Amnesty case: Yet again Congress shows that it isn't afraid to use divisive discourse

Faced with the unrelenting juggernaut of manufactured hyper-nationalism and majoritarian fundamentalism from the powerful political right, the response of India’s largest national opposition political party, the Indian National Congress, has for long been unsteady, confused and lacking in the courage of its convictions. Its core ideology, based on the rich legacy of the freedom struggle and the first decades after Independence, is secular, social democratic, pluralist and inclusive. Its practice, however, frequently wavers and drifts further and further from these declared goals.

The demolition of the Babri Masjid – marking the lowest ebb in communal relations after the Partition riots – transpired under the watch of the Congress, as did many bloody episodes of communal violence against religious minorities. In occasions when communal massacres occurred under the watch of governments of other parties – such as in Gujarat in 2002, Kandhamal in 2008 and Muzaffarnagar in 2013 – the Congress never stood openly in defence of the survivors. To fight the onslaught of a dozen years of aggressive majoritarianism by Chief Minister Narendra Modi in Gujarat, it chose another Rashtriya Swayamsevak Sangh pracharak Shankarsingh Vaghela as the face of the tepid Congress fight-back. In terror cases, its governments have profiled innocent Muslim men and held them under draconian anti-democratic laws for years behind prison walls. And when minorities and Dalits are beaten with the stick of allegations of cow-slaughter, its leaders call for outlawing cow slaughter nationally.

Even so, the registration by the Congress-led state administration of charges of sedition against Amnesty International India for organising a programme on human rights abuses in Kashmir held on August 13, marks a new low in this Congress policy of covert soft majoritarian hyper-nationalism. Flashback exactly six months back, to the heady evening of February 13, 2016. That day, I joined several thousand students, teachers and political leaders outside the office of the Vice Chancellor of Jawaharlal University in Delhi, later to be called Freedom Square, to protest the arrest of the JNU Students’ Union President Kanhaiya Kumar under charges of sedition. Kanhaiya Kumar had been charged with the grave crime of sedition which, if proved, could result in his spending his life in prison.

This charge was levelled against him by the Delhi police, which is administered by the union BJP-led government. They alleged that Kanhaiya Kumar was responsible for anti-Indian slogans raised by some masked protestors in a meeting on February 9 to denounce the capital punishment awarded to the Kashmiri man charged with abetting terror crimes, Afzal Guru, and that as the organiser of the meeting he was guilty of the crime of sedition. A spontaneous student and public protest was organised the next day at Freedom Square, and I was among those who had been invited by the students to speak. Speaker after speaker raged against the criminalisation of debate and dissent by misusing the law criminalising sedition, pointing to repeated Supreme Court rulings that dissent against the state is not a crime unless there is a direct incitement to violence.

An uproar

While the meeting was under way, there was suddenly an uproar from one corner of the gathering, and the counter-slogans being raised throughout the gathering by the Akhil Bhartiya Vidyarthi Parishad, the student wing of the Bhartiya Janata Party suddenly rose to a much higher decibel level. It turned out that Congress Vice President Rahul Gandhi had arrived to also address the meeting. Enraged ABVP students surrounded him raising black flags as Gandhi and his security men pushed their way through the crowd of students.

Throughout his speech, the small cluster of ABVP students shouted slogans like "Go Home Rahul Gandhi", trying to drown his voice as it drifted to the crowd through the makeshift battery-operated mike (the university had not allowed the students to use a public address system). But at the same time, the massive gathering of students cheered him enthusiastically. Their endorsement was unusual from an assembly of mostly left-leaning students. But his speech was one of the finest that I have heard from him. His words were measured and marked by strong conviction, as he welcomed even the ABVP students who were heckling him, declaring that he was proud to belong to a democracy in which every voice could be heard including theirs. He said that the crushing of dissent by instruments like the law on sedition weakened democracy, and thereby the country.

