Lucknow: Quashing sedition and six other charges against Umesh Kumar Sharma, the editor of a local news channel, the Uttarakhand High Court on 27 October 2020 restated a key tenet of democracy: It is okay to criticise the government.
“Criticizing the government can never be sedition,” the court said. “Unless the (sic) public functionaries are criticised, democracy cannot be strengthened. In democracy dissent is always respected and considered, if it is suppressed under sedition laws perhaps, it would be an attempt to make the democracy weak.”
Sharma, 47, who spent a month in a jail in Dehradun, the capital of Uttarakhand, and was forced to close his Uttarakhand-based web channel after his arrest on 31 July 2020, told Article 14 that India’s 150-year-old colonial-era sedition law had become “an easy tool for witch-hunting of journalists”.
After Sharma’s Samachar Plus ran an investigative story in 24 June 2020, uncovering alleged corruption of Chief Minister Trivendra Singh Rawat—when he was the Bharatiya Janata Party (BJP) in-charge of Jharkhand in 2016—a first information report (FIR) was registered against Sharma on 31 July 2020 under sections 420 (cheating), 467 (forgery of security), 468 (forgery for cheating), 469 (forgery for damaging reputation), 471 (use of forged records), 120B (criminal conspiracy) of Indian Penal Code, 1860.
The Uttarakhand Police later added section 124 A (sedition) to the FIR, which the Uttarakhand High Court strongly criticised while granting bail to Sharma on 3 September 2020.
“What is more troubling is how section 124-A IPC was added?” asked the court. “Even if for the sake of arguments, it is admitted that some allegations were levelled against some high functionary, does it per se amount to sedition, which is punishable under Section 124-A IPC? Why was the State in such a haste? Is it a cruel hand of the State, which is running over?”
“You (the police) accused a respected person in a case of blackmail,” said Sharma. “And you couldn’t even prove these allegations.”
Muzzling Dissent ‘Can Never Be Allowed’: Court
There were two more FIRs against Sharma—he also once faced a rape charge from a woman who said he promised to marry her— both related to the sting operation run by Samachar Plus.
According to the video, after the government announced demonetisation in the year 2016, Rawat accepted a bribe from a man who sought an appointment as the head the government’s Gau Seva Aayog (Cow Service Undertaking) in Jharkhand, a state then run by the Bharatiya Janata Party (BJP). Rawat had the money transferred to the accounts of his relatives, the video alleged.
Amratesh Singh Chauhan, man who allegedly bribed Rawat by depositing Rs 25 lakh in various bank accounts of the chief minister’s relatives, filed an FIR against Sharma on 4 November 2018 at a police station in Ranchi under Section 124 A (sedition), 387 (putting person in fear of death), 389 (extortion), 506 (criminal intimidation) of the IPC.
Chauhan accused Sharma of intimidation to “gather information” about the state with “an intent to hatch a conspiracy” against the Uttarakhand government.
In the FIR, Chauhan alleged that Sharma asked him for help “in a conspiracy to demolish the government” and was gathering “secret information” on some politicians to cause “political instability” and bring down the government.
“On my refusal he is threatened me (sic) that he will implicate me in false cases of Enforcement Directorate (ED),” said Chauhan in the FIR. “Apart from this, Umesh Sharma used filthy abusive language with me and said that he will get me kidnapped and killed.”
While hearing a plea from Sharma to have the cases against him quashed, the Uttarakhand High Court said: “No prima facie case is made out. The petitioner discharged his duties as a journalist and whatever he published, had already been made public by Amratesh Singh Chauhan. It is a malicious prosecution.”
The court said adding 124A in this case “manifests that it has been an attempt of the State, to muzzle the voice of criticism, to muffle complaint/ dissent. It can never be allowed”.
‘Freedom Of Speech Under Threat’
“In this country, everybody has the right to speech,” Sharma, now free, told Article 14. “If you do not agree with my words or they are hurting your sentiments, then you can file a defamation suit, how can you impose sedition?”
When asked who he thought was behind the slew of cases filed against him, Sharma said: “No such incident can happen without the government's nod...as we did the sting against the incumbent government, then it is obvious that this witch hunt is state sponsored.”
Article 14 made three calls to BJP chief spokesperson for Uttarakhand, Munna Singh Chauhan, seeking comment on Sharma’s allegations, but he did not receive the calls. We sent a message as well, but it was not answered.
