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Tuesday, May 24, 2022

3 Things

Our flagship daily news show, where hosts Shashank Bhargava and Snigdha Sharma talk to in-house experts about what is going on and why you need to care about it.

Episode 1995 May 13, 2022

SC order on sedition, J&K delimitation, and Aadhar data

In this episode, Apurva Vishwanath joins host Snigdha Sharma to discuss the origin and misuse of the law of sedition in light of the Supreme Court’s latest directive on the colonial era law.

Next, Bashaarat Masood tells us about the J&K Delimitation Commission’s final notification.

And finally, Sofi Ahsan talks about the UIDAI’s response to Delhi Police’s plea asking for access to Aadhar data to solve a murder case.


TRANSCRIPT

Snigdha Sharma: Hi I’m Snigdha Sharma and you are listening to the 3 Things news show. In this episode we discuss the Supreme Court’s latest directive on sedition. We also talk about the Jammu and Kashmir delimitation Commission’s final notification and the latest on Adhaar data, beginning with sedition. On Wednesday, the Supreme Court passed an interim order putting on whole section 124 A of the Indian Penal Code that defines and penalises sedition, a three judge bench headed by Chief Justice of India N.V Ramona has now put the onus on the government to prevent the misuse of the controversial law. In fact, during the hearing, even the attorney general for India KK Venugopal, raised concerns about the rampant abuse of the law. The central government, in response to the Supreme Court filed an affidavit stating that it will reconsider the law and requested that the challenge proceedings be kept on hold until then, earlier, the court in its oral observations on the matter had clearly disapproved of the misuse of the colonial era law. The Apex court therefore, on Wednesday, he said that it expects till the reexamination is complete, it would be appropriate not to continue the usage of the law by governments. So to understand how the law is misused, and why the top courts directive is important, we spoke to Apurva Vishwanath. Apurva, can you begin by telling us about the origins of the law of sedition.

Apurva Vishwanath: So in India, section 124 A of the Indian Penal Code, which defines and penalises the offence of sedition was not something that was included in the original enactment of the IPC. So in 1860, Thomas Macaulay when he drafted the Indian Penal Code, he had included the offence of sedition, but legal experts believe that somehow this was accidentally omitted. So in about 1980, there was a special legislation that was brought in and the Indian Penal Code was amended to include section 124 A, so that A signifies that it was a subsequent amendment. So that’s how the offensive sedition came into the books in India. But if you look at the origins of this in common law, you know, it comes from of course, the English understanding that the king was considered to be the holder of divine rights and disobeying the king or showing this affection to the king would be considered an offence and that’s the origin of the law of sedition. So of course, in India, after it was enacted, the Sedition law was primarily used against freedom fighters to curb the Indian independence movement by the British. But subsequently, despite the Constitution, the law has survived to be on the statute books.

Snigdha Sharma: Right now, tell us about the latest bunch of petitions.

Apurva Vishwanath: So section 124. A in the past has been upheld by the Supreme Court. We have a landmark ruling in 1962, a five judge bench of the Supreme Court saying that the prohibition is constitutional. However, a new batch of petitions and the petitioners here include journalists to politicians who have challenged the provision once again, and have also contested the validity of the 1962 ruling. So the Supreme Court had to decide if the 1962 ruling was indeed correctly decided, and in the process rule on the validity of section 124 A itself. What happened is that the Supreme Court gave a prima facie indication that it believes that the Sedition law is not in consonance with the goals of the Constitution and asked the centre to respond to the petitions. Here what happens next is that the attorney general for India KK Venugopal, said he is in favour of the court deciding against keeping the law on the books and the central government initially defended the provision, it argued in favour of detaining the provision. The court then asked the central government to put it stand in an affidavit, although initially it defended the law. The centre then later came back and told the court that it will review the law on its own. So Solicitor General Tushar Mehta invoked the Prime Minister’s opinion on this issue and said that, you know, in the light of India celebrating its 75th year of independence, the government would review the law and sort of take a call on this colonial legislation.

Snigdha Sharma: Right. So now approval, can you break down the Supreme Court’s latest directive about the usage of sedition? So based

Apurva Vishwanath: So based on the Government’s stand in court that it is reviewing the law, the Supreme Court said that it would not be appropriate to continue with the prohibition in the meantime. So the court has also expressed a prima facie view, which is that it says that the rigour of section 124 A of the IPC is not in tune with the current social milieu and is intended for a time when this country was under a colonial regime significantly. The court also says that the centre also agrees with this prima facie view. So this is perhaps the first time that a criminal provision which has you know, in been enforced for 130 years is going to be virtually kept in abeyance. So what the court has done is it has told the government that no fresh cases of sedition should be registered. And for the existing cases that are already sort of in various stages of litigation from investigation to pending trial, these will be kept in abeyance. So since they are going to be kept in abeyance. That means there is onus on the government to sort of make this review a time bound process and come up with a decision soon. So the language that the court uses is that it hopes and expects the government to not file any fresh cases of sedition. And the court also says in case there are fresh cases, then the parties can approach to court and cite this order and seek bailout seek protection of the courts. So it is also accounting for potential misuse an argument that has been made time and again, and also by the petitioners in this case to in favour of repealing the law. So the court is cognizant that the law has been misused in the past and that stands is one of the reasons why the law should be reviewed now.