Rahul Gandhi was attacked bitterly for his stand in this matter by BJP leaders. BJP president Amit Shah in particular challenged him publicly to "clarify before the country" whether he supported "anti-national slogans". Even within Parliament, Finance MinisterArun Jaitley charged him with "ideological hollowness" reflected in his public sympathies for persons "who raised slogans for breaking up India". But Rahul Gandhi stoutly held his ground at that time.

Broken Families

Just six months later, in the only large state with a Congress government today, Karnataka, the state administration uses precisely the same law on sedition (section 124 A of the Indian Penal Code) to register criminal charges based on a complaint by the ABVP against a leading international human rights organisation. The irony could hardly be greater. The setting was not a university but a hall in a college, the issue was similar, a debate about alleged human rights violations in Kashmir, and the flashpoint was also similar, slogans for azadi and against the Indian nation raised allegedly by Kashmiri students.

The programme titled "Broken Families" was organised by Amnesty International India, which invited a senior journalist of impeccable credentials Seema Mustafa to moderate a discussion with three Kashmiri families about alleged human rights violations by security forces, including enforced disappearances, using the shield of immunity that Section 7 of the Armed Forces Special Powers Act, 1990 extends to men in uniform. Several alleged human rights violations were documented in the Amnesty Report released a year earlier called "Denied: Failures in Accountability for Human Rights Violations by Security Force Personnel in Jammu and Kashmir". Three families whose predicament is described in the report testified in the Bangalore meeting about their tragic stories of loss and injustice, and one of these testimonies was adapted and presented in the programme as a short play, followed by a song and a discussion. A Kashmiri Pandit, RK Mattoo, who is now resident in Bangalore was also invited to join the panel discussion after he contacted the Amnesty authorities that the viewpoint of Kashmiri Pandits should also get fair space in the meeting.

From accounts of the event, which was video-recorded, it appears that an observation towards the end of the discussion by Mattoo that the Indian army was one of the most disciplined in the world angered some Kashmiri students in the audience, and they raised slogans for azadi and against India. This led to a scuffle between activists of the ABVP and the Kashmiri students.

Following this, the ABVP students filed a complaint with the local police, charging panellists Sindhujaa Iyengar, Seema Mustafa and Roushan Illahi with singing "anti-national" songs and delivering "anti-national" speeches, and Amnesty International India with indirectly supporting terrorists, Pakistan and ISI by organising this event. The only song in the programme was by Roushan Illahi, who sang about the anguish of growing up amidst violence in Kashmir, echoing in his lament the anguish of tens of thousands of young Kashmiris. Iyengar and Mustafa also made no speeches but participated in the panel discussion.

Legal options

What were the legal options available to the Bangalore police after the ABVP filed their complaint against Amnesty International India, journalist Seema Mustafa and other participants in the programme? A recent ruling of the Supreme Court in the Lalita Kumari matter does mandate the police to register a First Information Report based on complaints filed with them. Therefore, the police did not err in registering an FIR. But the legal position is absolutely clear that the police must apply its mind to which sections of criminal law if any apply prima facie in the matters alleged in any police complaint; and therefore the police was not at all obliged to apply the sedition sections in this case merely on the basis of the ABVP complaint. In fact, the Lalita Kumari judgment allows the police a couple of days for a preliminary inquiry before filing the FIR. The entire Amnesty event was video-recorded, and Amnesty offered the record to the police.

It was therefore the considered decision of the Karnataka police to apply the followings sections of the Indian Penal Code based on the ABVP complaint: Section 142 (being member of an unlawful assembly), Section 143 (whoever is a member of an unlawful assembly), Section 147 (rioting), Section 124A (sedition), and Section 153A ("promoting enmity between different groups on grounds of religion, race, place of birth, residence, language", etc., and doing acts prejudicial to maintenance of harmony).

It is the registration of the grave crime of sedition in this case that completely contradicts the publicly stated opposition of the Congress Vice President Rahul Gandhi to the charge of sedition against student leaders in JNU earlier this year. Sedition under Section 124 A was famously described by Mahatma Gandhi as "perhaps the prince among the political sections of the Indian Penal Code designed to suppress the liberty of the citizen. Affection cannot be manufactured or regulated by law." In the JNU matter, the Congress had repeatedly pointed out that the Supreme Court has clarified on several occasions that for the crime of sedition to apply, there must be an active and direct incitement to violence against the state. This clearly had not happened in the university campus of JNU in February, and it did not happen in the meeting room in United Theological College, Bangalore six months later.

