SC Puts ‘Colonial’ Sedition Law on Hold
Context:
The Supreme Court suspended pending criminal trials and court proceedings under Section 124A (sedition) of the Indian Penal Code, while allowing the Union of India to reconsider the British-era law.
Relevance:
GS-II: Polity and Constitution (Constitutional Provisions, Fundamental Rights), GS-II: Governance (Government Policies and Initiatives)
Dimensions of the Article:
- What did the SC say?
- What is Sedition?
- About Sedition law
- 399 sedition cases since 2014, pendency high
- Views of Judiciary in the past
- Criticism of Sedition
- The Problem of Sedition being constitutional
What did the SC say?
- All pending trials, appeals and proceedings with respect to the charge framed under Section 124A of the IPC be kept in temporary suspension.
- The court also restrained centre and states from registering FIRs, continuing investigations or take coercive measures under Section 124A.
What is Sedition?
Sedition, which falls under Section 124A of the Indian Penal Code, is defined as any action that brings or attempts to bring hatred or contempt towards the government of India and has been illegal in India since 1870.
Historical background of Sedition laws
- Sedition as a concept comes from Elizabethan England, where if you criticised the king and were fomenting a rebellion, it was a crime against the state.
- When they ruled India, the British feared Wahhabi rebellion. They brought the [sedition] law in, and it was used against our freedom fighters as well.
- We must remember that both Mahatma Gandhi and [Bal Gangadhar] Tilak were tried under this law and sentenced.
- Government didn’t remove it because every administrator has this thought that dissent is okay, but beyond a certain point it gets dangerous and an administration must have the means to control it.
- Previously policemen were much more independent. But since Indian independence, the independence of the police has also been severely compromised. So, any local leader can almost bully a policeman into registering a case.
About Sedition law
- The law was originally drafted by Thomas Macaulay. Since its introduction in 1870, meaning of the term, as well as its ambit, has changed significantly.
- Sedition is a cognisable, non-compoundable, and non-bailable offence, under which sentencing can be between three years to imprisonment for life.
About Section 124A of Indian Penal Code (IPC)
- The Indian Penal Code in Section 124A lays down the offence:
- “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, shall be punished with imprisonment for life, to which fine may be added, or with imprisonment which may extend to three years, to which fine may be added, or with fine.”
- A person charged under this law can’t apply for a government job. They have to live without their passport and must present themselves in the court as and when required.
399 sedition cases since 2014, pendency high
- Since 2014, when the National Crime Records Bureau (NCRB) started compiling data on sedition, 399 sedition cases have been filed across the country, including a high of 93 in 2019, and 73 in 2020.
- Incidentally, 2019 is also the year with the lowest conviction rate at 3.3%. According to the NCRB, of the 30 cases in which trial was completed that year, only one resulted in conviction.
- The chargesheeting rate of police too has been low. Of 322 cases filed between 2016 and 2020, chargesheets were filed in only 144. As many as 23 cases were found to be false or a mistake of law, and 58 were closed for lack of evidence. Pendency of cases with police rose from 72% in 2016 to 82% in 2020.
- There is no striking trend among states in terms of the number of sedition cases filed. States such as Assam, UP and J&K have registered high numbers of cases recently. States such as Manipur, Bihar, Jharkhand, Karnataka and UP too have registered a high number of cases in some years.
- In 2019, when the highest number of sedition cases were registered in the country, Karnataka had the most at 22, followed by Assam (17), J&K (11), Uttar Pradesh (10) and Nagaland (8).
- In 2018, Jharkhand witnessed the highest number of sedition cases at 18, followed by Assam (17), J&K (12) and Kerala (9).
Sedition cases in 2020
- In 2017, Assam had the highest number of cases at 19, followed by Haryana (13) and Himachal Pradesh (8). In 2016, Haryana registered the highest number of such cases at 12, followed by Uttar Pradesh at 6.
- In 2015, Bihar had the country’s highest with nine cases, followed by West Bengal (4). In 2014, Jharkhand had the highest number of such cases at 18, followed by Bihar (16).