Snigdha Sharma: So Apurva you mentioned the centre stand vis-a-vis? sedition, right? Can you tell us how it has evolved over time?

Apurva Vishwanath: Like we discussed earlier, although this has been used by colonial powers in India to curb the independence movement, subsequent governments post independence have also not shown any inclination to do away with this law. This provision has been used by governments it took a political dissent in the country and many of these frivolous cases. And this is something that many reports of the Law Commission and also the courts have noted in the past. So despite guidelines by the court despite checks and balances, for example, one of the checks and balances is that the government must actually give sanction in these cases for prosecuting any person. But more often than not even before the sanction comes the filing of the FIR, arrest of the person, framing of charges, this process becomes the punishment. So this use of the Sedition law is not new. It’s been talked about since the 1950s. But this law has continued to be on the books because several governments use this for various political reasons. However, in the last few years when conversations around sedition law have been louder, the Congress, which is now in the opposition, has said that if it comes to power, the Congress Party would have taken a relook at the Sedition law. But at that time, the Modi government had said that this is not a desirable course of action, and that retaining the Sedition law is important to protect, quote, unquote, the sovereignty and integrity of India. And this is something that they said in court as well. In their first affidavit, the government defended the law and said that isolated cases of misuse cannot be a reason do away with this provision. And then this provision would be needed. In fact, the Solicitor General talked about genuine cases of sedition, which could include terror cases or money laundering cases. But when it was clear, the court was going to rule one way or the other on sedition and the serious examination was imminent. The government again changed it stand and said the Prime Minister’s intentions are that this colonial law must be reviewed. So the government has taken a high ground in court and it will have to be seen if the Court will hold the government to its word in the next hearing.

Snigdha Sharma: Right. Now, Apurva next, if you could talk about the scope within the law to be misused, you know, maybe with some instances where we have seen it happen.

Apurva Vishwanath: So if you look at the text of section 124, a itself there are these words, which have sweeping wide definitions, which include attempts to bring hatred or contempt or attempts to excite disaffection towards the government. These are bide interpretations. And often the person making this interpretation of whether a speech is a valid exercise of your right to freedom of speech and expression, or a seditious speech is a police officer. So it is the thanedar who while registering the case has to make this nuanced constitutional distinguishing between what is regular speech and what a seditious speech and that’s where the scope for misuse sort of begins. And then the next step is you have magistrates, who often without proper application of mine, grant remand grant custody is and allow these cases to be registered. So eventually for a person who is arrested on you know, a flimsy case his recourse is to go to a higher court, often to a high court or the Supreme Court and see quashing of these charges against him. So many of these cases don’t stand if you look at the rate of conviction for sedition is quite low. But initially what happens is the case being registered the arrest and that process is what becomes a punishment. One of the recent examples that we saw somebody was accused of sedition for completely frivolous reason was former Union Minister Arun Jaitley. He wrote a blog post criticising a judgement of the Supreme Court and a case of sedition was filed against him. The Allahabad high court actually quashed those charges. But that’s the process we’re talking about. In Maharashtra, you saw claim about chanting Hanuman Chalisa, before the chief minister’s office attracted charges of sedition against lawmaker, and this is something that even the Attorney General KK Venugopal, flagged before the Supreme Court, although in the 1962 judgement, the Supreme Court restricted the scope of you know, this definition of sedition and said that speech, which only could lead or lead to disruption of public order, and public order is something that is defined in the Constitution only that would qualify as sedition. So even this deviation from the text of the law itself, because public order is not found in Section 124. A, it is something that the court has read into the prohibition. So this huge change in definition also is sometimes hard to percolate from the top down. So often you will have cases which do not fall under the judgement of the Supreme Court, but still are filed against citizens. So the guidelines the Supreme Court has given is often invoked in the misuse of it rather than the proper use of those guidelines.

Snigdha Sharma: Right. Now, Apurva can you tell us the most important or most pertinent questions that, you know, cases challenging sedition have raised over time.

Apurva Vishwanath: So the big case that involves sedition is, of course, the law that has to till now is the 1962 ruling and the Kedar Nath Singh but of course, subsequently after Kedar Nath Singh also, there have been questions around sedition law, but the understanding has been so far that the law is valid and constitutional. But the court has said, for example, in an earlier case in 1995, said that the real intent of the speech must be taken into account before calling it seditious. In the case of Balwant Singh versus the state of Punjab the Supreme Court said that mere raising of slogans you know, even if they could be seen as inflammatory and against the government cannot be considered sedition. In this case, there were no Khaalistani slogans that two individuals had raised in a public space. And the court said this cannot account for sedition. And the other case we discussed was the Arun Jaitley case. Last year, you had the court quash proceedings against journalist Vinod Dua, you know, he made some criticism about the Prime Minister’s handling of the COVID pandemic and cases of sedition were filed against him. But one other important aspect is where the court sort of expands on this expands on sedition is the cases of Dr. Binayak Sen. For example, in 2011, the court said that person can be convicted for sedition even if he’s not the author of the seditious speech, which means he hasn’t spoken or written those words, but has been involved in circulating it even that could qualify as sedition. So the court has sort of toyed with this law since Kedar Nath Singh before the 1962 Kedar Nath ruling came. Two high courts, the Punjab and Haryana High Court and the Allahabad High Court in the 1950s had struck down the provision as unconstitutional. So those were overturned in 1962, by the Kedar Nath ruling, so the provision has had like twisted legacy. The courts have also been in two minds about this. But now again, there is a serious reconsideration of the law nearly 60 years after the court upheld it earlier.

