The Paradox of the Rule of Law

In India, writers and activists are subject to blatant misappropriations of law, while those with political connections get leniency.

Indian actor Sanjay Dutt has been sentenced to finish his remaining three and a half year jail term for his alleged involvement with the 1993 Bombay terror attack. Photo: IndiaTV Youtube.

The Indian Penal Code is a legacy of the British colonial rule in India. It was drafted after the Mutiny of 1857, or what is popularly known as India’s first war of independence. The code contains a section on Sedition, that says:

“124A. 1 Sedition.– Whoever by words, either spoken or written, or by signs, or by visible representation, or otherwise, brings or attempts to bring into hatred or contempt, or excites or attempts to excite disaffection towards, 2[the Government established by law in 3[India], a 4[shall be punished with 5[imprisonment for life], to which fine may be added, or with imprisonment which may extend to three years, to which fine may be added, or with fine.”

If we put together the historical context and the wordings of this section, it’s easy to understand why such a clause existed in the Code when it was drafted. Mahatama Gandhi was sent to prison on charges of sedition during the British regime and so were prominent freedom fighters like Bal Gangadhar Tilak.

But Jawaharlal Nehru, the first Prime Minister of Independent India, expressed his displeasure with this section as early on as 1951, four years after India gained independence: “Now so far as I am concerned, that particular section is highly objectionable and obnoxious and it should have no place both for practical and historical reasons, if you like, in any body of laws that we might pass. The sooner we get rid of it the better.”

Despite Nehru’s ire over the section on sedition, it continues to exist and has been used selectively against writers and intellectuals who oppose some of the central and state governments’ policies.

Social activist Dr. Binayak Sen is a prominent personality to be charged with Sedition by the State Government of Chhattisgarh. A pediatrician by profession, Sen is also the national vice-president of the People’s Union for Civil Liberties. He was first detained in May 2007 for allegedly supporting outlawed Naxalites. In 2010, the Additional Sessions and District Court Judge found him guilty of sedition, along with two others.

In his long and illustrious career, Sen has received many awards for his humanitarian work, including the Jonathan Mann Award, the Gwangu Prize for Human Rights, and the Gandhi International Peace Award. When he was incarcerated, 40 Nobel Prize winners from across the world appealed for his release. After a few months, he was granted bail by the Supreme Court of India, which said that no evidence of sedition was produced against the accused by the Government of Chhattisgarh. There are allegations Sen was tortured and kept in solitary confinement during his imprisonment.

Recently Arundhati Roy, the Booker Prize-winning author, was also sought to be charged with sedition by the Delhi Police for her views on Kashmir. Roy has been vocal about allowing the people of Kashmir their right to self-determination. The Delhi Police filed the First Information Report after a local court ordered it, based on a petition complaining that Roy made an anti-India speech at a conference on granting independence to Kashmir. Not easily intimidated, Roy pointed out that such a charge should maybe also be filed posthumously against Nehru for having publicly stated 14 times that the question of accession of any disputed territory or state has to be decided in accordance with the wishes of its people.

At best, the evidence against Sen or Roy is that they sympathize with the causes of individuals or groups who aim to achieve their goals through violent means. But even their worst critics are not likely to accuse them of actually facilitating an act of terror or violence against the State.

However there is another side to this sedition story.

Sanjay Dutt, son of a famous Bollywood actor and politician belonging to Congress Party, and a famous actor himself, was arrested for his role in the 1993 Bombay terror attack that killed over 250 Indian citizens and maimed and injured over 700. Already in possession of three licensed weapons at the time, Dutt had allowed his garage to be used to store the weapons that were smuggled into the country for the attacks. He claimed he needed an additional AK-47 because of the threatening calls he and his family were receiving, and Anees Salim, the brother of the Underworld Don Dawood Ibrahim, helped him procure one. The gun was delivered to Dutt in the same shipment that held the RDX and other weapons used to trigger the blasts.

The police versions of the incident have repeatedly held Dutt to be more complicit in the crime than his confession has made it out to be. But the social and political clout Dutt and his family enjoy seems to have ensured that he got away with a milder sentence as compared to the other accused. He was also released on bail after serving one and a half years of his five year sentence after special provisions were built into the existing laws.

However, after twenty years, a recent Supreme Court judgment has ordered Dutt to go back and serve the remaining three and a half years of his sentence. Since then, there has almost been a media frenzy with prominent Indian public figures clamoring for Dutt’s pardon. Justice Katju, the Chairman of the Press Council of India has requested the Governor of Maharashtra to pardon Dutt because of all the social work his parents did during their time. Digvijay Singh, a prominent Member of Parliament of the Congress Party also joined the brigade for pardoning Dutt. His submission is that Dutt was a “child” during the time he committed the crime; Dutt was in his early 30s when he was hobnobbing with the underworld and letting them use his garage as a safe transit point for the arms that were smuggled in for the terror attacks. In the week after the judgment many of Dutt’s Bollywood colleagues have come out in his support and believe he has suffered enough and should be pardoned now for his ‘small’ mistake.

All’s well in the Indian democracy with a constitution that guarantees its citizens the right to freedom…