held that:
"cynicism or disaffection for government arising out of criticism, will not to be regarded as a qualifying ground for restricting the freedom of expression of the press, unless it has intention to undermine the security or to overthrow the state."
Soon after this judgement Punjab and Haryana High Court in Tara Singh Gopi Chand v. The State (1951), and the Allahabad High Court in Ram Nandan v. State of Uttar Pradesh (1959) - declared that Section 124A of the IPC was primarily a weapon for the state to justify it means and declared the provision unconstitutional.
After Being susceptible to fickleness for a such a prolonged time, in the landmark case of Kedarnath Singh v State of Bihar the Apex Court upheld the constitutional validity of IPC Section 124A and held that unless accompanied by an incitement or call for violence, criticism of the government cannot be labelled sedition and act inciting "public disorder" became a qualifying ground for sedition.
The detenu Siddique Kappan was detained on his way to Hathras and the prosecution alleged that the accused was carrying a foreign literature acting as a medium to unite people for riots and there was a propaganda surrounding the Hathras incident and eventually it was all part of a conspiracy designed by PFI
Supreme court held that "Every person has a right to freedom of expression and he is trying to show that (Hathras) victim needs justice and raise a common voice" and "Sometimes protests are necessary to highlight deficiencies at some point and Till now, prosecution have not shown anything provocative." and granted bail to the accused.
Conclusion
The Indian authorities routinely use vaguely worded, broad laws to silence and harass critics such as Sedition and UAPA itself. The law enforcers use this laws to criminalise peaceful protests and to silence the critics. These laws were framed to keep in check the felonious use of the rights and freedom granted by the constitution but it so happens these laws are often misused to detain the arbiter and curb their freedom of speech and expression.
As so happened in the case the judges concluded that " to the farthest extent the prosecution council could only present that the accused was travelling to Hathras when he was apprehended on the Yamuna Expressway on basis of some foreign literature founded in the car which even was not on his personnel is not enough to convict the accused. Secondly "let's raise a common voice" is not a crime in eyes of law.
While India's Supreme Court has constrained the use of the sedition law, making incitement to violence a necessary element, still police continue to file sedition charges even in cases where the necessary elements are not met.
References:
After a drawn-out trial, Siddique Kappan sees daylight as he is set free on bail. Wrongfully Incarcerated under draconian laws Sedition and UAPA,(Unlawful Activites Prevention Act) whose continuality is itself in question.
Moreover, Was The Detention Of The Reporter Justified?
The whole thing started back in late 2020 in October when 42-year-old journalist Siddique Kappan was arrested in Mathura, U.P. There has been a prolonged battle going on for freedom of speech and expression of Journalists, consequently they are the most vulnerable in this matter. Kappan was caught in a whirlwind when he went to report the Dalit girl's case to Hathras and was charged along with three others under Sections 124A (sedition), 295A (outraging religious sentiments), 120B (criminal conspiracy) 153A (promoting enmity) of the IPC.And Articles 14, 17 and 18 of the UAPA and Articles 65, 72 and 76 of the IT Law also apply. Furthermore, the present case is an unfortunate example of human rights abuses and strangulation of the press. While this case has at least gained attention in the media, many others are still caught in the loop of a constant struggle over appearing in court and applying for bail. A trial that goes on continuously without determining neither the guilt nor innocence of the accused is itself a punishment. The wound to the life and freedom of a citizen, deepens every day that relief is not given without reason.
This case Kerala Union of Working Journalists v. Union of India is a prime example of unwarranted imposition of draconian laws such as UAPA and seduction without reasonable proof of convict's provocation. These laws could be problematic because they give the police unrelenting power as in the solicitation or when UAPA is charged, bail is an exception.
Introduction
Many journalists choose to stay shut or rather effortlessly side with the government on many matters. However, the ones belonging to smaller regions working independently continue to perform their jobs and are more vulnerable to political and legal pressure or wrongful detention. The 'Chilling Effect' is the talk of the hour as it has been a significant roadblock in stress free and quality journalism.
