India since its independence and before independence has been a country that has been run by people who had a vision to make the nation a better place for everyone. The Indian National Congress (INC) was the first national political party which traces its history since pre – independence (1885), and stands on the perils of liberalism, civil nationalism, socialism, secularism and social democracy. Indira Gandhi, the 3rd Prime Minister of India, her reign was a wall decorated with changes and controversies. The previously replaced penal code of our country, the Indian Penal Code (IPC), 1860 had the section 124A dealing with sedition, and there were several controversies circling that matter.
Sedition has been a part of our history since colonial era, the IPC was passed in 1860 while the country was ruled by Great Britain. Activists for national independence like Mahatma Gandhi and Lokmanya Tilak were subjected to persecution under this clause during the British colony, resulting in their conviction and imprisonment. Since it restricted the freedom of speech, the section also attracted criticism in independent India.
In 1948, following deliberations by the Constituent Assembly, the word “sedition” was removed from the Constitution. As a justification for restricting the constitutional right to free speech and expression, KM Munshi proposed an amendment to eliminate the word “sedition” from the draft Constitution. Consequently, when the Constitution was ratified on November 26, 1949, the term “sedition” was removed, and Article 19(1)(a) guaranteed complete freedom of speech and expression. Part 124A of the IPC, however, remained in place.
Jawaharlal Nehru proposed the first amendment to the Constitution in 1951 and passed Article 19(2), which gives the State the power to put “reasonable restrictions” on the right to free speech.
For the first time in Indian history, Section 124A was declared a criminal offense by the Indira Gandhi administration. The colonial-era 1898 Code of Criminal Procedure was repealed in 1974 and replaced with the new Code of Criminal Procedure, 1973, which made sedition a crime and gave police the power to make arrests without a warrant.[1] This changed the trajectory of the law in India making it a cognisable and non – bailable offence and violating the right of freedom of speech and expression (Art 19(1)) as per the Constitution of India. Th debate regarding sedition law always has the judiciary system in knots, one of the highly talked about case being that of Kanhaiya Kumar v. The State of Delhi which gave the decision, Part IV, Article 51A of the Constitution provides the Fundamental Duties of every citizen, which are the opposite side of the same coin, and the Delhi High Court held that one must keep this in mind while enjoying the right to free speech and expression under Article 19 (1) (a) of the Constitution. In determining what constituted seditious acts, the aforementioned court rulings have been examined. Under these circumstances, it was argued that the act does not come under the jurisdiction of section 124A of the IPC unless the words or deeds in issue do not threaten the security of the State or the public, or produce any severe disorder in the public.[2]
In May of 2022, The Supreme Court of India had decided to put S.124A of the IPC to be put on temporary hold, noting that governments have abused it to stifle dissent and urging a review of the law’s constitutionality. Before further debate and discussion could carve a path, the present ruling party of India i.e. The Bharatiya Janata Party (BJP) had in 2023 proposed 3 new criminal law bills namely, Bharatiya Nyaya Sanhita, 2023 (BNS), which replaces the Indian Penal Code [IPC], 1860), the Bharatiya Sakshya Adhiniyam, 2023 (replaces the Indian Evidence Act, 1872) and the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS, which replaces the Code of Criminal Procedure [CrPC], 1973). The bills had been passed in the parliament with the assent of President Droupadi Murmu’s assent on December 25, 2023. On 1st of July, 2024 the acts came into force, turning a page in India’s legislation. The lawyers, judges, police officials, civil servants , government officials have their set of differences on the enforcement of new laws, one of them being that that the BNS has replaced the essence of sedition law in India, which addresses “acts endangering sovereignty, unity, and integrity of India.” This shift indicates a move away from the traditional definition of sedition towards a broader interpretation that includes various forms of dissent that could threaten national integrity. It applies not only to spoken or written words but also includes electronic communications and financial means, thereby upgrading the law to encompass contemporary methods of communication and expression. It has been argued by many that it is equating sedition as treason to the country, making a larger offence of nationalism vendetta in retrospect further denting the fundamental right of freedom of speech and expression in the country, through both verbal, written and online means.[3]
However, the ruling parties and majority government have always played a pivotal role in the power distribution of our country – Legislature, Executive and Judiciary, the above circumstances being a glorifying example of the government’s need to make new laws when they could be easily amended, they replaced an essential part of the country’s legal system in a bid to make their tenure’s imprint permanent.
PARTIES AND THEIR INVOLVEMENT IN THE CRIMINAL SYSTEM
There have been several cases that have both made the foundation and broken the shackles of our country’s judicial system, criminal justice is our country is embodied by the principles of rule of law, independence of judiciary, democracy, sovereignty of our nation bring the essence while the pillars which hold these together are in a nutshell investigation by Police, Prosecution of case by the Prosecutors, determination of guilt by the Courts and finally the correction through prisons system. The State List of institutions in India includes the police, public order, courts, jails, reformatories, borstals, and other related establishments as per Article 246 of the Constitution.
