18 MARCH 2016
Be bold in revisiting the sedition law
The government’s admission in Parliament that the present definition of ‘sedition’ in the Indian Penal Code is too wide and requires reconsideration, is the first indication that the fallout of the Kanhaiya Kumar episode has had a chastening effect on the ruling party. There seems to be a realisation that invoking the draconian penal provision against students of the Jawaharlal Nehru University was an act of overreach by the Delhi Police. Further, legal luminaries had pointed out that the essential ingredient of sedition — an imminent threat to public order — was absent in the case. Opinion is growing that the relevant provision, Section 124-A, has no place on the statute book. While Union Home Minister Rajnath Singh assured Opposition members that an all-party meeting on the issue would be convened after the Law Commission submitted its report on the matter, Minister of State for Home Kiren Rijiju made a pointed reference to concerns that the definition of ‘sedition’ was very wide. He also sought to clarify that he was not discussing the merits of the case against JNU students or defending the action of the Delhi Police, indicating a significant political climbdown. In other remarks, Mr. Rijiju recalled that the Law Commission in its 42nd Report had rejected the idea of repealing the section altogether. A look at the 1971 report shows that in fact it wanted to expand the term relating to exciting “disaffection towards the government established by law” to cover disaffection towards the Constitution, Parliament, the government and legislatures of the States, and the administration of justice.
In penal law, vague and ‘over-broad’ definitions of offences often result in mindless prosecutions based merely on the wording of the act that seems to allow both provocative and innocuous speeches to be treated as equally criminal. While upholding sedition as an offence that fell under the ‘public order’ restriction on free speech, the Supreme Court ruled that it ought to be invoked only if a particular speech or action had a “pernicious tendency to create public disorder”. Words such as “excites or attempts to excite disaffection” or “brings into or attempts to bring into hatred or contempt” are unacceptably vague, and the further explanation that ‘disaffection’ includes “disloyalty and all feelings of enmity” compounds the problem. The provision in effect appears to demand ‘affection’ towards the government, except for a general exception allowing disapproval of governmental measures. Two High Courts had declared Section 124-A unconstitutional before the Supreme Court upheld the section in 1962 in Kedar Nath Singh v. State of Bihar. The Law Commission, while revisiting the issue, should take into account recent developments, especially the flagrant instances of misuse of the sedition law and the tendency to invoke it against those involved in strident forms of political dissent and scathing criticism of governments. One way to limit its mischief is to narrow the definition; but a more rational and constitutional option would be to scrap the provision altogether.
Aadhaar disquiet in the House
When the Narendra Modi government chose to introduce the Aadhaar Bill in the Lok Sabha a couple of weeks ago as a money bill, the move came under sharp criticism. The Rajya Sabha’s recommendations on a money bill are non-binding, and the Lok Sabha can reject them. The BJP-led NDA does not have a majority in the Rajya Sabha, and this was therefore seen as a way to avoid a defeat of the legislation. On Wednesday, this controversial strategy allowed the Lok Sabha to pass the Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Bill, 2016, in its original form, ignoring a handful of amendments to the legislation in the Upper House. It is unfortunate that the government chose to so summarily toss aside the Rajya Sabha’s concerns. Giving legal validity to a project that seeks to provide unique identification numbers to more than a billion people, that too after many futile attempts over six years, is no doubt an achievement. But the Bill’s un-amended passage is a missed opportunity, for those amendments would have only strengthened the stated idea behind it, which is to provide an efficient and transparent process to transfer benefits and subsidies.
The Opposition’s effort in the Rajya Sabha, spearheaded by Congress Member of Parliament Jairam Ramesh, was focussed around issues of privacy as well as preventing the use of Aadhaar being made mandatory. Very serious concerns have been raised from various quarters that the proposed Aadhaar database facilitates mass surveillance, and that there are not enough checks to secure citizens’ data from misuse. The Aadhaar Bill has provisions to deal with data protection, but these are not sufficient because exceptions are built into confidentiality clauses. One of those exceptions can occur on the grounds of national security. One of the five changes successfully moved by Mr. Ramesh was to substitute the words “public emergency and public safety” for “national security”. A related amendment aimed to include the Central Vigilance Commissioner or the Comptroller and Auditor General of India in the committee to decide on requests for biometric data. He had also sought to make Aadhaar optional, by permitting alternative means of identification and giving individuals the choice to opt out of the system. According to the Bill, Aadhaar is necessary for receiving certain services and benefits. An amendment successfully moved by Mr. Ramesh sought to do away with a clause that deemed “nothing in this Act shall prevent the use of the Aadhaar number for establishing the identity of an individual for any purpose, whether by the state or any body, company or person.” Certainly, critics of the amendments would compare the Congress-led UPA’s version of the Aadhaar Bill and the NDA’s version to point out the Congress’s hypocrisy now that it is no longer in power. But that is a political point. What is important, and disquieting, is that the Opposition did seek to work in popularly voiced privacy concerns within the ambit of the legislation, and these interventions have been disregarded.