Siddique Kappan, a 42-year-old journalist from Kerala, was one of the many journalists who were detained in the year . He along with 3 others were apprehended in Mathura, Uttar Pradesh, in October 2020, along. They were charged with Sections 124A (sedition), 153A (promoting enmity), 295A (outraging sentiments) and 120B (criminal conspiracy) of the IPC and Articles 14, 17 and 18 of the UAPA and Articles 65, 72 and 76 of the IT Law were also imposed. The rape and murder of a young Dalit girl in Hathras, Uttar Pradesh was the centre of chaos and agitation. Kappan got arrested by the police when he was enroute to cover the incident.
Ratio Decidendi
The police prepared a 5000 page long chargesheet and very conveniently mentioned that Kappan along with his colleagues was headed to Hathras to incite unrest and enmity and the police accused him of links with the extremist Islamist organisation, People Front of India(PFI) and collecting funds for the same. Ironically , PFI itself disproved any relationship with him.The chairman of PFI O M A Salam issued a statement saying:
"The charges against Kappan were fabricated and that the UP police had been obstructing his bail to deflect public outrage from the gang rape that had taken place in the Hathras district."
A day after the arrest, the Kerala Union of Working Journalists (KUWJ), of which Kappan , filed a writ petition of habeas corpus under Article 32 in the Supreme Court seeking bail for his wrongful detention. Press club of India issued a statement saying:
"In these circumstances, our worry is that UP Police may not fight shy of using anti-terrorism provisions with which to charge the Kerala journalist."
The whole case is pinned or relied upon a police confession, which ironically under Section 25 of the Evidence Act which itself is inadmissible in the court of law. The prosecution's argument revolves around Kappan's presumable links with the PFI, protests for the anti-CAA and his intention to instigate unrest in Hathras.
Way Forward
The case of the detenu took a speedy way forward when the apex court took cognizance of it in the past November. This case presents an unfortunate example of grave injustice at the hands of judicial system, the very foundation i.e violation of human rights violation to the extent of wrongful detention of the detenu.
The basic doctrine of justice states that the accused to be believed "innocent until proven guilty." However, once the UAPA is applied, the burden of proof is reversed. The same applies to this case. ordinarily initial stage before the beginning of the defendant's trial is for the arresting officer to put together a memo stating the date and time of the arrest, which needs to be attested by the family member of the accused, or by the respected member of the locality, according to amendment 41B of CrPC but the family members of the detenu didn't knew about the detention until after 2 days, this delay and unprofessional outlook is unaccounted for.
D.K Basu v. State of West Bengal and Ors is a landmark judgement that laid out guidelines on the rights of arrested persons along with the regulation by CrPC. The article 21 is an absolute right granted to every person even under trial with many other rights such as protection form inhumane treatment, right to meet their lawyers and fellowmen. Herein the detenu was kept incommunicado for several days, contemplating everyone to concur the incompetence of officials in following procedure.
Critical Analysis Of Sedition And UAPA
UAPAThe Unlawful activites prevention act came into force to provide for more effective prevention of unlawful activities of personnel, ironically the State has been using it as a tool to supress public dissent against it and are criticised over the years for using UAPA act (1967) According to the section 14 of UAPA act:
"Notwithstanding anything contained in the provision 1, an offence punishable under this Act shall be "cognizable" which is often misused to apprehend the presumable suspects.
Moreover, these Acts has reduced the burden of proof for establishing Mens Rea of the accused conducting an unlawful activity. It only needs to show that the individual is "probable" to terrorize the public. In the case Angela Harish Sontakke v. State of Maharashtra court rendered bail to the petitioner stating that the alleged offence must be balanced against how swiftly the trial went and how long he has been in jail because if there was any further delay, then the rights under Article 21 of the accused would be violated, and bail would have to be granted. Nevertheless Kappan had been suffering behind the bars for so long amidst the trial.
In State of Kerala v. Raneef ( 2011) the Supreme Court upheld the grant of bail to a person accused of UAPA offences, for being a member of the Muslim group "Popular Front of India". Evidence brought upon included "certain documents, C.D.s, mobile phone, a book called `Jihad'."
The Court noted that there was no prima facie evidence against the accused to deny the bail under S. 43(D)(5). In the present case the defence counsel built case upon the similar facts that the "literature" found in the car contained messages like 'Justice for Hathras' and "images to ignite feelings" which should not be considered as a prima facie evidence.