Snigdha Sharma: And finally, over if you could tell us what are the possible outcomes, you know, in the future when a final decision is made on sedition?

Apurva Vishwanath: So the final word on the sedition law now could be with the government first. So the government has told the court that it is going to review the law. And the court has also recorded that even the government agrees with the primer facie view that the provision is unconstitutional. So the route is either for the parliament to repeal it, and if not, the court will have to hear the case fully and a seven judge bench because the Kedarnath ruling is a five judge bench and to overrule that you will need a seven judge bench and a seven judge bench has to hear this in totality and decide whether they will have to strike down the law.

Snigdha Sharma: Now coming to Jammu and Kashmir. On Thursday, the delimitation commission in its final order for the Union Territory of Jammu and Kashmir recommended seven additional constituencies, six for Jammu and one for Kashmir. Now the total number of seats in the Union Territory has gone up to 90 from the earlier 83. The panel’s decisions are politically significant, and have met with criticism amongst mainstream parties in the valley. Political parties are saying that the Jammu region has got more seats relative to its population compared to the Kashmir valley and that this violates the population criteria. However, now with the final order notified all eyes will be on the election commission and the Union Government regarding the timing of assembly elections. So to find out more about this final order, we were joined by in an expresses Bashaarat Masood. Bashaarat. Can you begin by telling us why is this process of redrawing constituencies being carried out in Jammu and Kashmir?

Bashaarat Masood: The delimitation exercise in Jammu and Kashmir was necessary after the Jammu and Kashmir reorganisation act 2019. While they were at 83 seats in the Union Territory of Jammu and Kashmir, the reorganisation act, increased these seats 90. So there was this need to increase some more seats for the delimitation that had to be started. But we also need to understand that there is a total freeze on any kind of delimitation exercise throughout India. We also need to understand that prior to August  2019, delimitation exercise was mandated due to different sets of rules for limitation is that in Jammu and Kashmir, the parliamentary constituencies who are delimited under the central acts while the assembly constituencies while to be delimited and the Jammu and Kashmir representative act of 93 but also the reorganisation act, both the delimitation of the assembly seats as well as the parliamentary seats came under the central act. So there was need to start this exercise for delimitation in Jammu and Kashmir.

Snigdha Sharma: Right. So Bashaarat we know that the entire exercise has been surrounded by controversy, mainstream political parties in the valley. They are opposing it. Can you help us understand why?

Bashaarat Masood: It is true that the whole exercise of delimitation is controversial right from the beginning. There are two things to it. One is that the centre has put a total freeze on delimitation exercise in India and also the erstwhile legislative assembly had also put a freeze on any delimitation in size till 2026. This freeze was put through to an amendment in Jammu and Kashmir when Farooq Abdullah was the Chif Minister of Jammu and Kashmir so as to be part of the delimitation process in India. So the question that is raised with the political parties is that when there was a total freeze throughout the country on delimitation excise why there was need to single out Jammu and Kashmir. That’s one reason and the second reason is this was necessary. This whole exercise was necessary after the J and K reorganisation act 2019. And now that reorganisation Act and the abrogation of Jammu and Kashmir special status that has been challenged in the court is still pending with the Supreme Court is likely will come up in the coming days in Supreme Court. So the whole process sub judice tomorrow if the Supreme Court makes this reorganisation act or abrogation, null and void, so this whole process will be null and void. So these are some of the reasons that political party this has been controversial, this whole incessant condition right from the beginning, and political parties how explicit their reservation who were in this process. This change in seats like the increasing seats of Jammu by six and increasing Kashmir, but only one seat. It has brought the dream of Bharatiya Janta party, the Bharatiya Janta party had a dream that to install a Hindu chief minister in Jammu and Kashmir it has brought that dream closer to the reality now there are chances that now that Jammu seats have one equals so BJP somehow manages a majority like that it has been doing in past also in Jammu region, and with some little help from some airlines in Kashmir Valley, BJP can come to power and it can install a new chief minister that has been long term long cherished dream. So that is why the political parties in Kashmir are saying that the delimitation commission has essentially been an extension of BJP’s political agenda. They say that despite being a statutory body, it has followed in the footsteps of BJP agenda, and has done this whole exercise based on BJP’s political games.

Snigdha Sharma: So Bashaarat seven assembly seats have been added right, six are in Jammu and one is in Kashmir, even though Kashmir has a bigger population. So tell us what does this change mean for these areas?