Uttarakhand’s record on freedom of the press is not impressive, regardless of which party has been in power.
In 2018, the state government restricted the entry of journalists to its cabinet meetings, citing leaks of “confidential information”. The Press Council of India (PCI) objected, and its chairman, Chandramauli Kumar Prasad, said in a 5 January 2018 statement that “prima facie, the action of the Uttarakhand government impinged on the freedom of the press, and PCI has sought a report from the Uttarakhand government over its order”.
In June 2020, a journalist writing for the Navbharat Times and other news organisations was attacked by goons in Uttarakhand after being often threatened. The journalist, Rajiv Nayan Bahuguna, had criticised the Rashtriya Swayamsevak Sangh and the BJP, which was in power at the Centre and state.
The Weaponisation Of Sedition Law
India has seen a spike in sedition cases over the period of the BJP government. According to the National Crime Records Bureau (NCRB), 93 cases of sedition were filed in 2019, a 165% jump from 35 cases in 2016.
More than 80 cases of sedition were reported nationwide until June 2020, more than any six-month period since the NCRB began counting such cases in 2014.
An offence of sedition, which is no longer on the statues of most democracies, is said to be committed if any speech, performance or publication has an effect of creating disloyalty or hatred against the Indian government.
This was, however, watered down in 1962 by the Supreme Court in the Kedar Nath case, when it held that though the provision was constitutional, it cannot be invoked unless the alleged seditious act incited or had the tendency to incite violence or public disorder.
Largely used against freedom fighters, the colonial provision remained on the books, even though members of the Constituent Assembly expressed their disapproval against the provision. Not only did it continue to remain in the IPC, it was made more draconian by the government by the enactment of the Unlawful Activities (Prevention) Act, (UAPA), 1967, which provides for prevention and punishment of seditious activities.
Sedition law was further weaponised in 2008 by enactment of the National Investigation Agency Act (NIA Act), which made investigation of offences under the UAPA subject to jurisdiction of the NIA, a central agency.
“Effectively, seditious activity has been raised to the level of a federal crime,” Chitranshul Sharma, author of a 2019 book, The Great Repression: The Story of Sedition in India, wrote in February 2020 in Article 14.
“This is the easiest way to arrest someone,” said Sharma. “The government claims that I want to topple the current state government; neither the government nor me can prove that this claim is wrong.
“The police is a mitthu tota (parrot) of the government,” said Sharma. “It is very easy to write anything about anyone. But what about the life of the person they are accusing?”
21 Days In Jail And Life After
Sharma said he was imprisoned for three weeks in Dehradun Jail and 10 days in Ranchi.
“We all know how life is in prison,” he said.
“In the chargesheet, police mentioned that there is no evidence of blackmail, but you (the government) persecuted me for a month, all of this ruined my personal and professional life,” said Sharma. “Government ran a media trial on me... in the end you have to fight alone with swayam, samaj and sarkar (self, society and government).”
Under government pressure, Sharma had to stop broadcasts for a week. This did not happen only during the BJP’s rule.
There was an attack on Samachar Plus office after the Harish Rawat story, there were also threat calls made to the office, said Sharma.
“This is not the first time,” said Sharma. “In 2016, my office was attacked by a mob, and they threw a molotov (cocktail) at my office after a sting on the then Chief Minister Harish Rawat (of the Congress party).”
After an attack, Sharma had to cease operations for a week, in the days after his channel conducted a sting operation on Rawat, where he was allegedly offering bribes to members of legislative assembly to switch parties.
Sharma’s sting was one of the reasons cited by Centre for imposing President’s rule on the state just before the 2017 assembly elections.
The Central Bureau of Investigation (CBI) filed an FIR against Rawat in the horse-trading case under section 120-B (criminal conspiracy) of the IPC and sections 7, 8, 9 and 12 of the Prevention of Corruption Act, 1988. Sharma was also named in the same FIR.
Sharma said the police took “very hasty action” against him.
“The High court decision is a slap on (sic) the police, and I think that police have now learned that government sycophancy is not right,” said Sharma. “The police should act as per the law and not (at the bidding of) those who hold power.”
(Shailesh Shrivastava is a Bangalore-based journalist and Managing Editor of 101Reporters.com. Amit Kumar is a Dehradun-based journalist and a member of 101Reporters.)