Sedition (124a IPC)
Sedition is the language intended to incite insurrection against the governing authority. The constitutional validity of the provision have been controversial since its enactment in our constitution.It goes back as early as 1950's when the Supreme Court in Romesh Thapar v State of Madras held that:
"cynicism or disaffection for government arising out of criticism, will not to be regarded as a qualifying ground for restricting the freedom of expression of the press, unless it has intention to undermine the security or to overthrow the state."
Soon after this judgement Punjab and Haryana High Court in Tara Singh Gopi Chand v. The State (1951), and the Allahabad High Court in Ram Nandan v. State of Uttar Pradesh (1959) - declared that Section 124A of the IPC was primarily a weapon for the state to justify it means and declared the provision unconstitutional.
After Being susceptible to fickleness for a such a prolonged time, in the landmark case of Kedarnath Singh v State of Bihar the Apex Court upheld the constitutional validity of IPC Section 124A and held that unless accompanied by an incitement or call for violence, criticism of the government cannot be labelled sedition and act inciting "public disorder" became a qualifying ground for sedition.
The detenu Siddique Kappan was detained on his way to Hathras and the prosecution alleged that the accused was carrying a foreign literature acting as a medium to unite people for riots and there was a propaganda surrounding the Hathras incident and eventually it was all part of a conspiracy designed by PFI
Supreme court held that "Every person has a right to freedom of expression and he is trying to show that (Hathras) victim needs justice and raise a common voice" and "Sometimes protests are necessary to highlight deficiencies at some point and Till now, prosecution have not shown anything provocative." and granted bail to the accused.
Conclusion
The Indian authorities routinely use vaguely worded, broad laws to silence and harass critics such as Sedition and UAPA itself. The law enforcers use this laws to criminalise peaceful protests and to silence the critics. These laws were framed to keep in check the felonious use of the rights and freedom granted by the constitution but it so happens these laws are often misused to detain the arbiter and curb their freedom of speech and expression.
As so happened in the case the judges concluded that " to the farthest extent the prosecution council could only present that the accused was travelling to Hathras when he was apprehended on the Yamuna Expressway on basis of some foreign literature founded in the car which even was not on his personnel is not enough to convict the accused. Secondly "let's raise a common voice" is not a crime in eyes of law.
While India's Supreme Court has constrained the use of the sedition law, making incitement to violence a necessary element, still police continue to file sedition charges even in cases where the necessary elements are not met.
References:
- Constitution of India
- Indian Penal Code (1860)
- UAPA act (1967)
- Article 21(Constitution of India)
- Article 19 (Constitution of India
- SSC online (sedition and UAPA case laws)
- Manupatra (sedition and UAPA case laws)
- Lawtimes journal
- Indian kanoon
- https://www.legalservicesindia.com/article/717/Maneka-Gandhi.html
- https://indianexpress.com/article/explained/sedition-law-explained-origin-history-legal-challenge-supreme-court-7911041/
- https://indconlawphil.wordpress.com/2015/04/09/arup-bhuyan-article-191a-and-bail-jurisprudence-in-terror-related-cases/
- https://www.scobserver.in/journal/bail-under-uapa-court-in-review/
- https://www.legalserviceindia.com/legal/article-2200-judicial-review-in-india.html
- https://indianexpress.com/article/opinion/columns/why-recent-judgments-in-uapa-cases-represent-limited-victory-7369546/
- https://www.barandbench.com/topic/uapa-cases
- https://www.barandbench.com/news/litigation/what-timeline-concluding-a-uapa-trial-delhi-high-court
- https://www.hindustantimes.com/cities/delhi-news/bail-in-uapa-case-every-second-in-detention-violates-rights-say
- https://scroll.in/article/1006767/the-siddique-kappan-case-and-the-assault-on-indias-constitution
- https://thewire.in/women/hathras-gang-rape-and-murder-case-a-timeline
- https://www.barandbench.com/apprentice-lawyer/uapa-unravelling-its-unconstitutionality
- https://www.probono-india.in/blog-detail.php?id=220
- https://www.legalserviceindia.com/legal/article-8121-kerala-union-of-working-journalist-v-s-union-of-india.html
- https://www.barandbench.com/news/litigation/hathras-case-considered-by-allahabad-high-court-supreme-court
- https://economictimes.indiatimes.com/news/india/supreme-court-grants-bail-to-journalist-siddique
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