THE law of sedition has always been one of the most contentious topics of constitutional law jurisprudence in India, with views ranging from calls for the complete abolition of the provision from our statute books to those advocating for retaining the sedition clause in its entirety with a more vigorous implementation. While many others have called for retaining the provision but keeping its implementation within defined legal limits, to strike a balance between national security and fundamental rights.
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The Public debate over this issue was reignited last week when a three-judge division bench of the Supreme Court said in an order on May 31, 2021, in the case of M/s Aamoda Broadcasting Company Pvt. Ltd. & Anr. v. The State of Andhra Pradesh & Ors. (W.P. (Cr.) No. 217/2021) that “there is a need to define the limits of sedition”.
Later in the week, a two-judge division bench of the apex court, in the case of Vinod Dua v. Union of India & Ors., quashed an FIR (first information report) against the petitioner, journalist Vinod Dua, for the offence of sedition. In its judgment, the court made an observation that every journalist shall be protected from the charge of sedition taking into account the interpretation of the offence as propounded in the court’s landmark judgment in the case of Kedar Nath Singh v. State of Bihar (AIR 1962 SC 955).
Since the Supreme Court itself has recognized that there is a need to re-examine these laws, it is important to trace the jurisprudence by Indian courts that have contributed to the present-day conception of the law of sedition.
Genesis of Section 124A of the Indian Penal Code, and pre-independence jurisprudence
Many legal experts argue that the sedition clause is a vestige of British colonial rule, originally introduced to suppress critical voices emanating from the Indian freedom movement. Section 124A of the Indian Penal Code, 1860 (IPC), as we have today, was absent from the original draft of Macaulay’s IPC in 1860, and was only introduced in the year 1870, piloted by James Stephen. This version went through further modification through the IPC (Amendment Act), 1898, since when it has largely retained its form.
The first notable case for the offence of sedition was reported in 1891, in the case of Queen-Empress v. Jogendra Chunder Bose & Ors., (1892) ILR 19 Cal 35, in which the editors of a Bengali magazine were charged for their criticism of the British Government’s policies, specifically regarding the Age of Consent Act, 1891.
The publishers argued that the offence of sedition only penalised writing of seditious content and not the publication thereof, and also challenged the existence of the sedition law itself. They contended that penalising people for exercising their rights went against the original intention of the law.
The Calcutta High Court held that the publishers could not be absolved of legal liability simply because they had not written the seditious content, as the circulation of the magazine by them was intended to be read by the target audience. The High Court had also emphasised upon the distinction between the terms ‘disapprobation’ (that is, legitimate criticism) and ‘disaffection’ (which refers to ‘any feeling contrary to affection’. The court concluded that since only disaffection is penalised, the offence of sedition does not take people’s rights away.
The next landmark case on this matter was that of Queen-Empress v. Bal Gangadhar Tilak & Keshav Mahadev Bal, (1897) ILR 22 Bom 112. In this case, Bal Gangadhar Tilak was tried for sedition for alleged incitement through speech that led to the killing of two British Officials. In this case, a single judge bench of the Bombay High Court agreed with the definition of ‘disaffection’ as propounded in Jogendra Chunder Bose and opined that any ‘bad feelings’ towards the government is criminal, irrespective of the level of bad feeling.
This way, the High Court virtually disallowed all legitimate criticism. It added that there need not be any material consequence at all to qualify the offence of sedition. The court held that in sedition matters, it is the intention of the offender which is of primacy, and could be presumed based on content, audience and circumstances of their seditious speech.
About two decades later, Tilak was again tried for sedition in the case of Emperor v. Bal Gangadhar Tilak, (1917) 19 Bom LR 211, for an article he wrote in which he advocated the attainment of swarajya (‘self-rule’) for Indians. In the article, Tilak explicitly admitted his loyalty to the British Crown but went on to criticise the civil services, arguing in court that the civil services and the British government were two distinct entities.
A division bench of the Bombay High Court rejected Tilak’s contentions, holding that the civil services derived their authority from the State itself, and no such ground for such distinction existed. The High Court, however, clarified that only such criticism of the civil service that can be attributed to the state should be considered seditious.
The court, in this case, took a relatively liberal stance, rejecting the interpretation of ‘disaffection’ given by the single judge bench of the same court in Queen-Empress v. Tilak & Bal, which came out with the broad definition of disaffection as anything contrary to affection. This judgment had a positive impact on free speech, as the actual impact of the alleged seditious speech on the public was taken into account, while reading the intention of the accused.