Views of Judiciary in the past
- The constitutionality of sedition was challenged in the Supreme Court in Kedar Nath Vs State of Bihar (1962). The Court upheld the law on the basis that this power was required by the state to protect itself.
- However, it had added a vital caveat that “a person could be prosecuted for sedition only if his acts caused incitement to violence or intention or tendency to create public disorder or cause disturbance of public peace”.
- The 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 against the Government established by law or with the intention of creating public disorder”.
- In the 1995 Balwant Singh case verdict, the Apex Court said, ‘The casual raising of slogans once or twice by two individuals alone cannot be said to be aimed at exciting or attempt to excite hatred or disaffection towards the government”.
- In 2016, the Supreme Court had reiterated these necessary safeguards and held that they should be followed by all authorities.
- Various verdicts in Romesh Thappar case, Kedar Nath Singh case, Kanahiya Kumar case re-defined a seditious act only if it had essential ingredients which are:
- Disruption of public order
- Attempt to violently overthrow a lawful government
- Threatening the security of State or of public.
Criticism of Sedition
- Colonial Era law: It is a colonial relic and a preventive provision that should only be read as an emergency measure.
- Right to Freedom of expression: Use of Section 124A by the government might go beyond the reasonable restrictions provided under fundamental right to freedom of speech and expression as per Article 19 of the Constitution.
- Democratic foundation: Dissent and criticism of the government are essential ingredients of robust public debate in a vibrant democracy and therefore, should not be constructed as sedition. The sedition law is being misused as a tool to persecute political dissent.
- Lower Conviction Rate: Though police are charging more people with sedition, few cases actually result in a conviction. Since 2016, only four sedition cases have seen a conviction in court which indicates that sedition as an offence has no solid legal grounding in India.
- Vague provision of sedition laws: The terms used under Section 124A like ‘disaffection’ are vague and subject to different interpretation to the whims and fancies of the investigating officers.
- Other legal measure for offences against the state: Indian Penal Code and Unlawful Activities Prevention Act (1967), have provisions that penalize “disrupting the public order” or “overthrowing the government with violence and illegal means”. These are sufficient for protecting the national integrity. o Similarly, the Prevention of Damage to Public Property Act is also there for offences against the state.
- Perception of law: Globally, sedition is increasingly viewed as a draconian law and was revoked in the United Kingdom in 2010. In Australia, following the recommendations of the Australian Law Reform Commission (ALRC) the term sedition was removed.
The Problem of Sedition being constitutional
- The law of sedition was not struck down by the Supreme Court in 1962 as unconstitutional even though sedition, as defined in Section 124A of the IPC, clearly violates Article 19(1)(a) of the Constitution which confers the Fundamental Right of freedom of speech and expression, the most valuable right of free citizens of a free country.
- Further, this section does not get protection under Article 19(2) on the ground of reasonable restriction.
- It may be mentioned in this context that sedition as a reasonable restriction, though included in the draft Article 19 was deleted when that Article was finally adopted by the Constituent Assembly. It clearly shows that the Constitution makers did not consider sedition as a reasonable restriction.
- However, the Supreme Court was not swayed by the decision of the Constituent Assembly. It took advantage of the words ‘in the interest of public order’ used in Article 19(2) and held that the offence of sedition arises when seditious utterances can lead to disorder or violence.
- This act of reading down Section 124A brought it clearly under Article 19(2) and saved the law of sedition. Otherwise, sedition would have had to be struck down as unconstitutional.
Delhi HC Gives Split Verdict on Marital Rape
Context:
A two-judge Bench of the Delhi High Court delivered a split verdict in a batch of petitions challenging the exception provided to marital rape in the Indian Penal Code (IPC).
Relevance:
GS-II: Social Justice (Issues related to Women, Government Policies and Initiatives), GS-II: Polity and Governance (Important Judgements and Committees)
Dimensions of the Article:
- About Marital Rape
- What is the marital rape exemption?
- What is the broad takeaway from the verdict?
- What happens when a split verdict is delivered?
