“I have every right to criticise the government. BJP-RSS do not constitute country. They do not constitute nation. They have taken a jibe against Modi, against his policies. How is this sedition?” Advocate Nihalsingh Rathod, appearing for Ramesh Gaichor and Sagar Gorkha — two of the accused in the Bhima Koregaon case — had told a special court in November 2021.
And perhaps, the apex court — and seemingly even the Centre — is in agreement with the lawyer. This may be a bold assumption, but then the Supreme Court themselves said, in their Wednesday’s order in the clutch of petitions challenging the constitutional validity of the sedition law:
“…it is clear that the Union of India agrees with the prima facie opinion expressed by this Court that the rigours of Section 124A of IPC (sedition) is not in tune with the current social milieu, and was intended for a time when this country was under the colonial regime.”
The CJI-led bench went on to say:
They “hope and expect” that the State and Central Governments will restrain from registering any FIR, continuing any investigation or taking any coercive measures by invoking Section 124A of IPC while the sedition law is under consideration.
AND, very importantly:
All those who were already booked under the sedition law (and incarcerated) can approach concerned courts for release on bail.
So does this mean that Gaichor and Gorkha and the other accused in the Bhima Koregaon case who have been charged under the sedition can finally get out of jail? And Umar Khalid, Sharjeel Imam and other accused in the Delhi Riots ‘Conspiracy’ case? What about Kerala journalist Siddique Kappan who has been languishing behind bars since his arrest by Uttar Pradesh Police in 2020?
Well, simply put: no, the apex court’s ‘sedition law’ order is unlikely to bring any respite for either the Bhima Koregaon or the Delhi Riots ‘Conspiracy’ case accused, or for Kappan and his co-accused.
This is because, in all of the above-mentioned cases, the accused were not booked under sedition alone, but under a combination of sedition plus the Unlawful Activities (Prevention) Act (UAPA).
Both are “extraordinary” laws that are used to curb free speech, make it very difficult for an accused to get bail, and may be prone to misuse.
But arguably, the UAPA is more stringent than sedition, because Section 43D(5) of this Act says that when it comes to those accused of terror offences under it, they cannot be released on bail if the court,
"is of the opinion that there are reasonable grounds for believing that the accusation against such person is prima facie true."
Thus, this provision of the UAPA, makes grant of bail virtually impossible in terror-related cases as it requires a Court to assess the guilt by merely looking at the police's version in the case diary or chargesheet and deny bail to the accused if there are reasonable grounds to believe that the case against the accused is prima facie true.
The accused in the both the Bhima Koregaon case, as well as the Delhi Riots ‘Conspiracy’ Case have been charged under terror-related sections of the UAPA, and because the bar is so high, it will be extremely difficult — if not virtually impossible — for them to still get bail.
Thus, even as a person who is incarcerated in connection with a sedition case can approach an appropriate court for bail, a person who is charged with sedition as well as the UAPA, will get no immediate relief.
Indeed, even if they are charged with any another serious offence under the IPC in addition to sedition, such as murder or kidnapping, lower courts are unlikely to grant them bail, and they will have to approach the higher judiciary.
If they do get bail with regard to the other offences, then their release could be possible.
'Laws Like the UAPA Can Still Be (Mis)Used...' Legal Experts Voice Concerns
Several legal experts have also expressed concern over the fact that despite the temporary suspension of proceedings under Section 124A, other stringent laws can still be exploited to stifle free speech and scare critics of the ruling parties and of the people in power into silence.
A judgment on the validity of sedition could lay down principles which can be used to prevent misuse of other such laws as well. While the Supreme Court has managed to circumvent attempts to delay the case, it may have missed a chance to set a strong precedent against misuse, and that too without any actual guarantee that the Centre will abolish sedition.
In an article for The Indian Express, Chitranshul Sinha, Advocate-on-Record at the Supreme Court of India, pointed out that there is “nothing preventing the government from simply switching to the UAPA instead of section 124A IPC.”
Under Section 13 of the UAPA, whoever takes part in or commits, or advocates, abets, advises or incites the commission of any 'unlawful activity' – which includes in its ambit inciting "disaffection" just like sedition – shall be punishable with imprisonment for a term which may extend to seven years, and shall also be liable to fine.
Governments and police forces across the country have also been happy to slap terror charges under the UAPA against people even where such charges aren't merited.
According to Sinha, until misapplications of laws like the UAPA or even the National Security Act (the preventive detention law under which Dr Kafeel Khan was detained) is prevented via safeguards, “the law of sedition will keep rearing its head under different names despite the orders passed by the Supreme Court.”
Having said that, it is undeniable that the Supreme Court has paved the way for more liberal and rights-oriented legislations with Wednesday’s order, and there is hope that the Union of India (even if on the apex court’s nudging) will accord a fair reconsideration to the sedition law.
A number of criminal law practitioners have confirmed to The Quint that they are already filing applications for bail for clients based on the interim order.
Yet, the light at the end of the seemingly long, serpentine, endless tunnel for Umar Khalid, Khalid Saifi, Siddique Kappan, Hany Babu, Gautam Navlakha, Ramesh Gaichor and Sagar Gorkhe, among countless others, continues to flicker rather feebly.