Sedition jurisprudence in independent India
The case of Tara Singh Gopi Chand v. The State (1951 CriLJ 449) was the first instance of a court in independent India adjudicating on the constitutional validity of section 124A of the IPC. Since India was now an independent republic, constitutional provisions assumed supremacy over British precedents. The then-Punjab High Court, in this case, recognised that section 124A was indisputably a restriction on the freedom of speech and expression, and invalidated the provision on the basis that it was in contravention of the fundamental right of freedom of speech and expression under Article 19 of the Indian constitution.
Soon after, independent India’s first Parliament passed the Constitution (First Amendment) Act, 1951 which, among other things, sought to resolve the anomaly in the constitutionality of the sedition law as a result of the Tara Singh Gopi Chand judgment. It did so by introducing new grounds on which the right to freedom of speech and expression could be reasonably restricted.
In the original Constitution, the only grounds for limiting free speech enumerated in Article 19(2) were the security of the State, defamation, contempt of courts, and decency and morality. The Amendment Act introduced the new grounds of public order, relations with foreign states, and incitement to an offence, for restricting the freedom of speech and expression.
Now, invocation of the offence of sedition was not confined merely to acts undermining the security of the State or tending to overthrow the State; it merely had to be ‘in the interest of the security of the State’. Such wide-meaning terms gave greater discretion to the State invoke the offence of sedition.
The amendment was put to test within two years in the case of Debi Soren & Ors. v. The State (1954 CriLJ 758), in which the accused, an Adivasi leader, was booked for an inflammatory speech against the government. In its judgment, a division bench of the Patna High Court made a clear distinction between disapprobation and disaffection and held that only disaffection leads to public disorder. The High Court also confirmed the constitutionality of section 124A of the IPC, ruling that it does not violate Article 19.
The landmark Kedar Nath Singh judgment
Next, we arrive at Kedar Nath Singh, which is considered the most authoritative judgement of the Supreme Court on the interpretation of the sedition law. In this matter, a five-judge Constitutional bench of the Supreme Court upheld the constitutional validity of section 124A and went on to clarify the correct position of the sedition law in India. In this case, Kedar Nath Singh, who was a member of the Forward Communist Party of Bihar, was charged with sedition for making insulting speeches against the ruling Indian National Congress government.
The apex court clarified that section 124A could not be used to stifle free speech, and could only be invoked if it could be proven that the seditious speech in question led to the incitement to violence or would result in public disorder. Since Kedar Nath criticised the Congress party and not the Indian State, and the speech in question did not lead to any incitement to violence, therefore it did not amount to sedition.
The court also noted that the presence of a pernicious tendency to incite violence is a precondition to invoke the sedition clause. The court upheld the erstwhile Federal Court’s interpretation of section 124A in Niharendu Dutt Majumdar v. King Emperor, (1942) FCR 38, in which its judgment batted strongly in favour of legitimate criticism of the government and against arbitrary restriction on the freedom of speech. The Federal Court had proffered that to constitute the offence of sedition, there needs to be a public disorder or at least a reasonable likelihood of public disorder.
Post-Kedar Nath Singh developments
In another important decision, in the case of Balwant Singh & Anr. v. State Of Punjab, 1995 (1) SCR 411, the accused had been prosecuted for the offence of sedition as he had engaged in sloganeering in favour of an independent Sikh majority state in the wake of Indira Gandhi’s assassination. A two-judge division bench of the Supreme Court ruled in favour of the accused, on the rationale that since the speech in question did not lead to any disturbance of public order, and was not likely to incite any violence in the minds of the target audience, Balwant Singh’s actions, therefore, did not amount to sedition.
Taking into consideration the phrase ‘pernicious tendency’ discussed in Kedar Nath Singh, the court stressed that such tendency was to be ascertained by looking at the consequences of the impugned speech.
Courts, in recent times, have relied on the above interpretation in cases of sedition, with a few modifications. One such modification was observed about a decade back in the cases of Arup Bhuyan v. the State of Assam, (2011) 3 SCC 377 and Sri Indra Das v. State of Assam, (2011) 3 SCC 380, both of which were decided by the same two-judge division bench of the Supreme Court within seven days of each other. In both judgments, the court, adjudicating on charges of sedition and preventive detention, placed reliance on the ‘imminent lawless action’ test laid down by the U.S. Supreme Court judgement in the case of Brandenburg v. Ohio, 395 U.S. 444 (1969). As per this test, all speech is protected by the First Amendment to the U.S. Constitution unless it incites imminent lawless action.