Bashaarat Masood: In the erstwhile assembly of Jammu and Kashmir, Jammu region had 37 seats while the Kashmir region had 46 seats. Now, after this delimitation exercise, the award the delimitation award Jammu region will have 43 seats that is an increase of six seats. Well, Kashmir region would have only 47 seats that’s because of just one seat. This despite the fact that Kashmir has more population than Jammu. Now, what does it mean on ground on ground it means that there will be a one seat reserved for everyone like 25,000 people in Jammu region while the same seat will be reserved for one lakh 46,000 People in Kashmir valley. Also the fact is that Jammu has a population of 44% of Jammu and Kashmir and it has got a share of 48 person while Kashmir having a population for this 56 person has got a seat share of only 52%. So that has been criticised and that has been questioned by political parties that sole criteria for this whole exercise itself, says the population of an area. But here the delimitation commission has gone beyond that. And it has set some more parameters like remoteness of area and its closeness to the border. This way Kashmir has been put at a disadvantage. Kashmir has got fewer seats than it should have normally got as per its population.

Snigdha Sharma: And now coming to Aadhaar the Unique Identification Authority of India or UIDAI, has opposed a petition by the Delhi police that had sought directions from the High Court, which would essentially allow investigators to match a suspect picture and chance prints from the crime scene with the Aadhaar database to help identify the accused in a case of murder. However, the UIDAI which issues the unique Aadhaar number to residents of India is prohibited by law from sharing any core biometric information with the police. The statutory authority has also said it is not technologically feasible to accede to the request of the police. So to find out more about the UIDAI is response Sophi Ahsan joined the show. Sophi can you tell us why is a Delhi police asking for access to Aadhaar data.

Sophi Ahsan: So this case actually dates back to June 2018, a jeweller Hemant Kumar was murdered by robbers in a shop in Adarsh Nagar area of Northwest Delhi when Kaushik was trying to grab one of the suspects he was shot and ultimately he was declared dead at the hospital. So police had recovered 14 Chance prints and footage from a nearby CCTV camera from the area showing one of the suspects. So this case has been going on since 2018. victim’s father Vinod Kumar approached the High Court in 2021 saying that the investigation has not progressed since then, and no one has been arrested. Ultimately, Delhi High Court told the court that it had the chance prints it has these pictures, but it has not found any match in the database already available it so they floated a proposal that they could match it with Aadhaar database to find out the suspect. So, for that, they filed a petition before the Delhi High Court under Section 33 of this Adhaar act under which an all year high court judge can pass an order for sharing of information with anyone. So they sought matching of the chance points they had taken from the crime scene in this product case with the Aadhaar database.

Snigdha Sharma: Right. So, tell us what kind of data is collected for Adhaar and what is the UIDAI’s responsibility in this regard.

Sophi Ahsan: So Unique Identification Authority of India which collects the Aadhaar data and makes Aadhaar card for residents collects two kinds of information one is the demographic information and second is the biometric information. Demographic information includes name, address, date of birth, gender, these are mandatory kinds of information they collect and then there are optional kinds of informations like mobile phone number, email address, who are essential and important information they collected the biometric information which includes these 10 fingerprints a person has and two iris scans, that is the scans of the eye and the residents photograph. So when Aadhaar authority collects information they give a 12 digit unique number and or your Aadhaar card is brought out from the authorities.

Snigdha Sharma: Right. So Sophi, what does the law say about the confidentiality of the biometric data that is collected for Aadhaar.

Sophi Ahsan: So there is section 29 of the Aadhaar Act, which prohibits the Aadhaar authority from sharing core biometric information, which is the fingerprint, the iris scan or any other set of biological attributes with any agency for any reason whatsoever. So there is a total bar on sharing of information and it includes for investigating agencies also. And as per the Unique Identification Authority of India, no other can be shared by any individual identity without the consent of the resident or the holder of that other card. However, there is an exception section 33 provides a provision that any person can approach the High Court for disclosure of information, including the photograph or authentication records, but again, no biometric information can be disclosed. So the court can pass an order. But again, here, here’s the catch, the court has to first give an opportunity of hearing to the authority as well as the person whose other number information is being sought. So there is also another exception, that’s a National Security Act.

Snigdha Sharma : Okay. And finally, if you could tell us what is the UIDAI is saying about the Delhi police’s plea?

Sophi Ahsan: The Unique Identification Authority of India has cited two reasons for denying the information. First, they cite the law which says that information can’t be shared that too without giving an opportunity of hearing the person. So in this case, as we already know that the other person is unknown. So, the court obviously cannot give a right to hearing to that person who is unknown. Second reason the Aadhaar 40s cited is that they collect in the biometric information or demographic information in such a way that it may not be unfeasible to share for forensic purposes, like the biometric data cannot be used for random matching purposes. They say that the technology is only available if you give an other number only then you can bring out information. It’s not like him you can put in a fingerprint and the information comes out. So, the technology is also such that the information cannot be shared for forensic purposes as per the Aadhaar authority. So, these are the two reasons that have been given by Aadhaar authorities.

