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AFSPA, Sedition & Defamation Laws indepth analysis

AFSPA, Sedition & Defamation Laws indepth analysis

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  • GS3 || Security  || Tackling Security Threats || Major Laws & Policies

Why in news?

  • The Congress party’s manifesto for the 2019 Lok Sabha elections promises to repeal or amend laws like Sedition, Defamation and AFSPA. Here we discuss these three laws.

Sedition

  • Meaning: Sedition is a cognisable, non-compoundable, and non-bailable offence, under which sentencing can be between three years to imprisonment for life.
  • The Indian Penal Code in Section 124A lays down the offence:
    • “Whoever, by words, either spoken or written, or by signs, or by visible representation, or otherwise, brings or attempts to bring into hatred or contempt, or excites or attempts to excite disaffection towards the Government established by law in India, shall be punished with imprisonment for life, to which fine may be added, or with imprisonment which may extend to three years, to which fine may be added, or with fine.”
  • Concern: Since its introduction in 1870, meaning of the term, as well as its ambit, has changed significantly.
    • Previously, it was used by the British to target nationalist leaders.
      • Bal Gangadhar Tilak, charged twice under the law, was sentenced to six years imprisonment from 1908 to 1914 at Mandalay (present-day Myanmar).
      • Mahatma Gandhi was also charged under the section for his articles in Young India. He famously called the defamation law the “prince” among criminal laws which thwarted free speech in the country.
    • After Independence, there were discussions in the Constituent Assembly around the subject, with many of its members being charged under the section themselves. Yet, the section continued to remain in force.
  • Revision: In 1962, the Supreme Court, while curtailing the extent of its application, upheld its constitutionality.
    • The apex court in the Kedar Nath case, observed that every state has to be armed with the power to punish those who by their conduct, jeopardise the safety and stability of the state, or disseminate such feelings disloyalty as have tendency to lead to the disruption of the state or to public disorder.
    • Since then, the courts in the country have repeatedly observed that the section cannot be used to curb criticism of the government, and can only be used as a measure for maintaining public order.
    • Nevertheless, successive governments have been accused of misuse of the sedition law.

Defamation

  • Provisions: According to Section 499 of the Indian Penal Code:
    • “Whoever, by words either spoken or intended to be read, or by signs or by visible representations, makes or publishes any imputation concerning any person intending to harm, or knowing or having reason to believe that such imputation will harm, the reputation of such person, is said, except in the cases hereinafter expected, to defame that person.”
  • India is one of the few countries where defamation is both a civil and a criminal offence.
    • as a criminal offence, it is bailable, non-cognisable and compoundable, punishable with imprisonment up to two years, or with fine, or with both.
    • Once charged in a criminal trial, the accused has to prove that they are covered under any of the 10 exceptions to the section, which range from an imputation which is truthful, to one which is made in good faith.
  • Elsewhere: The English common law has different punishments for libel (written) and slander (spoken).
    • India does not make this distinction – both being covered under the meaning of Section 499 itself.
    • In the US, a distinction has been made between private and political defamation, where more burden of proof is placed on the prosecution in the latter.
  • Changes: Like sedition, many governments have been accused of misusing the criminal law for suppressing legitimate criticism.
    • If removed from the IPC, defamation would no longer remain a criminal offence.
    • It would then continue as a civil wrong or tort, which in India is not stipulated by legislation and is guided by judge-made law.

Armed Forces Special Powers Act (AFSPA)

  • Purpose: AFSPA was passed in 1958 for the North-East and in 1990 for Jammu & Kashmir, the law gives armed forces special powers to control “disturbed areas”.
    • These are designated by the government when it is of the opinion that a region is in such a disturbed or dangerous condition that the use of armed forces in aid of civil power is necessary.
  • The preamble of the law defines it as:
    • “An Act to enable certain special powers to be conferred upon members of the armed forces in disturbed areas.”
  • Provisions: The armed forces have been empowered to –
    • open fire,
    • enter and search without warrant, and
    • arrest any person who has committed a cognisable offence, all while having immunity from being prosecuted.
  • Currently, AFSPA is implemented in Jammu & Kashmir, Assam, Nagaland, and parts of Arunachal Pradesh and Manipur.
  • The law has been repealed where insurgencies have subsided, and when governments have gained confidence of managing the region using the police force.
    • Tripura became AFSPA-free in 2015, and in 2018 the Centre also removed Meghalaya from the list, while also restricting its use in Arunachal Pradesh.
  • Contention: Critics both in India and abroad have criticised government agencies for acting with impunity under AFSPA.
    • Manipuri activist Irom Sharmila had been on a 16-year hunger strike in protest against AFSPA.
    • The Jeevan Reddy Committee formed in 2004 has recommended a complete repeal of the law.

Mains question

  • Examine the relevance of AFSPA, sedition and defamation laws in a free and democratic society.