The Law Commission of India, in its Consultation Paper on “Sedition”, published on August 30, 2018, observed that while retaining the offence of sedition was essential to protect national integrity, it should not be used as a tool to curb free speech.
According to data from the National Crime Records Bureau, there has been a significant increase in the number of cases filed under section 124A of the IPC, with such cases rising by 160%, between 2016 and 2019, while the conviction rate for such offences dropped from 33.3% to 3.3.% for the same period. This clearly indicates that the State has been misusing this provision to file baseless or frivolous cases. Such abuse is bound to affect the free speech of citizens by forcing them to self-censor.
Hence, there is an imminent need to relook the invocation of sedition under section 124A, and ensure that the offence is used within defined legal limits, so as to strike a balance between national security and the fundamental rights of citizens.
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On March 31, the World Economic Forum (WEF) released its annual Gender Gap Report 2021. The Global Gender Gap report is an annual report released by the WEF. The gender gap is the difference between women and men as reflected in social, political, intellectual, cultural, or economic attainments or attitudes. The gap between men and women across health, education, politics, and economics widened for the first time since records began in 2006.
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The Global gender gap index aims to measure this gap in four key areas : health, education, economics, and politics. It surveys economies to measure gender disparity by collating and analyzing data that fall under four indices : economic participation and opportunity, educational attainment, health and survival, and political empowerment.
The 2021 Global Gender Gap Index benchmarks 156 countries on their progress towards gender parity. The index aims to serve as a compass to track progress on relative gaps between women and men in health, education, economy, and politics.
Although no country has achieved full gender parity, the top two countries (Iceland and Finland) have closed at least 85% of their gap, and the remaining seven countries (Lithuania, Namibia, New Zealand, Norway, Sweden, Rwanda, and Ireland) have closed at least 80% of their gap. Geographically, the global top 10 continues to be dominated by Nordic countries, with —Iceland, Norway, Finland, and Sweden—in the top five.
The top 10 is completed by one country from Asia Pacific (New Zealand 4th), two Sub-Saharan countries (Namibia, 6th and Rwanda, 7th, one country from Eastern Europe (the new entrant to the top 10, Lithuania, 8th), and another two Western European countries (Ireland, 9th, and Switzerland, 10th, another country in the top-10 for the first time).There is a relatively equitable distribution of available income, resources, and opportunities for men and women in these countries. The tremendous gender gaps are identified primarily in the Middle East, Africa, and South Asia.
Here, we can discuss the overall global gender gap scores across the index’s four main components : Economic Participation and Opportunity, Educational Attainment, Health and Survival, and Political Empowerment.
The indicators of the four main components are
(1) Economic Participation and Opportunity:
o Labour force participation rate,
o wage equality for similar work,
o estimated earned income,
o Legislators, senior officials, and managers,
o Professional and technical workers.
(2) Educational Attainment:
o Literacy rate (%)
o Enrollment in primary education (%)
o Enrollment in secondary education (%)
o Enrollment in tertiary education (%).
(3) Health and Survival:
o Sex ratio at birth (%)
o Healthy life expectancy (years).
(4) Political Empowerment:
o Women in Parliament (%)
o Women in Ministerial positions (%)
o Years with a female head of State (last 50 years)
o The share of tenure years.
The objective is to shed light on which factors are driving the overall average decline in the global gender gap score. The analysis results show that this year’s decline is mainly caused by a reversal in performance on the Political Empowerment gap.
Global Trends and Outcomes:
– Globally, this year, i.e., 2021, the average distance completed to gender parity gap is 68% (This means that the remaining gender gap to close stands at 32%) a step back compared to 2020 (-0.6 percentage points). These figures are mainly driven by a decline in the performance of large countries. On its current trajectory, it will now take 135.6 years to close the gender gap worldwide.
– The gender gap in Political Empowerment remains the largest of the four gaps tracked, with only 22% closed to date, having further widened since the 2020 edition of the report by 2.4 percentage points. Across the 156 countries covered by the index, women represent only 26.1% of some 35,500 Parliament seats and 22.6% of over 3,400 Ministers worldwide. In 81 countries, there has never been a woman head of State as of January 15, 2021. At the current rate of progress, the World Economic Forum estimates that it will take 145.5 years to attain gender parity in politics.