Snigdha Sharma: You were listening to three things by the Indian Express today’s show was written and produced by me Snigdha Sharma and was edited and mixed by Suresh Pawar. You can follow us and leave us feedback on Facebook or Twitter @expresspodcasts or send us an email at podcasts@indianexpress.com. And if you liked the show, please do subscribe and leave us a review wherever you get your podcasts from, so more people can find us. You can also look for us in the audio section in the top right corner of our website, indianexpress.com

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SC order on sedition, J&K delimitation, and Aadhar dataIn this episode, Apurva Vishwanath joins host Snigdha Sharma to discuss the origin and misuse of the law of sedition in light of the Supreme Court’s latest directive on the colonial era law. Next, Bashaarat Masood tells us about the J&K Delimitation Commission’s final notification. And finally, Sofi Ahsan talks about the UIDAI's response to Delhi Police's plea asking for access to Aadhar data to solve a murder case. TRANSCRIPT Snigdha Sharma: Hi I'm Snigdha Sharma and you are listening to the 3 Things news show. In this episode we discuss the Supreme Court's latest directive on sedition. We also talk about the Jammu and Kashmir delimitation Commission's final notification and the latest on Adhaar data, beginning with sedition. On Wednesday, the Supreme Court passed an interim order putting on whole section 124 A of the Indian Penal Code that defines and penalises sedition, a three judge bench headed by Chief Justice of India N.V Ramona has now put the onus on the government to prevent the misuse of the controversial law. In fact, during the hearing, even the attorney general for India KK Venugopal, raised concerns about the rampant abuse of the law. The central government, in response to the Supreme Court filed an affidavit stating that it will reconsider the law and requested that the challenge proceedings be kept on hold until then, earlier, the court in its oral observations on the matter had clearly disapproved of the misuse of the colonial era law. The Apex court therefore, on Wednesday, he said that it expects till the reexamination is complete, it would be appropriate not to continue the usage of the law by governments. So to understand how the law is misused, and why the top courts directive is important, we spoke to Apurva Vishwanath. Apurva, can you begin by telling us about the origins of the law of sedition. Apurva Vishwanath: So in India, section 124 A of the Indian Penal Code, which defines and penalises the offence of sedition was not something that was included in the original enactment of the IPC. So in 1860, Thomas Macaulay when he drafted the Indian Penal Code, he had included the offence of sedition, but legal experts believe that somehow this was accidentally omitted. So in about 1980, there was a special legislation that was brought in and the Indian Penal Code was amended to include section 124 A, so that A signifies that it was a subsequent amendment. So that's how the offensive sedition came into the books in India. But if you look at the origins of this in common law, you know, it comes from of course, the English understanding that the king was considered to be the holder of divine rights and disobeying the king or showing this affection to the king would be considered an offence and that's the origin of the law of sedition. So of course, in India, after it was enacted, the Sedition law was primarily used against freedom fighters to curb the Indian independence movement by the British. But subsequently, despite the Constitution, the law has survived to be on the statute books. Snigdha Sharma: Right now, tell us about the latest bunch of petitions. Apurva Vishwanath: So section 124. A in the past has been upheld by the Supreme Court. We have a landmark ruling in 1962, a five judge bench of the Supreme Court saying that the prohibition is constitutional. However, a new batch of petitions and the petitioners here include journalists to politicians who have challenged the provision once again, and have also contested the validity of the 1962 ruling. So the Supreme Court had to decide if the 1962 ruling was indeed correctly decided, and in the process rule on the validity of section 124 A itself. What happened is that the Supreme Court gave a prima facie indication that it believes that the Sedition law is not in consonance with the goals of the Constitution and asked the centre to respond to the petitions. Here what happens next is that the attorney general for India KK Venugopal, said he is in favour of the court deciding against keeping the law on the books and the central government initially defended the provision, it argued in favour of detaining the provision. The court then asked the central government to put it stand in an affidavit, although initially it defended the law. The centre then later came back and told the court that it will review the law on its own. So Solicitor General Tushar Mehta invoked the Prime Minister's opinion on this issue and said that, you know, in the light of India celebrating its 75th year of independence, the government would review the law and sort of take a call on this colonial legislation. Snigdha Sharma: Right. So now approval, can you break down the Supreme Court's latest directive about the usage of sedition? So based Apurva Vishwanath: So based on the Government's stand in court that it is reviewing the law, the Supreme Court said that it would not be appropriate to continue with the prohibition in the meantime. So the court has also expressed a prima facie view, which is that it says that the rigour of section 124 A of the IPC is not in tune with the current social milieu and is intended for a time when this country was under a colonial regime significantly. The court also says that the centre also agrees with this prima facie view. So this is perhaps the first time that a criminal provision which has you know, in been enforced for 130 years is going to be virtually kept in abeyance. So what the court has done is it has told the government that no fresh cases of sedition should be registered. And for the existing cases that are already sort of in various stages of litigation from investigation to pending trial, these will be kept in abeyance. So since they are going to be kept in abeyance. That means there is onus on the government to sort of make this review a time bound process and come up with a decision soon. So the language that the court uses is that it hopes and expects the government to not file any fresh cases of sedition. And the court also says in case there are fresh cases, then the parties can approach to court and cite this order and seek bailout seek protection of the courts. So it is also