- Criticism of India’s Legal regime on Marital Rape
- On courts differing in views on marital rape
About Marital Rape
- According to Justice Verma committee recommendations, The IPC differentiates between rape within marriage and outside marriage. Under the IPC sexual intercourse without consent is prohibited. However, an exception to the offence of rape exists in relation to un-consented sexual intercourse by a husband upon a wife.
- The Committee recommended that the exception to marital rape should be removed. Marriage should not be considered as an irrevocable consent to sexual acts.
- Therefore, with regard to an inquiry about whether the complainant consented to the sexual activity, the relationship between the victim and the accused should not be relevant.
What is the marital rape exemption?
- Section 375 defines rape and lists seven notions of consent which, if vitiated, would constitute the offence of rape by a man.
- However, the provision contains a crucial exemption: “Sexual intercourse or sexual acts by a man with his own wife, the wife not being under eighteen years of age, is not rape.”
- This exemption essentially allows a marital right to a husband who can with legal sanction exercise his right to consensual or non-consensual sex with his wife.
- The exemption is also under challenge before the Gujarat High Court on the grounds that it undermines consent of a woman based on her marital status.
- Separately, the Karnataka HC has allowed the framing of marital rape charges against a man despite the exemption in law.
What is the broad takeaway from the verdict?
- Even though the court has delivered a split verdict, its intervention moves the needle in favour of doing away with the marital rape exemption in law.
- Justice Shakdher’s opinion takes the conversation forward on the subject, and sets the stage for a larger constitutional intervention before the Supreme Court.
- Recently, the Supreme Court refused to stay the Karnataka High Court order that for the first time put a man on trial for marital rape.
- The SC’s refusal to stay the order indicates that the higher judiciary is willing to carry out a serious examination of the colonial-era provision.
What happens when a split verdict is delivered?
- In case of a split verdict, the case is heard by a larger Bench.
- This is why judges usually sit in Benches of odd numbers (three, five, seven, etc.) for important cases, even though two-judge Benches or Division Benches are not uncommon.
- The larger Bench to which a split verdict goes can be a three-judge Bench of the High Court, or an appeal can be preferred before the Supreme Court.
- The Delhi High Court has already granted a certificate of appeal to move the Supreme Court since the case involves substantial questions of law.
Criticism of India’s Legal regime on Marital Rape
- Marital rape is criminalized in more than 100 countries but, unfortunately, India is one of the only 36 countries where marital rape is still not criminalized.
- The Supreme Court has included sanctity of women, and freedom to make choices related to sexual activity under the ambit of Article 21. Therefore, this exception clause is violative of Article 14 and Article 21 of the Indian Constitution.
- Rape laws in our country continue with the patriarchal outlook of considering women to be the property of men post marriage, with no autonomy or agency over their bodies. They deny married women equal protection of the laws guaranteed by the Indian constitution.
- A married woman has the same right to control her own body as does an unmarried woman. Unfortunately, this principle is not upheld in Indian rape laws.
- Our penal laws, handed down from the British, have by and large remained untouched even after 73 years of independence. But English laws have been amended and marital rape was criminalised way back in 1991. No Indian government has, however, so far shown an active interest in remedying this problem.
On courts differing in views on marital rape
- Kerala High Court backed marital rape as a valid ground for divorce.
- A court in Maharashtra gave anticipatory bail to a man while concluding that forcible sex with his wife was not an “illegal thing” though she said it left her paralysed.
- In 2017, the Supreme Court highlighted that legislative immunity given to marital rape stemmed from the “outdated notion that a wife is no more than a subservient chattel of her husband”.
- Gujarat High Court has held that “a law that does not give married and unmarried women equal protection creates conditions that lead to the marital rape”.
- In the Suchita Srivastava v. Chandigarh Administration case, the SC backed a “woman’s right to refuse participation in sexual activity or alternatively the insistence on use of contraceptive methods”. The court has held that “rape is not only a crime against the person of a woman, it is a crime against the entire society”.
Foreign Contribution (Regulation) Act (FCRA)
Context:
The Central Bureau of Investigation has arrested four current and two former officials of the Foreign Contribution (Regulation) Act (FCRA) division of the Union Home Ministry, along with eight others, for allegedly facilitating illegal clearances to non-governmental organisations (NGOs) under the Act, in lieu of bribes.
