Dear Chief Minister Devendra Bhau Fadnavis,

Saprem Namaskar,

I write to you as a Mumbaikar at heart and  a fellow lawyer, to welcome you to the world of  occasional  op-ed writers.

In your response this week to Rajdeep Sardesai's letter to you in the Hindustan Times last week, you wrote about Maharashtra's sedition circular:
"In one of the cases in the High Court, an affidavit was filed by the then Congress-led government and the court delivered a detailed judgment interpreting the scope and ambit of the applicability of sedition, and also directed to convey it to the police. The department made a faithful translation of the judgment in Marathi and conveyed it to all the police stations via an office circular. Every single item in the circular is just a translation of the judgment."

Bhau, this reminds me of a story about how literal translations can be misleading. In the days of the Soviet Union, in the pre-internet Google translate era, the Russians invented a machine to translate from  English to Russian. They tested the machine by feeding the sentence "The spirit is willing but the flesh is weak". The translation in Russian could be retranslated to read "The vodka is fine, but the meat is rotten."

Bhau, something similar seems to have happened with your circular. You see translation is all about context and content in two different languages and cultures. As a well wisher, let me attempt to translate faithfully the legal problem for you. This is all the more urgent because the High Court today seems to have doubted the circular issued by your government.

You will remember that Section 124 A of the Indian Penal Code punishes with upto a life sentence, 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.”

This was the section under which Lokmanya Tilak and Mahatma Gandhi were punished by the British. In free India,  Pandit Nehru advocated it's abolition but nevertheless it continued on the statute book. When doubts arose about its constitutionality in a constitution that protected free speech,  the Supreme Court’s Constitution bench in 1962 ruled in the Kedar Nath Singh case:
“The provisions of the sections read as a whole, along with the explanations, make it reasonably clear that the sections aim at rendering penal only such activities as would be intended, or have a tendency, to create disorder or disturbance of public peace by resort to violence… It is only when the words, written or spoken, etc. which [sic] have the pernicious tendency or intention of creating public disorder or disturbance of law and order that  the law steps in to prevent such activities in the interest of public order. So construed, the section, in our opinion, strikes the correct balance between individual fundamental rights and the interest of public order."

But Bhau, you and I know that what the Supreme Court decides in distant Delhi rarely translates into ground reality. Your predecessor government in Maharashtra used Section  124A to arrest a hitherto unknown cartoonist for some innocuous cartoons during the Anna Hazare movement in Mumbai. When faced with tough questions from court, the Advocate General Darius Khambata withdrew the prosecution. Somebody else filed a case against misuse of the section and an affidavit was filed with some suggested safeguards.

A list of safeguards

Bhau,  when your government came in and stood by the affidavit,  the court recorded your Advocate General Sunil Manohar's assurance that a circular would be brought out with the following elements.
"(i) The words, signs or representations must bring the government (Central or state) into hatred or contempt or must cause or attempt to cause disaffection, enmity or disloyalty to the government and the words/signs/ representation must also be an incitement to violence or must be intended or tend to create public disorder or a reasonable apprehension of public disorder;

(ii) Words, signs or representations against politicians or public servants by themselves do not fall in this category unless the words/signs/representations show them as representative of the government;

(iii) Comments expressing disapproval or criticism of the government with a view to obtaining a change of government by lawful means without any of the above are not seditious under Section 124A;

(iv) Obscenity or vulgarity by itself should not be taken into account as a factor or consideration for deciding whether a case falls within the purview of Section 124A of IPC, for they are covered under other sections of law;

(v) A legal opinion in writing which gives reasons addressing the aforesaid must be obtained from law officer of the district followed within two weeks by a legal opinion in writing from the state’s public prosecutor."

Six months after this judgment, your government issued the circular in Marathi to all its policemen.  Bhau, I am not a Marathi pandit,  but my schoolboy knowledge of the language,  is sufficient to read the circular in its original.  The first guideline suggested the court stated the section would be invoked only when there was “incitement to violence”. This was because the Supreme Court had held the section constitutional only when it was used against "such activities as would be intended, or have a tendency, to create disorder or disturbance of public peace by resort to violence".

Thus an essential ingredient before invocation of the section is an incitement to violence and public disorder. The courts intended that only sufficiently incendiary speech or expression would invite criminal liability under 124A.

But Bhau, the circular sent to your police, reads, "Abhivyakt hinsacharas prakrut karnari ATHVA asantosh nirman karnari asli pahije".  As a good lawyer Bhau,  you'll see that by using the word “athva” (“or”, in Marathi), makes the requirement of  violent incitement purely optional at the instance of the police official. Thus,  a mandatory requirement has been turned into an optional factor.

Bhau,  in addition what the circular seeks to make seditious are the terms “drohbhavna” and “apreeti” – the English equivalents of which are conspicuous by their absence from both the statute as well as the guidelines suggested by the High Court. Because the former easily translates into “rebellious thought(s)” and the latter into “unpleasantness”, the policeman may well mistake every unpleasant,  rebellious thought of mine to be an act of sedition against the government by law established. Even this letter, may then come within the mischief of the section.  That Bhau, is surely not your intention.

The real challenge

Thankfully Bhau, your government's Additional Chief Secretary KP Bakshi has clarified, "Our view is that the Law and Judiciary [department] got confused with certain sentences of the order while translating it in Marathi. The Law and Judiciary department has now suggested corrections and soon the revised version of the circular will be presented before the court."  Hopefully the controversy can now be put to rest.

Bhau, you were elected to translate the dreams of a better tomorrow for  crores of Maharashtrians. Do not translate that mandate for change  into a petty witch-hunt against dissenters and opponents. Do not bother overmuch about locking up some of them, for apreeti, or drohbhavna.

Thank you for a patient reading.

Your well-wisher,
Sanjay Hegde