accounting for potential misuse an argument that has been made time and again, and also by the petitioners in this case to in favour of repealing the law. So the court is cognizant that the law has been misused in the past and that stands is one of the reasons why the law should be reviewed now. Snigdha Sharma: So Apurva you mentioned the centre stand vis-a-vis? sedition, right? Can you tell us how it has evolved over time? Apurva Vishwanath: Like we discussed earlier, although this has been used by colonial powers in India to curb the independence movement, subsequent governments post independence have also not shown any inclination to do away with this law. This provision has been used by governments it took a political dissent in the country and many of these frivolous cases. And this is something that many reports of the Law Commission and also the courts have noted in the past. So despite guidelines by the court despite checks and balances, for example, one of the checks and balances is that the government must actually give sanction in these cases for prosecuting any person. But more often than not even before the sanction comes the filing of the FIR, arrest of the person, framing of charges, this process becomes the punishment. So this use of the Sedition law is not new. It's been talked about since the 1950s. But this law has continued to be on the books because several governments use this for various political reasons. However, in the last few years when conversations around sedition law have been louder, the Congress, which is now in the opposition, has said that if it comes to power, the Congress Party would have taken a relook at the Sedition law. But at that time, the Modi government had said that this is not a desirable course of action, and that retaining the Sedition law is important to protect, quote, unquote, the sovereignty and integrity of India. And this is something that they said in court as well. In their first affidavit, the government defended the law and said that isolated cases of misuse cannot be a reason do away with this provision. And then this provision would be needed. In fact, the Solicitor General talked about genuine cases of sedition, which could include terror cases or money laundering cases. But when it was clear, the court was going to rule one way or the other on sedition and the serious examination was imminent. The government again changed it stand and said the Prime Minister's intentions are that this colonial law must be reviewed. So the government has taken a high ground in court and it will have to be seen if the Court will hold the government to its word in the next hearing. Snigdha Sharma: Right. Now, Apurva next, if you could talk about the scope within the law to be misused, you know, maybe with some instances where we have seen it happen. Apurva Vishwanath: So if you look at the text of section 124, a itself there are these words, which have sweeping wide definitions, which include attempts to bring hatred or contempt or attempts to excite disaffection towards the government. These are bide interpretations. And often the person making this interpretation of whether a speech is a valid exercise of your right to freedom of speech and expression, or a seditious speech is a police officer. So it is the thanedar who while registering the case has to make this nuanced constitutional distinguishing between what is regular speech and what a seditious speech and that's where the scope for misuse sort of begins. And then the next step is you have magistrates, who often without proper application of mine, grant remand grant custody is and allow these cases to be registered. So eventually for a person who is arrested on you know, a flimsy case his recourse is to go to a higher court, often to a high court or the Supreme Court and see quashing of these charges against him. So many of these cases don't stand if you look at the rate of conviction for sedition is quite low. But initially what happens is the case being registered the arrest and that process is what becomes a punishment. One of the recent examples that we saw somebody was accused of sedition for completely frivolous reason was former Union Minister Arun Jaitley. He wrote a blog post criticising a judgement of the Supreme Court and a case of sedition was filed against him. The Allahabad high court actually quashed those charges. But that's the process we're talking about. In Maharashtra, you saw claim about chanting Hanuman Chalisa, before the chief minister's office attracted charges of sedition against lawmaker, and this is something that even the Attorney General KK Venugopal, flagged before the Supreme Court, although in the 1962 judgement, the Supreme Court restricted the scope of you know, this definition of sedition and said that speech, which only could lead or lead to disruption of public order, and public order is something that is defined in the Constitution only that would qualify as sedition. So even this deviation from the text of the law itself, because public order is not found in Section 124. A, it is something that the court has read into the prohibition. So this huge change in definition also is sometimes hard to percolate from the top down. So often you will have cases which do not fall under the judgement of the Supreme Court, but still are filed against citizens. So the guidelines the Supreme Court has given is often invoked in the misuse of it rather than the proper use of those guidelines. Snigdha Sharma: Right. Now, Apurva can you tell us the most important or most pertinent questions that, you know, cases challenging sedition have raised over time. Apurva Vishwanath: So the big case that involves sedition is, of course, the law that has to till now is the 1962 ruling and the Kedar Nath Singh but of course, subsequently after Kedar Nath Singh also, there have been questions around sedition law, but the understanding has been so far that the law is valid and constitutional. But the court has said, for example, in an earlier case in 1995, said that the real intent of the speech must be taken into account before calling it seditious. In the case of Balwant Singh versus the state of Punjab the Supreme Court said that mere raising of slogans you know, even if they could be seen as inflammatory and against the government cannot be considered sedition. In this case, there were no Khaalistani slogans that two individuals had raised in a public space. And the court said this cannot account for sedition. And the other case we discussed was the Arun Jaitley case. Last year, you had the court quash proceedings against journalist Vinod Dua, you know, he made some criticism about the Prime Minister's handling of the COVID pandemic and cases of sedition were filed against him. But one other important aspect