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Open Forum
New Delhi, 31 October 2008
The Press & Sedition
POLICE
STATE IN SLOw MARCH
By Ashok Kapur
A case of sedition recently slapped by the Police
Commissioner of Ahmedabad on the local editor of a national daily has deep
ramifications for the rule of law, a basic feature of the Constitution. It is
not merely a case of a dispute between the police officer and the editor.
The case raises fundamental issues of governance in a
functioning democracy. It has serious legal as well as administrative
implications. Such a tendency on the part of the supposed guardians of the law
needs to be nipped in the bud. Otherwise, our claim of being the world’s
largest democracy will be reduced to an idle boast. Sedition is a serious crime
under the Indian Penal Code. It is an offence against the State, punishable
with the life imprisonment. It is distinguishable from other criminal offences
which are generally committed against individuals or property. Sedition has
been defined in modern jurisprudence as “tending towards treason”. It is an
attempt to overthrow the government by unlawful means. It has been declared as
a virtual “revolt against the government established by law”.
The content of the impugned article against which the Police
Commissioner concerned has launched the case are not readily available. One may
assume the worst case scenario that the newspaper had given an open call for
the violent overthrow of the State government. Even so, the Police Commissioner
of a metropolitan city has absolutely no jurisdiction to act on behalf of the State
government. One of the most celebrated cases of sedition during the freedom
movement decided by the Federal Court at the turn of the 19th
century involved Lokmanya Tilak. It was ruled that the offence was not against
any set of public administrators or officials but against the government as a
collective entity. The Supreme Court of independent India reinforced the judicial
sentiment of the Federal Court in a landmark judgment in 1962 to the effect
that even strident criticism or censure of the government or its officers does
not constitute sedition. It cannot be misconstrued as exciting disaffection
against the State.
The very definition of sedition under the penal code
protects the rights of the Press of bona fide criticism of the government and
its officials. Indeed, the court emphasized the privileged right of a free
Press in a free county to do so. Even the federal Court in pre-independent India had ruled
that censuring the government “even bitterly or forcibly” or seeking its ouster
through constitutional means doesn’t amount to sedition.
Criminal prosecution of a newspaper, as represented by its editor
is a grave matter, particularly on a charge of sedition. Even during British
rule, such prosecution was expressly discouraged, especially against an editor,
proprietor or publisher. According to the Criminal Code of India, introduced in
1860, the very dissemination of seditious material was prohibited under
preventive law. Powers were delegated by the British government to magistrates
in the field to keep an eye on attempts at serious offences, including
sedition, but only against individuals.
In British India, the power
to launch preventive action against newspaper editors was never delegated to
individual magistrates but reserved with the government. The British were aware
that delegation of such powers to field magistrates could lead to potential
misuse, and thereby impair the basic right of Press freedom. Thus the question
of delegating such powers to individual magistrates, let alone police officers,
did not arise. When the Parliament of independent India adopted the Criminal Code of
1860, arguably the finest in the civilized world, it maintained this position
as a safeguard against misuse.
Assuming for the sake of argument that the national daily
had urged the citizens to overthrow the government by unconstitutional means,
the question arises if the Police Commissioner of a city has legal jurisdiction
to act on behalf of the State government and launch prosecution. The broad
administrative issue assumed significance. The metropolitan Police Commissioner
in any State is merely the head of a directorate, howsoever important or
powerful he may deem himself to be.
All directorates of the government, both in the Union and State governments, function under
administrative ministries and departments headed by elected ministers. The
powers of supervising ministries cannot be delegated to heads of directorates.
Elected ministers, being members of the Cabinet are heads of ministries, not
directorates. For which reason, the Cabinet acts, individual cases, through
ministries. The powers of the Cabinet, delegated to the ministries cannot be
sub-delegated to the directorates. Otherwise, it would strike at the root of
the Cabinet system of government.
It is a different matter that wherever the ‘police
commissioner system’ is in vogue, if at all it can be called a system, the
heads of police directorates habitually deal directly with the cabinet
ministers if not the chief minister. The administrative departments, manned by
civil servants, all trained magistrates and supposed to supervise the
directorates are rendered largely dysfunctional.
Under the Cabinet system of government, only the elected Cabinet
has the authority to act on behalf of the State government. Once the Cabinet
decides on a particular course of action, it may choose to delegate its
authority to individual departments. In the instant case, to the State home
department and no other authority. Secondly, all executive action by the State
is taken under the authority of the Governor. A mere head of a directorate
cannot act on behalf of the Governor. Prime facie, therefore, the Police
Commissioner appears to have acted without lawful authority.
The action taken by the Police Commissioner is symptomatic
of the wider malaise afflicting the government both at the Centre and in the States.
Wherever the ‘commissioner system’ is in vogue, the police heads of these
directorates often bypass the controlling ministry. But there is hope yet. The
widespread misuse of authority by public servants, particularly members of the
police force has not escaped the attention of the Supreme Court. In a landmark
judgment delivered in 1994, it has held that if a public servant harasses or
victimizes a citizen through capricious or malicious action, the individual
public servant as distinct from the State, would be liable to pay compensation
to the victim.
All law is governed by precedent. And there is a grand
precedent in history for such conduct. It was Louis XIV of France who
declaimed: “I am the State.” ---INFA
(Copyright,
India News and Feature Alliance)
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