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Sedition and the Problem of Discretionary Exercise of Police Power: Mathew John

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?

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