Explained: Sedition, Defamation, AFSPA laws that Congress wants to repeal or amend

Since its introduction in 1870, meaning of the term, as well as its ambit, has changed significantly. Previously, it was used by the British to target nationalist leaders. Bal Gangadhar Tilak, charged twice under the law, was sentenced to six years imprisonment from 1908 to 1914 at Mandalay (present-day Myanmar). Mahatma Gandhi was also charged under the section for his articles in Young India. He famously called the defamation law the “prince” among criminal laws which thwarted free speech in the country.

After Independence, there were discussions in the Constituent Assembly around the subject, with many of its members being charged under the section themselves. Yet, the section continued to remain in force.

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In 1962, the Supreme Court, while curtailing the extent of its application, upheld its constitutionality. Then Chief Justice BP Sinha, in the Kedar Nath case, observed: “Every state, whatever its form of government, has to be armed with the power to punish those who by their conduct, jeopardise the safety and stability of the state, or disseminate such feelings disloyalty as have tendency to lead to the disruption of the state or to public disorder.”

Since then, the courts in the country have repeatedly observed that the section cannot be used to curb criticism of the government, and can only be used as a measure for maintaining public order. Nevertheless, successive governments have been accused of misuse – the UPA during the Anna Hazare protests in 2012, had charged anti-corruption cartoonist Aseem Trivedi. The present government’s accusing of student leaders Kanhaiya Kumar, Umer Khalid and Anirban Bhattacharya has also been criticised.

Defamation

Congress position ­– omit

India is one of the few countries where defamation is both a civil and a criminal offence. As a criminal offence, it is bailable, non-cognisable and compoundable, punishable with imprisonment up to two years, or with fine, or with both.

According to Section 499 of the Indian Penal Code: “Whoever, by words either spoken or intended to be read, or by signs or by visible representations, makes or publishes any imputation concerning any person intending to harm, or knowing or having reason to believe that such imputation will harm, the reputation of such person, is said, except in the cases hereinafter expected, to defame that person.”

Once charged in a criminal trial, the accused has to prove that they are covered under any of the 10 exceptions to the section, which range from an imputation which is truthful, to one which is made in good faith.

The English common law has different punishments for libel (written) and slander (spoken). India does not make this distinction – both being covered under the meaning of Section 499 itself.

If removed from the IPC, defamation would no longer remain a criminal offence. It would then continue as a civil wrong or tort, which in India is not stipulated by legislation and is guided by judge-made law.

In the US, a distinction has been made between private and political defamation, where more burden of proof is placed on the prosecution in the latter. In the words of former Justice Brennan of the US Supreme Court: “The censorial power is in the people over the Government, and not in the Government over the people.”

Like sedition, many governments have been accused of misusing the criminal law for suppressing legitimate criticism.

Rahul Gandhi addresses an event after releasing the Congress’ manifesto for the upcoming Lok Sabha elections in New Delhi, Tuesday, April 02, 2019. (PTI Photo: Shahbaz Khan)

Armed Forces Special Powers Act (AFSPA)

Congress position – amend

The manifesto says, “Strike a balance between the powers of security forces and the human rights of citizens, and to remove immunity for enforced disappearances, sexual violence, and torture.”

The preamble of the law defines it as: “An Act to enable certain special powers to be conferred upon members of the armed forces in disturbed areas.”

Passed in 1958 for the North-East and in 1990 for Jammu & Kashmir, the law gives armed forces special powers to control “disturbed areas”, which are designated by the government when it is of the opinion that a region is in such a disturbed or dangerous condition that the use of armed forces in aid of civil power is necessary.

Under its provisions, the armed forces have been empowered to open fire, enter and search without warrant, and arrest any person who has committed a cognisable offence, all while having immunity from being prosecuted.

Currently, AFSPA is implemented in Jammu & Kashmir, Assam, Nagaland, and parts of Arunachal Pradesh and Manipur.

The law has been repealed where insurgencies have subsided, and when governments have gained confidence of managing the region using the police force. Tripura became AFSPA-free in 2015, and in 2018 the Centre also removed Meghalaya from the list, while also restricting its use in Arunachal Pradesh.

Critics both in India and abroad have criticised government agencies for acting with impunity under AFSPA. Manipuri activist Irom Sharmila had been on a 16-year hunger strike in protest against AFSPA. The Jeevan Reddy Committee formed in 2004 has recommended a complete repeal of the law.