Days after the Indian cricket team suffered a resounding defeat, the Uttar Pradesh government announced that it would invoke charges of sedition against those who cheered for the rival team Pakistan. The state's reaction thus raises the query, is it illegal to cheer for a rival sports team? Legal experts say NO.
According to news reports, several people across Jammu and Kashmir, Uttar Pradesh and Rajasthan have been booked because they celebrated Pakistan's victory. In Rajasthan and Jammu and Kashmir, people have lost their jobs as well. Two separate FIRs have been filed against some students, hostel wardens, and college management of the Government Medical College (GMC) Srinagar and Sher-i-Kashmir Institute of Medical Sciences (SKIMS) in Kashmir for allegedly raising Pakistan's win and raising "pro-Pakistan slogans".
"Those celebrating Pakistan's victory will face sedition," Uttar Pradesh Chief Minister Yogi Adityanath tweeted from his official Twitter handle on October 28. The tweet followed news of the arrest of three Kashmiri college students who hailed Pakistan's October 24 victory against India at the ICC T20 World Cup held in Dubai.
The Kashmiri students, studying at Agra's Bichpuri campus of Raja Balwant Singh (RBS) Engineering College, were arrested on October 27 under the provisions of Unlawful Activities (Prevention) Act (UAPA), 1967, and sedition. A local court remanded the three to judicial remand for 14 days on October 28. The college has suspended the three students as well.
Safiya Majeed, a technician working in the Operation Theatre (OT) of a Kashmir hospital was fired because she showed "disloyalty towards the nation" after she allegedly updated her WhatsApp status celebrating Pakistan win. "Whereas no employee of this institution shall be allowed to be disloyal to the nation and whereas, as reported by the Head of Department of Gynae & Obst., she had proceeded on five days leave with effect from October 21 and she failed to join duty after the expiry of leave period,'' Majeed's termination order read.
"Didn't realize cheering for a particular team was against the law?," former tennis player Martina Martina Navratilova tweeted.
BOOM examines the debate surrounding this issue.
Is it illegal to cheer for a rival cricket team?
At the outset it is pertinent to point out that it is not illegal to cheer for a rival sports team. There is no law that bans anyone from cheering for any team other than India. So, if it is not illegal, why are various people losing their jobs or being charged under the provisions of anti-terror laws or sedition? Experts are perplexed as well.
Advocate Abhinav Sekhri says that the laws of sedition and UAPA are so broad that ultimately it is the state or the police which decides what is national or anti-national.
BOOM spoke to several former Supreme Court judges, and one who did not wish to be quoted said, "There is nothing illegal about cheering for another team. The sections are being grossly misused."
India is not at war with Pakistan hence it is not an enemy state, former Supreme Court judge Deepak Gupta pointed out.
Former attorney general Mukul Rohatgi concurred with the opinion expressed by the former judges but added that "in the course the cheering if you put down the country, your leaders or even the national flag then it is certainly not acceptable."
UAPA was originally supposed to be an anti-free speech law
UAPA was actually an anti-free speech law, advocate Abhinav Sekhri told BOOM. The main plank of argument around it was that it criminalized political speech. Politicians at the time feared it and were critical of it saying UAPA criminalized free speech of a political nature, he added.
When UAPA was first conceived by then Prime Minister Jawaharlal Nehru in 1962-63, it was intended to act as a measure to deal with anti-secessionist feelings, he added. At the time, India was at war with Pakistan, and there was a strong secessionist movement in Tamil Nadu which wanted to be a sovereign state.
In fact, by the time the law was tabled in the Parliament for consideration, it was argued that there was no longer need for this law because the anti-secessionist movement and the feelings had died by then, Sekhri said recalling that bit of history.
In 2004, the erstwhile anti-terror law Prevention of Terrorism Act (POTA), 2002 was repealed and relevant provisions pertaining to terror-related activities were inserted in the UAPA.
Till then, UAPA was a smaller statute that dealt with combating the idea of breaking India up.
Space for liberal thinking is getting eroded: former SC judge
Off late, criticism for the ruling dispensation is often viewed as disfavour to the country.
National Crime Records Bureau's (NCRB) 2020 shows a decline in the number of cases registered under the offenses against the state. But, if one looks at NCRB data from 2019, sedition cases rose by 160% between the years 2016-2019.
"This government may have used it (sedition) more, but every government has misused it," Justice Gupta told BOOM. "The space for liberal thinking is getting eroded," he added.