In the case of Shreya Singhal versus Union of India, the Supreme Court ruled: "Mere discussion or even advocacy of a particular cause howsoever unpopular is at the heart of [the right to freedom of expression]", clarifying unequivocally that "only when such discussion or advocacy reaches the level of incitement" can this right be restricted. In another well-known and often-cited judgment, the case of Kedar Nath Singh versus State of Bihar, the Court had held that speech would amount to sedition only if it involved incitement to violence or public disorder. The court ruled: "[C]riticism of public measures or comment on government action, however strongly worded, would be within reasonable limits and would be consistent with the fundamental right of freedom of speech and expression."

Chief minister's defence

Yet what did the Chief Minister Siddaramaiah say about the decision of his government to file charges of sedition against Amnesty International India? He defended his decision as though it was a routine matter and the state government had no option but to register a case of sedition in the matter based on the ABVP complaint before it. "The FIR has been registered," he said. "The police officials are probing the case. After the investigation, law will take its own course." Home Minister G Parameshwara was more pointed in declaring that the intention and background of those involved would be investigated. But as criticism of this official action mounted, the Chief Minister and his cabinet colleagues openly adopted the discourse of BJP leaders about "anti-national" activities. The Telegraph reported that Chief Minister Siddaramaiah declare dthat nobody would be spared if they indulged in "anti-national activity". State Home Minister Dr G Parameshwara, Law Minister TB Jayachandra and Higher Education Minister Basaravaraja Rayareddy also were reported to defend the sedition charges saying anti-national activity would not be tolerated in Karnataka.

Higher Education Minister Rayareddy went still further, announcing that the government had instructed college managements to expel the Kashmiri students for raising slogans demanding azadi for Kashmir. There was now little to distinguish the stand of the BJP-led government in the centre criminalising students in JNU and Kashmiri students for allegedly raising slogans against India and for azadi and that of the Congress-led government in Karnataka.

There were also at the same time some publicly dissenting voices in the Congress. Abhishek Manu Singhvi questioned in a television debate the legality of charging an organisation rather than an individual with sedition. Congress leader Digvijaya Singh publicly advised the Karnataka Chief Minister not to make any arrests in the case, and said that the chief minister in turn had assured him that until the police made further investigations, it would not make any arrests. But this did not explain why the Congress-led government filed charges of sedition in a matter when the public stand of the Congress Vice President was that debating human rights violations should not be criminalised as dissent.

The morally and politically weak-kneed and wavering stand of the Congress government has only emboldened the BJP government and the ABVP further. ABVP, Bajrang Dal and Vishwa Hindu Parishad activists have laid a siege on the Amnesty Bangalore office, and Amnesty has advised their staff to work from home for the present. The Home Ministry has announced that it will investigate whether Amnesty International violated the provisions Foreign Contribution Regulation Act under which it receives some of its funds. The gloves are off, there are no pretences. The central government is quite open (and unapologetic) that it is using the charge of FCRA violations as a stick to beat organisations that dissent or raise questions about its policy and politics.

The BJP, the RSS and its affiliate organisations are successful in drawing dramatic and dangerous binaries in the country. Any challenges and dissent - against majoritarian anti-minority and anti-Dalit politics, human rights abuses, militarist domestic and foreign policies, the erosion of the social welfare state, and the market-led development growth model – are all categorised by them as not just voices ranged against the ruling government, but against the nation. As the clamour suppressing left and liberal dissent mounts, the people of India look bemusedly and worriedly towards the largest national opposition party, the Indian National Congress to mount a credible defence of the constitutional values of free speech, secularism and justice. Instead, the party seems intent on borrowing the divisive discourse of its rivals.

It forgets that those who claim to love the country must also defend its freedoms.