Relevance:
GS-II: Polity and Governance (Government Policies & Interventions, Non-Governmental Organisations -NGOs), GS-III: Indian Economy (External Sector, Mobilization of Resources)
Dimensions of the Article:
- Foreign Contribution (Regulation) Act, 2010
- Foreign Contribution (Regulation) Amendment Act, 2020
- Issues Related to FCRA
- Non-Governmental Organisations (NGOs) in India
- Why have NGOs been controversial recently?
- MHA guidelines regarding FCRA and NGOs
Foreign Contribution (Regulation) Act, 2010
The Foreign Contribution (regulation) Act, 2010 is a consolidating act whose scope is to regulate the acceptance and utilisation of foreign contribution or foreign hospitality by certain individuals or associations or companies and to prohibit acceptance and utilisation of foreign contribution or foreign hospitality for any activities detrimental to the national interest and for matters connected therewith or incidental thereto.
Key Points regarding FCRA
- Foreign funding of voluntary organizations in India is regulated under FCRA act and is implemented by the Ministry of Home Affairs.
- The FCRA regulates the receipt of funding from sources outside of India to NGOs working in India.
- It prohibits the receipt of foreign contribution “for any activities detrimental to the national interest”.
- The Act held that the government can refuse permission if it believes that the donation to the NGO will adversely affect “public interest” or the “economic interest of the state”. However, there is no clear guidance on what constitutes “public interest”.
- The Acts ensures that the recipients of foreign contributions adhere to the stated purpose for which such contribution has been obtained.
- Under the Act, organisations require to register themselves every five years.
Foreign Contribution (Regulation) Amendment Act, 2020
- The Act bars public servants from receiving foreign contributions. Public servant includes any person who is in service or pay of the government, or remunerated by the government for the performance of any public duty.
- The Act prohibits the transfer of foreign contribution to any other person not registered to accept foreign contributions.
- The Act makes Aadhaar number mandatory for all office bearers, directors or key functionaries of a person receiving foreign contribution, as an identification document.
- The Act states that foreign contribution must be received only in an account designated by the bank as FCRA account in such branches of the State Bank of India, New Delhi.
- The Act proposes that not more than 20% of the total foreign funds received could be defrayed for administrative expenses. In FCRA 2010 the limit was 50%.
- The Act allows the central government to permit a person to surrender their registration certificate.
Issues Related to FCRA
- The Act also held that the government can refuse permission if it believes that the donation to the NGO will adversely affect “public interest” or the “economic interest of the state” – however, there is no clear guidance on what constitutes “public interest”.
- By allowing only some political groups to receive foreign donations and disallowing some others, can induce biases in favour of the government. NGOs need to tread carefully when they criticise the regime, knowing that too much criticism could cost their survival. FCRA norms can reduce critical voices by declaring them to be against the public interest – Hence, it can be said that FCRA restrictions have serious consequences on both the rights to free speech and freedom of association under Articles 19(1)(a) and 19(1)(c) of the Constitution.
- In 2016, the UN Special Rapporteur on the Rights to Freedom of Peaceful Assembly and of Association undertook a legal analysis of the FCRA and stated that restrictions in the name of “public interest” and “economic interest” failed the test of “legitimate restrictions” as they were too vague and gave the state excessive discretionary powers to apply the provision in an arbitrary manner.
Non-Governmental Organisations (NGOs) in India
- Worldwide, the term ‘NGO’ is used to describe a body that is neither part of a government nor a conventional for-profit business organisation.
- NGOs are groups of ordinary citizens that are involved in a wide range of activities that may have charitable, social, political, religious or other interests.
- In India, NGOs can be registered under a plethora of Acts such as the Indian Societies Registration Act, 1860, Religious Endowments Act,1863, Indian Trusts Act, etc.
- India has possibly the largest number of active NGOs in the world.
- Ministries such as Health and Family Welfare, Human Resource Department, etc., provide funding to NGOs, but only a handful of NGOs get hefty government funds.
- NGOs also receive funds from abroad, if they are registered with the Home Ministry under the Foreign Contribution (Regulation) Act (FCRA). There are more than 22,500 FCRA-registered NGOs.