HATHRAS CASE
The Hathras case, which concerns the purported gang rape and killing of a Dalit woman in Uttar Pradesh in 2020, has been tainted by claims of political meddling and improper management by the state government and administration. The heinousness of the crime never decreases but the lack of stronger laws make it a day to day occurrence.
The year of 2012 had been a nightmare for every woman in India, Nirbhaya was a source of both the demons lurking the shadows and also the beacon of hope with the 2013 amendment of the IPC, paving the way for the laws to become more stricter regime.
There is a famous proverb that states that “you can lead a horse to water but you can’t make him drink”, a similar situation occurred in the handling of this case. The laws might be of steel, but the pillars of our justice system are made of breakable cement.
Endeavours to Influence the Investigation
The government of Uttar Pradesh established a Special Investigation Team (SIT), yet, the SIT was charged with coercing the victim’s family to alter their statement and with refusing to assist the Central Bureau of Investigation (CBI) in carrying out the Supreme Court’s investigation. Assuring the victim’s family that the administration would support them and that the media would soon depart, the Hathras District Magistrate was shown on camera urging them to alter their testimony. In the wake, the UP police filed nineteen FIRs, alleging defamation, promoting caste-based divisions, religion discrimination, and doctoring electronic evidence.[4]
Contentions of Victim-Blaming and Conspiracy Theories
In an attempt to discredit the victim’s family and cast doubt on the veracity of the rape accusations, a number of mainstream media outlets ran unverified reports and conspiracy theories, including the Popular Front of India’s (PFI) supposed involvement.
Rallying in favour of the accused were a number of well-known BJP politicians and an ex-MLA, and right-wing groups were there.
In violation of Supreme Court orders, BJP IT Cell chief Amit Malviya had tweeted a video that identified the victim. An “international plot” and a “deep-rooted conspiracy” to instigate caste-based rioting and discredit the Yogi Adityanath government were the claims made by the UP government.
There were questions regarding possible cover-up as the cops burned the victim’s remains in the middle of the night without getting the family’s permission.
The family was present, the UP government said, thus the cremation was necessary for maintaining law and order. Nonetheless, the family said they were coerced into cremating the remains.
Judicial Intervention along with CBI Probe
The victim’s family and witnesses received CRPF security, and the Allahabad High Court was instructed by the Supreme Court to oversee the CBI investigation.
There were criticisms for the hurried cremation and growing demonstrations calling for justice.
The Hathras case emphasizes the need for an unbiased inquiry and the defence of the victim’s family against coercion and interference from the political establishment.
The media’s and politicians’ accusations of victim-blaming and conspiracy theories raise grave doubts about how these cases will be prosecuted in court.
BILKIS BANO AND THE CONTINUATION OF HER NIGHTMARE
Justice delayed is justice denied, in this case[5] justice was delivered after a lot of ordeal, but the second wave of nightmare started on August 2022, were they were released by the Gujarat Government under the leadership of the ruling party of our country, leading to public outrage and the Supreme Court performed their own check and balance system and on January 2024, the release order was extinguished.
The Gujarat government was chastised by the Supreme Court for cooperating with the prisoner who had petitioned the highest court to request that his bid for early release be given consideration.
The trial was moved outside of the state to Maharashtra, the court decided, and the Gujarat government was not the ‘competent government’ to decide the remission pleas.
The Gujarat government was judged by the court to have usurped authority and misused its discretion in ordering the inmates’ early release.
Suspected Political Influence
The early release of the 11 prisoners was allowed by the Gujarat administration, which is governed by the Bharatiya Janata Party (BJP) of Prime Minister Narendra Modi.
The release of the prisoners to a hero’s welcome sparked indignation around the world.
The release was viewed as going against directives from the federal government and the state government of Gujarat, which specify that rape and murder convictions do not qualify for remission.
The survivor was back to the age of 21, when the crime had happened, death of her daughter, slaughter of her family all in the name of religious prejudice. Karl Marx wrote that religion is “the opiate of the masses” The attack on Bilkis Bano and her family was one of the most horrific crimes during the 2002 Gujarat riots, and the government in the present day trying to release these convicts has been perceived by the masses as a flag of pardoning Hindu prisoners, tainting the Preamble’s ideology of secularism and bringing a judicial bias.
A number of police officers and state representatives were reported to have tried to frighten Bilkis Bano, destroyed evidence, and told her first examiners that she hadn’t been raped. Her battle for justice was thus protracted and terrifying.
Political meddling in this case is quite concerning, as seen by the Supreme Court’s sharp criticism of the Gujarat government’s actions and the international outcry following the release of the inmates.[6]
A legal system which is fair is an essential requirement of a democratic society, so that a survivor does not have to live in the shadows of her past for the remainder of her life.