– The gender gap in Economic Participation and Opportunity remains the second-largest of the four key gaps tracked by the index. According to this year’s index results, 58% of this gap has been closed so far. The gap has seen marginal improvement since the 2020 edition of the report, and as a result, we estimate that it will take another 267.6 years to close.
– Gender gaps in Educational Attainment and Health and Survival are nearly closed. In Educational Attainment, 95% of this gender gap has been closed globally, with 37 countries already attaining gender parity. However, the ‘last mile’ of progress is proceeding slowly. The index estimates that it will take another 14.2 years to close this gap on its current trajectory completely.
In Health and Survival, 96% of this gender gap has been closed, registering a marginal decline since last year (not due to COVID-19), and the time to close this gap remains undefined. For both education and health, while progress is higher than economy and politics in the global data, there are important future implications of disruptions due to the pandemic and continued variations in quality across income, geography, race, and ethnicity.
India-Specific Findings:
India had slipped 28 spots to rank 140 out of the 156 countries covered. The pandemic causing a disproportionate impact on women jeopardizes rolling back the little progress made in the last decades-forcing more women to drop off the workforce and leaving them vulnerable to domestic violence.
India’s poor performance on the Global Gender Gap report card hints at a serious wake-up call and learning lessons from the Nordic region for the Government and policy makers.
Within the 156 countries covered, women hold only 26 percent of Parliamentary seats and 22 percent of Ministerial positions. India, in some ways, reflects this widening gap, where the number of Ministers declined from 23.1 percent in 2019 to 9.1 percent in 2021. The number of women in Parliament stands low at 14.4 percent. In India, the gender gap has widened to 62.5 %, down from 66.8% the previous year.
It is mainly due to women’s inadequate representation in politics, technical and leadership roles, a decrease in women’s labor force participation rate, poor healthcare, lagging female to male literacy ratio, and income inequality.
The gap is the widest on the political empowerment dimension, with economic participation and opportunity being next in line. However, the gap on educational attainment and health and survival has been practically bridged.
India is the third-worst performer among South Asian countries, with Pakistan and Afghanistan trailing and Bangladesh being at the top. The report states that the country fared the worst in political empowerment, regressing from 23.9% to 9.1%.
Its ranking on the health and survival dimension is among the five worst performers. The economic participation and opportunity gap saw a decline of 3% compared to 2020, while India’s educational attainment front is in the 114th position.
India has deteriorated to 51st place from 18th place in 2020 on political empowerment. Still, it has slipped to 155th position from 150th position in 2020 on health and survival, 151st place in economic participation and opportunity from 149th place, and 114th place for educational attainment from 112th.
In 2020 reports, among the 153 countries studied, India is the only country where the economic gender gap of 64.6% is larger than the political gender gap of 58.9%. In 2021 report, among the 156 countries, the economic gender gap of India is 67.4%, 3.8% gender gap in education, 6.3% gap in health and survival, and 72.4% gender gap in political empowerment. In health and survival, the gender gap of the sex ratio at birth is above 9.1%, and healthy life expectancy is almost the same.
Discrimination against women has also been reflected in Health and Survival subindex statistics. With 93.7% of this gap closed to date, India ranks among the bottom five countries in this subindex. The wide sex ratio at birth gaps is due to the high incidence of gender-based sex-selective practices. Besides, more than one in four women has faced intimate violence in her lifetime.The gender gap in the literacy rate is above 20.1%.
Yet, gender gaps persist in literacy : one-third of women are illiterate (34.2%) than 17.6% of men. In political empowerment, globally, women in Parliament is at 128th position and gender gap of 83.2%, and 90% gap in a Ministerial position. The gap in wages equality for similar work is above 51.8%. On health and survival, four large countries Pakistan, India, Vietnam, and China, fare poorly, with millions of women there not getting the same access to health as men.
The pandemic has only slowed down in its tracks the progress India was making towards achieving gender parity. The country urgently needs to focus on “health and survival,” which points towards a skewed sex ratio because of the high incidence of gender-based sex-selective practices and women’s economic participation. Women’s labour force participation rate and the share of women in technical roles declined in 2020, reducing the estimated earned income of women, one-fifth of men.
Learning from the Nordic region, noteworthy participation of women in politics, institutions, and public life is the catalyst for transformational change. Women need to be equal participants in the labour force to pioneer the societal changes the world needs in this integral period of transition.
