Legal Notes by Arvind Datar: Not the law, but the abuse of the law

The Supreme Court’s order restraining cases under Section 124A of the Indian Penal Code (IPC) is indeed welcome, as is the statement that the government desires to reconsider this provision.

Section 124A was introduced by an amendment in 1898 and was particularly designed to check the freedom movement. It was used against several freedom fighters; in particular, the deportation of Bal Gangadhar Tilak to Mandalay was under this Section, and so was the incarceration of Veer Savarkar in the Andamans.

This is the strong argument to contend that Section 124A is anachronistic in a republican Constitution. The use of the words “disaffection” and the inclusive definition has resulted in the Section being widely misused. Indeed, the fault is not so much with the Section itself, but with the manner in which it has been consistently misused to silence critics or simply imprison people even in cases where the facts do not even satisfy the requirement of what Sedition means.

In recent times, the provision has been invoked even against journalists who were on their way to report an alleged rape that occurred in Hathras, persons who were allegedly distributing paper bills as a part of the Sterlite protest, teachers and parents of children who had enacted a play which had allegedly criticised the Prime Minister. These are just a few examples which are symptomatic of the larger problem of repression that is enabled through the misuse of this provision. The abuse is compounded by the impossibility of getting bail in the lower courts and sometimes in the High Courts as well. The recent Supreme Court observations against the grant of bail have also made it increasingly difficult to get bail. The sad reality is that jail has now become the rule and bail has become the exception.

Apart from Sedition, there is rampant misuse of the Prevention of Money Laundering Act, 2002 (PMLA). The wide definition of “proceeds of crime” in Section 2(u) and the offences mentioned in the Schedule make it very easy to not only arrest a person, but also provisionally attach all his assets. Section 45 imposes twin bail conditions that, in effect, nullify the presumption of innocence. It is indeed strange that the mere filing of an First Information Report (FIR) for the offence of Cheating under Section 420 empowers the Enforcement Directorate (ED) to arrest and provisionally attach all the assets of an individual and even a company. Effectively, a person can be jailed and his assets could be attached even though there is neither crime nor any proceeds of crime. The Act does provide an opportunity of showing cause why there is no case for attachment or arrest, but orders of attachment are invariably confirmed. Statistics also show that getting bail in an ED case is almost impossible at the trial stage.

Similar misuse can be seen under the Unlawful Activities (Prevention) Act, 1967, where people have languished in jail for years without any trial, irrespective of their age and health condition. The conditions for granting bail are indeed impossible to meet. Apart from criminal law, several provisions in tax laws are also rampantly abused with no accountability at all.

It is time that the Central government has a relook at not only the Sedition law, but also at other statutory provisions that deny bail or impose almost insurmountable conditions for the grant of bail. It is also incorrect to simply castigate a law as being colonial. Equally unjustified are post-colonial laws that have even more draconian provisions that should not find a place in a country which claims to be governed by the rule of law.

One must not forget that several “colonial laws” such as the Evidence Act and the Contract Law, have stood the test of time and have required very few amendments. The fault is not with pre-colonial or post-colonial laws, but with the unchecked abuse of statutory provisions. There is no accountability of the executive for misuse or abuse and very few affected persons have the ability to claim damages for malicious prosecution. The reluctance of the judiciary to grant bail or check the misuse of these provisions is equally disturbing and requires a relook as well.

Arvind P Datar is a Senior Advocate practicing at the Supreme Court of India and Madras High Court.