This is a Guest Post by Mathew John
The interpretation of law does not only take place in courts. In our season of ‘seditious’ speech this would seem an obvious point as the police administration is as much engaged in the process of legal interpretation or, as legal speak would have it, exercising discretionary powers. However, while courts have to at least minimally ensure that their decisions are backed by reason and aligned with previous decisions, the cases filed against Kanaihya Kumar and others seems to suggest that the police administration can operate almost as a universe unto itself in its interpretation of Indian criminal law. Of course police action will have to tested and defended in court but what if the police bring flimsy cases to trial to inflict long drawn out legal process as punishment for dissenting speech?
There has been an avalanche of excellent recent writing in recent days on the criminal offence of sedition. These have emphasised two broad points. On the one hand they have traced the offence of sedition to the authoritarian designs of the British colonial state seeking to control restive Indian opinion. On the other, opinion has also noted that Indian Courts while upholding the constitutionality of the offence of sedition have held that the speech can be penalised on this ground only when accompanied by an imminent threat of disorder, disturbance or violence. However, the JNU fracas as other similar cases in recent memory involving Arundhati Roy, Binayak Sen and Aseem Trivedi among others, demonstrate that this judicial standard reading down the offence of sedition to a very narrow set of speech acts has not constrained subsequent police action. On the contrary police administrations in the current JNU case have pursued citizens for seditious speech even when their speech could not in any objective manner be tied to imminent threats of disorder. That is, the criminal provisions on sedition section are used against the spirit of the law as laid down by the Supreme Court and is mobilised to with little cause but the harassment of dissenting opinion. In such situations what can defenders of free speech do to ensure that legal process is not abused to harass dissent?
The American Legal scholar Kenneth Culp Davis narrowed on this problem by tying it to the wide discretionary power available with ‘street bureaucracies’ in the modern administrative state. His solution was to subject ‘unpleasant areas of discretionary determinations’ to the discipline of rules. Rules as we know could be enacted by legislatures or issued by administrators under the authority of legislatures. Davis was particularly concerned with the latter form of rules especially as he viewed them as constraints that fostered accountability in the exercise of administrative power. In the present set of sedition cases neither legislative nor administrative rulemaking to structure the exercise of police power to penalise sedition is likely.
Intervention to reorganise the legislative design of the offence as it currently stands to make the exercise of police powers more accountable is most unlikely as it is not on the agenda of any likely legislative coalitions in the current parliament. Further it is also unlikely that the police administration of their own accord will issue rules to let go of a potent weapon to control dissenting speech. But if we are to heed Davis’ exhortation it is precisely at this level of administrative discretion that a greater degree of accountability must be sought. Consequently in the current circumstances this is possible only by demanding that judicial decisions on sedition operate as a fetter on the discretion of police in sedition proceedings. That is, judicial decisions reading down the offence of sedition solely to speech acts likely to produce imminent violence must be factored into the reasoning and executive judgments that informs the exercise of police discretion to initiate sedition proceedings.
There are at least two ways in which judicial decisions can be made to count in administrative decisions. First, courts could insist that ministerial or departmental authorities issue circulars or guidelines to police officials updating them about Supreme Court decisions and the manner in which such decisions must constrain the kind of actions against which proceedings for sedition can be initiated. Second, courts could themselves issue guidelines as they have in a few decisions on how police power must be exercised such that it does violate the offence as it has been interpreted by the higher courts. In this regard the Bombay High Court has already issued guidelines that an opinion of a law officer be sought before a prosecution for sedition can take place. However, the present circumstance offers the Supreme Court a novel opportunity to defend the authority of its previous decisions and lay out a far more detailed set of directions on the precise implications of its decisions for the exercise of police power.
Of course all restraints on administrative powers depend on good faith with which administrators exercise their authority. Thus rules and guidelines designed can also be frustrated by the venality of the police authorities. Even so, in the current circumstances arguing for constraints on police action in sedition cases will play a significant even if limited role to discipline and hold to account the exercise of discretionary police power which takes place in blithe ignorance or disregard of existing judicial decisions.