Every effort must be directed towards achieving gender parallelism by facilitating women in leadership and decision-making positions. Social protection programmes should be gender-responsive and account for the differential needs of women and girls. Research and scientific literature also provide unequivocal evidence that countries led by women are dealing with the pandemic more effectively than many others.
Gendered inequality, thereby, is a global concern. India should focus on targeted policies and earmarked public and private investments in care and equalized access. Women are not ready to wait for another century for equality. It’s time India accelerates its efforts and fight for an inclusive, equal, global recovery.
India will not fully develop unless both women and men are equally supported to reach their full potential. There are risks, violations, and vulnerabilities women face just because they are women. Most of these risks are directly linked to women’s economic, political, social, and cultural disadvantages in their daily lives. It becomes acute during crises and disasters.
With the prevalence of gender discrimination, and social norms and practices, women become exposed to the possibility of child marriage, teenage pregnancy, child domestic work, poor education and health, sexual abuse, exploitation, and violence. Many of these manifestations will not change unless women are valued more.
[wptelegram-join-channel link=”https://t.me/s/upsctree” text=”Join @upsctree on Telegram”]2021 WEF Global Gender Gap report, which confirmed its 2016 finding of a decline in worldwide progress towards gender parity.
Over 2.8 billion women are legally restricted from having the same choice of jobs as men. As many as 104 countries still have laws preventing women from working in specific jobs, 59 countries have no laws on sexual harassment in the workplace, and it is astonishing that a handful of countries still allow husbands to legally stop their wives from working.
Globally, women’s participation in the labour force is estimated at 63% (as against 94% of men who participate), but India’s is at a dismal 25% or so currently. Most women are in informal and vulnerable employment—domestic help, agriculture, etc—and are always paid less than men.
Recent reports from Assam suggest that women workers in plantations are paid much less than men and never promoted to supervisory roles. The gender wage gap is about 24% globally, and women have lost far more jobs than men during lockdowns.
The problem of gender disparity is compounded by hurdles put up by governments, society and businesses: unequal access to social security schemes, banking services, education, digital services and so on, even as a glass ceiling has kept leadership roles out of women’s reach.
Yes, many governments and businesses had been working on parity before the pandemic struck. But the global gender gap, defined by differences reflected in the social, political, intellectual, cultural and economic attainments or attitudes of men and women, will not narrow in the near future without all major stakeholders working together on a clear agenda—that of economic growth by inclusion.
The WEF report estimates 135 years to close the gap at our current rate of progress based on four pillars: educational attainment, health, economic participation and political empowerment.
India has slipped from rank 112 to 140 in a single year, confirming how hard women were hit by the pandemic. Pakistan and Afghanistan are the only two Asian countries that fared worse.
Here are a few things we must do:
One, frame policies for equal-opportunity employment. Use technology and artificial intelligence to eliminate biases of gender, caste, etc, and select candidates at all levels on merit. Numerous surveys indicate that women in general have a better chance of landing jobs if their gender is not known to recruiters.
Two, foster a culture of gender sensitivity. Take a review of current policies and move from gender-neutral to gender-sensitive. Encourage and insist on diversity and inclusion at all levels, and promote more women internally to leadership roles. Demolish silos to let women grab potential opportunities in hitherto male-dominant roles. Work-from-home has taught us how efficiently women can manage flex-timings and productivity.
Three, deploy corporate social responsibility (CSR) funds for the education and skilling of women and girls at the bottom of the pyramid. CSR allocations to toilet building, the PM-Cares fund and firms’ own trusts could be re-channelled for this.
Four, get more women into research and development (R&D) roles. A study of over 4,000 companies found that more women in R&D jobs resulted in radical innovation. It appears women score far higher than men in championing change. If you seek growth from affordable products and services for low-income groups, women often have the best ideas.
Five, break barriers to allow progress. Cultural and structural issues must be fixed. Unconscious biases and discrimination are rampant even in highly-esteemed organizations. Establish fair and transparent human resource policies.
Six, get involved in local communities to engage them. As Michael Porter said, it is not possible for businesses to sustain long-term shareholder value without ensuring the welfare of the communities they exist in. It is in the best interest of enterprises to engage with local communities to understand and work towards lowering cultural and other barriers in society. It will also help connect with potential customers, employees and special interest groups driving the gender-equity agenda and achieve better diversity.