Lawmaker, law-keeper, and lawbreaker are all sailing together: Adv S Balan speaks on ‘Other Perspectives of Sedition under IPC and UAPA’

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Lawyers Institute for Empowerment recently held an interactive online class with Advocate S Balan on ‘Other Perspectives of Sedition under IPC and UAPA’. During the session, Criminal Advocate S Balan spoke at length on the various facets of the law revolving around the concept of sedition.

Adv. S Balan commenced the lecture by stating that ‘sedition’ under Section 124 A of the Indian Penal Code, 1860 (IPC) and all the penal provisions under the Unlawful Activities Prevention Act, 1967 (UAPA) are “usually and normally passed against minorities, Dalits, Adivasis, workers; in a nutshell,[against] the exploited section of the society.”

Citing the example of intellectuals like Anand Teltumbde, Sudha Bharadwaj and the individuals protesting against the Citizenship Amendment Act (CAA), National Register of Citizens (NRC) and National Population Register (NPR), he stated that thousands of cases have been registered against the protestors.

Voice of dissent is the target of fastening cases under both the provisions, sedition [under IPC] as well UAPA.”

In the lecture, he briefly discusses how to make use of these acts ‘against the ruling party, the party in power, the majoritarian class, and the rich class.’

Delving into the issue of rampant defection, i.e. switching of parties, in India, he explained in detail the dishonourable system existing in Karnataka, Goa and Madhya Pradesh. He highlighted the existing practice of providing an enormous amount of money to the MLAs, just to overthrow the democratically elected government, and to create disaffection and disloyalty against those in power, and promote switching of sides. Commenting on the situation, he said:

MLAs were lured, made to switch sides, defection, conspiracies, exchange of money, wrongful confinement- all to bring down the democratically elected government.” Along with those in power having “mastered the art of horse-trading, [inciting] contempt, hatred, disaffection, disloyalty to[wards] the democratically elected government

In addition, he refers to the following activities as the backdrop of ultimately destabilising, overthrowing, and replacing a democratically elected government, just to install a horse-traded government:

  • Conspiracy to overthrow the existing government
  • Mobilisation of money
  • Airlifting
  • Unlawful assembly for unlawful activities
  • Unlawful association for unlawful activities
  • Conspiracy for the unlawful association for unlawful activity
  • Mobilisation of funds for the unlawful association and unlawful activities

Next, he drew attention towards Section 2 (o) {Unlawful Activity}, Section 2 (p) {Unlawful Association}, Section 10 {Penalty for being member of an unlawful association, etc.} and Section 13 {Punishment for unlawful activities} of the UAPA.

He then drew a link between the said sections and the activities committed by individuals that took place to create feelings of hatred, contempt, disaffection, and disloyalty. He observed that all such associations were unlawful associations with the motive to commit unlawful activities. He also highlighted the fact that such an assembly or association need not be registered or named; the very association itself commits unlawful activity.

Pointing out the booking of CAA protestors under the provisions of UAPA, he established that the act of the MLAs of different parties getting motivated and resigning, leading to the fall of the government of the day, falls under the purview of the definitions under S.2 (o) and S.2 (p) of UAPA. He stated that such associations and acts are considered to be unlawful associations for unlawful activities, and no prudent man can say otherwise.

He further brought light upon Section 18 of the UAPA. (Punishment for conspiracy, etc.). He made a connection between the different locations and the support received by ex-CMs, ex-HMs, present HMs, MPs, MLAs, all planning to overthrow the government. He further explained that raising, collecting, receiving, providing, and paying money is an offence under S.17 of the UAPA. (Punishment for raising funds for the terrorist act.)

Speaking of sedition, he explained the term as also being a scheduled offence under the National Investigation Agency Act, 2008 (NIA Act). He further spoke of such bringing a government to a standstill for months, with no governance at all.

The acts, the actions, the conspiracy, the money collected, unlawful assembly, unlawful activity, [all acting in a] cumulative effect brought a government down. A structure, a system was destroyed.”

He then brought attention to the fact that no case has been registered against any of the members of such associations, which is a matter of national ramification. He placed great emphasis on the need for investigating the procedure behind acquiring and generating such enormous amounts of money, the manner in which it is transferred, the place of conspiracies, persons providing logistics, etc.

 “They[the ruling party, the rich, and the powerful] are lawmakers, also lawbreakers, always in collusion with law-keepers. Lawmaker, law-keeper, and lawbreaker all sailing together, dominating two pillars of the Constitution- Executive and the Legislature; it is with them.”

He then underlined the significance of the role of the judiciary in maintaining checks and balances by stating that “in a democracy like ours, checks and balances, investigation and prosecution, is within the domain of the judiciary.”

Adv S Balan then examined the steps which can be taken against individuals inciting and participating in such horse-trading practices to overthrow the government in power:

  •  Lodge an FIR
  •  File a private complaint
  • Refer to the National Investigation Agency (NIA) for investigation under S.156 (3) of the Code of Criminal Procedure, 1973 (CrPC).
  • Approach the NIA Court with a prayer to take cognizance of the offence and enquire under S.202 of the CrPC, or delegate its power to any officer to enquire and report and ultimately issue summons under S.204 of the CrPC.