Referring to the issue at hand (people being booked because they cheered for Pakistan), a former Supreme Court judge said speech is contextual. "The content of the speech is never a problem, it is only at the stage where it may lead to the lawlessness that it becomes an issue," the judge said.
"Now take Sachin Tendulkar for example. He is one of the greatest sportsmen we have seen in God knows how long and is a Bharat Ratna winner. So what if he says, this was a well-fought match and Pakistan deserved to win, does he then become anti-national? This is the perspective. Tendulkar as we know is staunchly nationalistic, he played for the Indian team," the judge added.
Process of fighting sedition case is punishment enough
Despite the high number of cases, the conviction rate of sedition cases is an abysmal 3%.
The ambit of UAPA is vast and vague. Disaffection towards the state could also be prosecuted under this law. But the term disaffection has not been clearly defined leaving it open for interpretation. UAPA is also specialized legislation and bail is almost an impossibility.
The spate of sedition and UAPA cases against those largely perceived to government critics has given rise to the refrain that the process is the punishment.
"There is no doubt that the UAPA is a harsh law. Even though the Supreme Court has upheld the constitutional validity of UAPA, it never thought that there would be so many cases of misuse," former Supreme Court judge Deepak Gupta said.
"The process is definitely the punishment, advocate Abhinav Sekhri added.
Concerned over misuse of Sedition: SC
Several Supreme Court judgments have laid down the law upholding one's right to free speech. Several others while underscoring the same have also pointed out that free speech is not an absolute right and comes with limitations. Even then, the limitations do not apply to cheering or sloganeering if it does not directly result in public disorder or violence.
It is sedition only if the words lead to direct incitement or violence. The proverbial spark to the powder keg, advocate Abhinav Sekhri said.
Many times, the top court has been forced to clarify that mere words or slogans do not constitute sedition. "Mere strong words used to express disapprobation of the measures of the government with a view to their improvement or alteration by lawful means" is not sedition, the Supreme Court said upholding the 1962 Kedar Nath verdict in its Vinod Dua judgment.
In May 2021, Supreme Court judge DY Chandrachud observed that a law like sedition had no place in modern democracy and it was time "to define the limits of sedition" .
On July 15, the Supreme Court expressed concern over the misuse of the sedition law observing that it posed a threat to the functioning of democracy. "After 75 years, do we still need this law?," Chief Justice of India NV Ramana had asked Attorney General KK Venugopal adding that sedition was used by the British against freedom fighters like Lokmanya Tilak and Mahatma Gandhi.
On October 10, former Supreme Court judge Rohinton Fali Nariman asked the Supreme Court to repeal sedition and UAPA laws to allow citizens to "breathe more freely". "I exhort the Supreme Court to not keep sending the case back to the government. Governments will come and go, and it is not the government's business to start amending or repealing laws," Justice Nariman said while speaking at an event.
"There is a live case before the Supreme Court and it is important that the court use its power to strike down section 124A and the offending provisions of the UAPA to ensure that the citizens can breathe more freely. Maybe then India will move from 142 out of 180 to much higher (in the RSF's 2021 World Press Freedom Index)," Justice Nariman said while speaking at an event.
Supreme Court's 2015 Shreya Singhal judgment says that a dissenting discourse is not a crime. The top court's Balwant Singh judgment emphasized that stray slogans like "Khalistan Zindabad" are also not a crime.
Even as a Delhi court denied Sharjeel Imam bail saying his anti-CAA (Citizenship Amendment Act) speech will have a debilitating effect upon public tranquility, peace, and harmony; the Delhi High Court pulled up the Delhi Police for its "wanton use" of the anti-terror law while granting bail to activist-students Asif Iqbal Tanha, Devangana Kalita and Natasha Narwal who are accused in the February 2020 Delhi riots case.
While granting bail, the high court observed: "... in its anxiety to suppress dissent and in the morbid fear that matters may get out of hand, the State has blurred the line between the constitutionally guaranteed 'right to protest' and 'terrorist activity'. If such blurring gains traction, democracy would be in peril."On the purpose of the terror law the high court said: "... the intent and purport of the Parliament in enacting the UAPA, and more specifically in amending it in 2004 and 2008 to bring terrorist activity within its scope, was, and could only have had been, to deal with matters of profound impact on the 'Defence of India', nothing more and nothing less."
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