'There is no crime called being 'anti-national'

'Section 153A is not meant to protect fragile sentiments of the majority Hindu community who choose to get offended by slogans celebrating the success of the Pakistani cricket team.'

A spate of punitive actions have been taken against those celebrating either physically or on social media, Pakistan's victory over India in the T20 World Cup match on October 24.

These actions, Supreme Court lawyer and former additional solicitor general of India Indira Jaising tells Rediff.com Senior Contributor Jyoti Punwani are examples of standing the law on its head to target Muslims. The first of a two-part interview:

Will the action taken in UP and Srinagar against Kashmiri students and other individuals for celebrating Pakistan's victory over India stand up in court?
The IPC (Indian Penal Code) sections invoked are 153A, 505 (1) B, cyber terrorism, and sedition (for students in UP).
IPC section 507 (criminal intimidation by an anonymous communication), breach of peace, Section 66 of the Information Technology Act (against individuals in UP), and sec 13, UAPA (in Srinagar).

Clearly no.

Let us be clear about a few things.

It seems as if they are being accused of being 'anti-national'. To begin with there is no crime called being 'anti-national'. Since there is no such crime, the CM of UP threatened an FIR for sedition and causing communal disharmony.

Much has been written about sedition, but not enough about Section 153A. This section has an interesting journey. It was amended in 1969 to deal with communal disharmony.

It was actually meant to discourage communalism and was intended to protect our human rights, to prevent causing harm to someone on the basis of their religious identity.

The Bill amending the section stated:

Pursuant to the acceptance by the Government of the recommendations of the National Integration Council to prevent and remove communal and regional tensions, it is proposed to amend sections 153A and 505 IPC and Schedule II of the Code of Criminal Procedure with a view to amplifying the scope of these sections, providing enhanced punishment for offences under these sections committed in a place of worship, and making offences under sections 153A IPC and 505 IPC (only offences relating to enmity or hatred between communities, etc.) cognizable.

2. A provision is also being made whereby offences under section 153A and provision made in the Bill under section 505 IPC would constitute a disqualification under section 8 of the Representation of the People Act, 1951.

Prior to amendment, the section read as follows:

153-A. Promoting enmity between classes. -- Whoever by words, either spoken or written, or by signs or by visible representations, or otherwise, promotes or attempts to promote feelings of enmity or hatred between different classes of the citizens of India, shall be punished with imprisonment which may extend to two years, or with fine or with both.

After amendment it reads as follows:

153A. Promoting enmity between different groups on grounds of religion, race, place of birth, residence, language, etc., and doing acts prejudicial to maintenance of harmony. -- (1) Whoever --

• (a) by words, either spoken or written, or by signs or by visible representations or otherwise, promotes or attempts to promote, on grounds of religion, race, place of birth, residence, language, caste or community or any other ground whatsoever, disharmony or feelings of enmity, hatred or ill-will between different religious, racial, language or regional groups or castes or communities, or
• (b) Commits any act which is prejudicial to the maintenance of harmony between different religious, racial, language or regional groups or castes or communities, and which disturbs or is likely to disturb the public tranquility.

Recently the Supreme Court, while quashing the FIR against 'Shillong Times' editor Patricia Mukhim pointed out that Section 153 A required

'disorder or disturbance of law and order or affecting public tranquillity… The intention to cause disorder or incite people to violence is the sine qua non of the offence under Section 153 A IPC and the prosecution has to prove the existence of mens rea in order to succeed.The gist of the offence under Section 153 A IPC is the intention to promote feelings of enmity or hatred between different classes of people.'

Thus, you need imminent threat of violence coupled with the intention to create hatred between different communities of people.

The problem lies with the amended section which added subsection (b): 'any act which is prejudicial to the maintenance of harmony between different religious, racial, language or regional groups or castes or communities, and which disturbs or is likely to disturb the public tranquillity.'

This lowers the bar; from creating feelings of 'hatred' (before the amendment), to 'disharmony' (after the amendment). This is a vague expression and requires clarification by the court.

I am aware of cases where the section has been used against Dalits protesting oppression by Savarnas, thereby criminalising the right to dissent and protest peacefully, in the name of causing 'disharmony' between Dalits and Savarnas.

It stands to reason that the section was intended to be used against powerful majority groups who seek to unleash communal violence against minority communities. Instead, we see it being invoked against the minority community for presumably being hostile to the majority community.

This is standing the law on its head, a strategy which the government has adopted in relation to all criminal laws, a strategy being used to target minority communities.

The evidence is clear. Since 2014 Muslims are disproportionally charged with offences of sedition and under Section 153A. The section is liberally used or rather misused to target the minority community when no other law is available.

The section is not meant to protect fragile sentiments of the majority Hindu community who choose to get offended by slogans celebrating the success of the Pakistani cricket team. The fact is that the Pakistani team won and there was no misrepresentation.

Fundamentally, we need to understand that criminal laws are to aid the vulnerable, not the oppressors. They are not intended to protect sentiments or emotional hurt, but deal with overt acts of people which cause violence.

Cybercrime is a serious matter and intended to cover issues such as disabling an entire economic system or essential infrastructure as an act of terrorism. I cannot see its relevance in this situation. This is sheer abuse of the process of law.

Similarly, UAPA cannot be invoked since no 'terrorist act' is alleged.

But we all know that when it comes to criminal law, the process is the punishment and the damage is done by the filing of an FIR leading to potential arrest.

• Part II: 'Decisions to prosecute are outsourced to vigilante groups'

Feature Presentation: Aslam Hunani/Rediff.com