RG KAR : GOVERNMENT SANCTIONED CRIME
The present RG Kar case in West Bengal is a glaring reminder that being a person with principles is a good enough reason to be silenced .The cupboard is full of skeletons , the offences have started from 2001 with suspicious deaths piling for 2 decades , now the dam has broken , the principle has been charged for not following the proper criminal procedure of lodging the FIR on time , he was first convicted of financial fraud , hiding under the pretext of a white collar crime till veil was lifted and he was charged with murder and rape of the doctor. The Calcutta Police , the CBI, the state government all have been in cahoots to bury the matter.
The justice system has been compromised, the procedures lack clarity from the DNA report to the autopsy every document of originality has been tampered with, bending the entire ground of a criminal trial where evidence speaks even the falsely planted ones. The Aparajita Woman and Child Bill, 2024, also known as the Anti-Rape Bill passed by the West Bengal Assembly which aimed to strengthen current laws on rape and sexual offenses by introducing stricter rules, was a way of the state government to amend their ways and paving the way to justice. We are a quasi-federal country, other states have already tried to implement their own state laws but it never took flight. The entire legislative assembly session was a well calculated decision to pin it on a scapegoat, at present though arrests have started its just the picture in a closer mode, the larger picture is still hidden behind the curtain of corrupted bureaucracy.
IS THE INDEPENDENCE OF JUDICIARY A MYTH ?
One concept of the Indian Constitution that has been incorporated is the independence of the judiciary. However, our nation’s political and judicial histories tell us of an ongoing conflict between the executive and the judiciary as political biases and influences attempt to taint the administration of justice.
In the context of India, the theory of separation of powers basically meant the tripartite division of government functions. The division of functions between the legislative, executive, and judicial branches was highlighted by philosophers such as Aristotle, Montesquieu, and John Locke. These political philosophers based their separation on the fundamental tenet that no one’s rights and liberties should be violated by an oppressive government that entrenched power and exercised it at its discretion.
Politics and Justice system are two parallel line which are in theory never supposed to meet , but recent cases and the increase of corruption and political parties playing in the bigger leagues, have made the two tangential in reality .
The Bilkis Bano case shows that even after justice is delivered, a new day with a new government shapes the fate of the citizens .The nightmares were becoming a reality for her when the 11 convicts were released as a part of the Azadi ka Amrit Mahotsav, the ruling party in their fever dream of giving a second chance to the prisoners as a part of the rehabilitation programme forgot that rehabilitation is for criminals who are human , not for inhuman acts of rape in the name of prejudice and using it as a weapon .
The judiciary is an essential check on authoritarian inclinations in democratic regimes that are working successfully. However, by refusing to name judges, swaying the verdicts of landmark cases, utilizing the executive branch’s judicial power to intimidate political rivals, and taking advantage of judges’ self-interest and identity politics, the present administration has skilfully dismantled the foundation of the judiciary.[7]
The Supreme Court in both the Bilkis Bano and RG Kar case has tried the deliver justice till a certain extent , however the veil of fairness and politically accepted justice is thin in texture, but public outrage and protests have made them rethink their steps and retract the misguided sense direction they had taken, the law is honoured in many cases, sometimes the strings are entangled with the strings of the political powers resulting in miscarriage of justice.
[1] Utkarsh Anand, , The sedition story: Complicated history of Sec 124A, Hindustan Times (July 19, 2021, 6:58 AM IST), https://www.hindustantimes.com/india-news/the-sedition-story-complicated-history-of-sec-124a-101626370928612.html
[2] Akash Yadav, Sedition and Indian Penal Code: Section 124A of the IPC, Live Law (May 24, 2022, 9: 44 AM), https://www.livelaw.in/lawschoolcolumn/sedition-indian-penal-code-124-a-of-the-ipc-199905.
[3] Bharatiya Nyaya Sanhita, 2023,No 45, Acts of Parliament, Section 150, Section 152 (India)
[4] Nimisha Dublish, All About the Hathras Case, iPleaders (Nov 25, 2023), https://blog.ipleaders.in/all-about-the-hathras-case/.
[5] Bilkis Yakub Rasool v. Union of India & Ors.,(2024) 2024 INSC 24 (India)
[6] Awstika Das, Bilkis Bano Case | Gujarat Govt ‘Acted In Tandem’ With Convict, Breached Rule Of Law, Usurped Power: Supreme Court, Live Law (Jan. 8, 2024, 01:08 PM), https://www.livelaw.in/top-stories/supreme-court-bilkis-bano-state-of-gujarat-remission-convict-246114.
[7] Tarun Krishnakumar, India’s Justice System Is No Longer Independent: Part I, Lawfare (Sept. 21, 2023, 10:00 AM), https://www.lawfaremedia.org/article/india-s-justice-system-is-no-longer-independent-part-i.
Author: Aparajita Bhowmick
Juris Centre 