He then came to the issue of whether it is possible to file a complaint under S.2 (d) of the CrPC before a Magistrate, before the NIA Court or a Magistrate’s Court, to take cognizance, or, without taking cognizance, refer it to the NIA for investigation?

For this, he first brought up the question that whether MLAs are ‘public servants’ as defined under S.21 of the IPC. He explained that the Honourable Supreme Court in R. S. Nayak vs A. R. Antulay[i] held that MLAs are not public servants and that sanction is not necessary. He elucidated that one can straight away present a complaint, as defined under S.2(d) of the CrPC, under S.200 of the CrPC. The Court can take cognizance under S.190 of CrPC. He also pointed out the existence of two agencies by making a reference to S.3(1) and S.3(3) of the NIA Act.

Then he arrived at the issue of whether any individual can set the law into motion before an agency, or an authorised officer alone can set the law into motion?

He answered this by stating that on reading the provisions of the NIA Act, one can infer that it is not mandatory that only official of the government alone can set the law into motion; any individual can do so. He also mentioned that approaching the NIA directly without approaching the local police is permitted.

He mentioned the clockwork as follows:

  • An Advocate can advise the informant to approach the NIA, in whose jurisdiction the incident took place. The officer is bound to register the case.
  • If he fails to register the case, then the informant can approach the Superintendent of the Police of the NIA for the registration of the case.
  • If that is unsuccessful as well, then a writ under Article 226 of the Constitution of India, 1950 can be filed to direct the officer-in-charge of the NIA to register and proceed further.

He further provided the alternative of filing a ‘private complaint’ under S.200 and S.2(d) of the CrPC before the NIA Court, a deemed Sessions Court. Relying on S.2 (h) of the NIA Act, he illustrated that a ‘complaint’, as defined under S.2(d) of the CrPC, can be presented before a Court constituted under S.11 or S.22 of the NIA Act.

Drawing attention to S.16 (1) of the NIA Act, he highlighted the usage of the words “upon receiving a complaint”, stating that “if a complaint filed before the NIA Court, it [the Court] can take cognizance. A complaint can also be filed before other courts as defined in S.2(d) of the CrPC.” He also mentioned that a First Information Report (FIR) can also be filed with the local police.

He then placed heavy emphasis on the mandatory filing of an affidavit while filing a complaint before a Court, as was laid down in Priyanka Srivastava & Anr vs State Of U.P.& Ors[ii]. He also relied on the Gauhati High Court’s judgments in Redaul Hussain Khan vs The State of Assam & Ors[iii] and Jibangshu Paul vs National Investigation Agency[iv] to support his stand.

Concluding the session, he briefly stated that law can be set into motion by lodging an FIR. If that fails, one can file a complaint before the NIA Court, which is duty bound to refer the complaint to the National Investigating Agency for investigation. He also reaffirmed that the Court can take cognizance of the offence, record statements, and delegate its power to any officer of any police station as it desires as the delegated authority and thereafter, issue summons under S.204 of the CrPC. He then made the following observation:

So, there are laws, buttressed by decisions by the Gauhati High Court, by law, by the Supreme Court. So, we are not helpless. We can fasten criminal cases against the person in power, the person who has money and muscle power. We can bring these MLAs, disgruntled MLAs, their supporters, howsoever high they are [in position]; we can book them under law.”

He concluded the session by quoting Dr.Ambedkar:

however good a Constitution may be, it is sure to turn out bad because those who are called to work it, happen to be a bad lot. However bad a Constitution may be, it may turn out to be good if those who are called to work it, happen to be a good lot.”

-Dr. B. R. Ambedkar, Constituent Assembly Speech, 1949.

 

Provisions Mentioned:

The Code of Criminal Procedure, 1973

S.2 (d): “Complaint”

S.156 (3): Police officer’s power to investigate cognizable case.

S.190: Cognizance of offences by Magistrates.

S.200: Examination of complainant.

S.202: Postponement of issue of process.

S.204: Issue of process. 

The Constitution of India, 1950

Article 226: Power of High Courts to issue certain writs 

The Indian Penal Code, 1860

S.21: Public Servant

S.124 A: Sedition

The National Investigation Agency Act, 2008

S.2 (h): “Special Court”

S.3 (1): Constitution of National Investigation Agency

S.3 (3): Constitution of National Investigation Agency

S.11: Power of Central Government to constitute Special Courts.

S.16 (1): Procedure and powers of Special Courts.

S.22: Power of State Government to constitute Special Courts.

The Unlawful Activities Prevention Act, 1967

S.2 (o): “Unlawful Activity”

S.2 (p): “Unlawful Association”

S.10: Penalty for being member of an unlawful association, etc.

S.13: Punishment for unlawful activities.

S.17: Punishment for raising funds for terrorist act.

S.18: Punishment for conspiracy, etc.

[i] 1984 AIR 684

[ii] Criminal Appeal No.781 Of 2012

[iii] 2009 (3) GLT 855

[iv] Criminal Appeal No.29 of 2011