is where the court sort of expands on this expands on sedition is the cases of Dr. Binayak Sen. For example, in 2011, the court said that person can be convicted for sedition even if he's not the author of the seditious speech, which means he hasn't spoken or written those words, but has been involved in circulating it even that could qualify as sedition. So the court has sort of toyed with this law since Kedar Nath Singh before the 1962 Kedar Nath ruling came. Two high courts, the Punjab and Haryana High Court and the Allahabad High Court in the 1950s had struck down the provision as unconstitutional. So those were overturned in 1962, by the Kedar Nath ruling, so the provision has had like twisted legacy. The courts have also been in two minds about this. But now again, there is a serious reconsideration of the law nearly 60 years after the court upheld it earlier. Snigdha Sharma: And finally, over if you could tell us what are the possible outcomes, you know, in the future when a final decision is made on sedition? Apurva Vishwanath: So the final word on the sedition law now could be with the government first. So the government has told the court that it is going to review the law. And the court has also recorded that even the government agrees with the primer facie view that the provision is unconstitutional. So the route is either for the parliament to repeal it, and if not, the court will have to hear the case fully and a seven judge bench because the Kedarnath ruling is a five judge bench and to overrule that you will need a seven judge bench and a seven judge bench has to hear this in totality and decide whether they will have to strike down the law. Snigdha Sharma: Now coming to Jammu and Kashmir. On Thursday, the delimitation commission in its final order for the Union Territory of Jammu and Kashmir recommended seven additional constituencies, six for Jammu and one for Kashmir. Now the total number of seats in the Union Territory has gone up to 90 from the earlier 83. The panel's decisions are politically significant, and have met with criticism amongst mainstream parties in the valley. Political parties are saying that the Jammu region has got more seats relative to its population compared to the Kashmir valley and that this violates the population criteria. However, now with the final order notified all eyes will be on the election commission and the Union Government regarding the timing of assembly elections. So to find out more about this final order, we were joined by in an expresses Bashaarat Masood. Bashaarat. Can you begin by telling us why is this process of redrawing constituencies being carried out in Jammu and Kashmir? Bashaarat Masood: The delimitation exercise in Jammu and Kashmir was necessary after the Jammu and Kashmir reorganisation act 2019. While they were at 83 seats in the Union Territory of Jammu and Kashmir, the reorganisation act, increased these seats 90. So there was this need to increase some more seats for the delimitation that had to be started. But we also need to understand that there is a total freeze on any kind of delimitation exercise throughout India. We also need to understand that prior to August  2019, delimitation exercise was mandated due to different sets of rules for limitation is that in Jammu and Kashmir, the parliamentary constituencies who are delimited under the central acts while the assembly constituencies while to be delimited and the Jammu and Kashmir representative act of 93 but also the reorganisation act, both the delimitation of the assembly seats as well as the parliamentary seats came under the central act. So there was need to start this exercise for delimitation in Jammu and Kashmir. Snigdha Sharma: Right. So Bashaarat we know that the entire exercise has been surrounded by controversy, mainstream political parties in the valley. They are opposing it. Can you help us understand why? Bashaarat Masood: It is true that the whole exercise of delimitation is controversial right from the beginning. There are two things to it. One is that the centre has put a total freeze on delimitation exercise in India and also the erstwhile legislative assembly had also put a freeze on any delimitation in size till 2026. This freeze was put through to an amendment in Jammu and Kashmir when Farooq Abdullah was the Chif Minister of Jammu and Kashmir so as to be part of the delimitation process in India. So the question that is raised with the political parties is that when there was a total freeze throughout the country on delimitation excise why there was need to single out Jammu and Kashmir. That's one reason and the second reason is this was necessary. This whole exercise was necessary after the J and K reorganisation act 2019. And now that reorganisation Act and the abrogation of Jammu and Kashmir special status that has been challenged in the court is still pending with the Supreme Court is likely will come up in the coming days in Supreme Court. So the whole process sub judice tomorrow if the Supreme Court makes this reorganisation act or abrogation, null and void, so this whole process will be null and void. So these are some of the reasons that political party this has been controversial, this whole incessant condition right from the beginning, and political parties how explicit their reservation who were in this process. This change in seats like the increasing seats of Jammu by six and increasing Kashmir, but only one seat. It has brought the dream of Bharatiya Janta party, the Bharatiya Janta party had a dream that to install a Hindu chief minister in Jammu and Kashmir it has brought that dream closer to the reality now there are chances that now that Jammu seats have one equals so BJP somehow manages a majority like that it has been doing in past also in Jammu region, and with some little help from some airlines in Kashmir Valley, BJP can come to power and it can install a new chief minister that has been long term long cherished dream. So that is why the political parties in Kashmir are saying that the delimitation commission has essentially been an extension of BJP's political agenda. They say that despite being a statutory body, it has followed in the footsteps of BJP agenda, and has done this whole exercise based on BJP's political games. Snigdha Sharma: So Bashaarat seven assembly seats have been added right, six are in Jammu and one is in Kashmir, even though Kashmir has a bigger population. So tell us what does this change mean for these areas? Bashaarat Masood: In the erstwhile assembly of Jammu and Kashmir, Jammu region had 37 seats while the Kashmir region had 46 seats. Now, after this delimitation exercise, the award the delimitation award Jammu region will have 43 seats that is an increase of six seats. Well, Kashmir region would have only 47 seats