- Registered NGOs can receive foreign contribution under five purposes — social, educational, religious, economic and cultural.
Why have NGOs been controversial recently?
- An Intelligence Bureau (IB) report, submitted to the PMO and National Security Adviser in 2019, alleged that several foreign-funded NGOs were stalling India’s economic growth by their obstructionist activism.
- In 2015, the Home Ministry had cancelled the FCRA licences of 10,000 organisations.
- The annual inflow of foreign contribution has almost doubled between the years 2010 and 2019, but many recipients of foreign contribution are being not utilised the same for the purpose for which they were registered or granted prior permission under amended provisions of the FCRA 2010.
MHA guidelines regarding FCRA and NGOs
- The Ministry of Home Affairs (MHA) issued new regulating guidelines to banks under Foreign Contribution (Regulation) Act, 2010. It states that the donations received in Indian rupees by non-governmental organisations (NGOs) and associations from any foreign source (even if that source is located in India at the time of such donation) should be treated as foreign contribution.
- Under the issued regulations, donations given in Indian rupees (INR) by any foreigner/foreign source including foreigners of Indian origin like Overseas Citizen of India (OCI) or Person of India Origin (PIO) cardholders should also be treated as foreign contribution.
- The guidelines mandate that good practices should be followed by NGOs in accordance with standards of global financial watchdog- Financial Action Task Force (FATF).
- MHA asked NGOs to inform the Ministry about “suspicious activities” of any donor or recipient and “take due diligence of its employees at the time of recruitment.”
Tomato Flu
Context:
Tamil Nadu has ramped up surveillance at its borders in the wake of “tomato flu” cases being detected in Kerala.
Relevance:
GS II- Health
Dimensions of the Article:
- What is tomato flu?
- How can tomato flu be treated? How to take care of it?
What is tomato flu?
- The flu that gets its name because of the red blister it causes.
- It affects children below five years of age.
- The symptoms of this flu, also called Tomato fever, include rashes, skin irritation and dehydration.
- According to several reports, the flu can also cause tiredness, joint pain, stomach cramps, nausea, vomiting, diarrhoea, coughing, sneezing, runny nose, high fever, and body ache.
- In some cases, it may also change the colour of the legs and the hands.
- The symptoms will resolve overtime on their own if supportive care is given.
How can tomato flu be treated? How to take care of it?
- Like other cases of flu, tomato fever is also contagious.
- If someone is infected with this flu, they need to be kept in isolation as this could spread rapidly from one person to another
- It is essential to prevent children from scratching the blisters caused by the flu.
- Proper rest and hygiene is also advised.
- Utensils, clothes and other items used by the infected persons must be sanitised to prevent the flu from spreading.
- Fluid intake would also help counteract dehydration.
Pantanal Wetlands
Context:
The world’s largest wetland, the Pantanal in South America, is at the risk of collapse due to legal land-use decisions and proposals.
Relevance:
GS III- Environment and Ecology
Dimensions of the Article:
- About Pantanal
- Significance of Pantanal
About Pantanal
- The Pantanal is a natural region encompassing the world’s largest tropical wetland area, and the world’s largest flooded grasslands.
- It is located mostly within the Brazilian state of Mato Grosso do Sul, but it extends into Mato Grosso and portions of Bolivia and Paraguay.
- It sprawls over an area estimated at between 140,000 and 195,000 square kilometres.
- Various sub regional ecosystems exist, each with distinct hydrological, geological and ecological characteristics; up to 12 of them have been defined.
- Roughly 80% of the Pantanal floodplains are submerged during the rainy seasons, nurturing a biologically diverse collection of aquatic plants and helping to support a dense array of animal species.
- Around 95% of the Pantanal is under private ownership, the majority of which is used for cattle grazing.
Significance of Pantanal
- The Pantanal is a refuge for iconic wildlife. This massive wetland has the largest concentration of crocodiles in the world, with approximately 10 million caimans.
- Jaguars, the largest feline in the Americas, hunt caiman in the Pantanal, which has one of the highest density of jaguars anywhere the world.