that's because of just one seat. This despite the fact that Kashmir has more population than Jammu. Now, what does it mean on ground on ground it means that there will be a one seat reserved for everyone like 25,000 people in Jammu region while the same seat will be reserved for one lakh 46,000 People in Kashmir valley. Also the fact is that Jammu has a population of 44% of Jammu and Kashmir and it has got a share of 48 person while Kashmir having a population for this 56 person has got a seat share of only 52%. So that has been criticised and that has been questioned by political parties that sole criteria for this whole exercise itself, says the population of an area. But here the delimitation commission has gone beyond that. And it has set some more parameters like remoteness of area and its closeness to the border. This way Kashmir has been put at a disadvantage. Kashmir has got fewer seats than it should have normally got as per its population. Snigdha Sharma: And now coming to Aadhaar the Unique Identification Authority of India or UIDAI, has opposed a petition by the Delhi police that had sought directions from the High Court, which would essentially allow investigators to match a suspect picture and chance prints from the crime scene with the Aadhaar database to help identify the accused in a case of murder. However, the UIDAI which issues the unique Aadhaar number to residents of India is prohibited by law from sharing any core biometric information with the police. The statutory authority has also said it is not technologically feasible to accede to the request of the police. So to find out more about the UIDAI is response Sophi Ahsan joined the show. Sophi can you tell us why is a Delhi police asking for access to Aadhaar data. Sophi Ahsan: So this case actually dates back to June 2018, a jeweller Hemant Kumar was murdered by robbers in a shop in Adarsh Nagar area of Northwest Delhi when Kaushik was trying to grab one of the suspects he was shot and ultimately he was declared dead at the hospital. So police had recovered 14 Chance prints and footage from a nearby CCTV camera from the area showing one of the suspects. So this case has been going on since 2018. victim's father Vinod Kumar approached the High Court in 2021 saying that the investigation has not progressed since then, and no one has been arrested. Ultimately, Delhi High Court told the court that it had the chance prints it has these pictures, but it has not found any match in the database already available it so they floated a proposal that they could match it with Aadhaar database to find out the suspect. So, for that, they filed a petition before the Delhi High Court under Section 33 of this Adhaar act under which an all year high court judge can pass an order for sharing of information with anyone. So they sought matching of the chance points they had taken from the crime scene in this product case with the Aadhaar database. Snigdha Sharma: Right. So, tell us what kind of data is collected for Adhaar and what is the UIDAI’s responsibility in this regard. Sophi Ahsan: So Unique Identification Authority of India which collects the Aadhaar data and makes Aadhaar card for residents collects two kinds of information one is the demographic information and second is the biometric information. Demographic information includes name, address, date of birth, gender, these are mandatory kinds of information they collect and then there are optional kinds of informations like mobile phone number, email address, who are essential and important information they collected the biometric information which includes these 10 fingerprints a person has and two iris scans, that is the scans of the eye and the residents photograph. So when Aadhaar authority collects information they give a 12 digit unique number and or your Aadhaar card is brought out from the authorities. Snigdha Sharma: Right. So Sophi, what does the law say about the confidentiality of the biometric data that is collected for Aadhaar. Sophi Ahsan: So there is section 29 of the Aadhaar Act, which prohibits the Aadhaar authority from sharing core biometric information, which is the fingerprint, the iris scan or any other set of biological attributes with any agency for any reason whatsoever. So there is a total bar on sharing of information and it includes for investigating agencies also. And as per the Unique Identification Authority of India, no other can be shared by any individual identity without the consent of the resident or the holder of that other card. However, there is an exception section 33 provides a provision that any person can approach the High Court for disclosure of information, including the photograph or authentication records, but again, no biometric information can be disclosed. So the court can pass an order. But again, here, here's the catch, the court has to first give an opportunity of hearing to the authority as well as the person whose other number information is being sought. So there is also another exception, that's a National Security Act. Snigdha Sharma : Okay. And finally, if you could tell us what is the UIDAI is saying about the Delhi police's plea? Sophi Ahsan: The Unique Identification Authority of India has cited two reasons for denying the information. First, they cite the law which says that information can't be shared that too without giving an opportunity of hearing the person. So in this case, as we already know that the other person is unknown. So, the court obviously cannot give a right to hearing to that person who is unknown. Second reason the Aadhaar 40s cited is that they collect in the biometric information or demographic information in such a way that it may not be unfeasible to share for forensic purposes, like the biometric data cannot be used for random matching purposes. They say that the technology is only available if you give an other number only then you can bring out information. It's not like him you can put in a fingerprint and the information comes out. So, the technology is also such that the information cannot be shared for forensic purposes as per the Aadhaar authority. So, these are the two reasons that have been given by Aadhaar authorities. Snigdha Sharma: You were listening to three things by the Indian Express today's show was written and produced by me Snigdha Sharma and was edited and mixed by Suresh Pawar. You can follow us and leave us feedback on Facebook or Twitter @expresspodcasts or send us an email at podcasts@indianexpress.com. And if you liked the show, please do subscribe and leave us a review wherever you get your podcasts from, so more people can find us. You can also look for us in the audio section in the top right corner of our website, indianexpress.com
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