Why the draconian sedition law must go

Faizan Mustafa in The Indian Express

Whether people in a free country committed to the liberty of thought and freedom of expression can be criminally punished for expressing their opinion about the government is the moot question. Does the government have the right to affection? What is the origin of the law of sedition in India? How did the framers of the Constitution deal with it? How have our courts interpreted this sedition provision?

In the last seven years, an extreme nationalist ideology actively supported by pliant journalists repeatedly used aggressive nationalism to suppress dissent, mock liberals and civil libertarians and several governments routinely invoked Section 124-A that penalises sedition. An 84-year-old Jesuit priest, Stan Swamy, and 21-year-old Disha Ravi were not spared. A number of CAA (Citizenship Amendment Act) protesters are facing sedition charges. NCRB data shows that between 2016 to 2019, there has been a whopping 160 per cent increase in the filing of sedition charges with a conviction rate of just 3.3 per cent. Of the 96 people charged in 2019, only two could be convicted.

On Thursday, a two-judge bench of Justices U U Lalit and Vineet Saran observed that “every journalist is entitled to the protection under the Kedar Nath judgment (1962)” on the petition filed by journalist Vinod Dua. Dua had sought the quashing of an FIR against him filed by a BJP leader of Himachal Pradesh. The bench took eight months to pronounce its order as arguments had concluded on October 6, 2020.

Justice Lalit in his 117-page historic judgment demolished all the arguments against the wider application of the sedition provision. The court entertained Dua’s writ petition under Article 32 as the Himachal Pradesh police failed to complete the investigation and submit its report under Section 173 of the Code of Criminal Procedure. The Court found that statements attributed to Dua that the Prime Minister had used deaths and terror threats to garner votes were indeed not made in the talk show on March 30, 2020.

The Court relied on the Kedar Nath judgement in which the apex court had held that a citizen has the right to say or write whatever he likes about the government or its measures by way of criticism so long as he does not incite people to violence against the government or with the intention of creating public disorder. Section 124A read along with explanations is not attracted without such an allusion to violence. The Court concluded that statements made by Dua about masks, ventilators, migrant workers, etc. were not seditious and were mere disapprobation so that Covid management improves. The same were certainly not made to incite people to indulge in violence or create any disorder. The Court in Para 44 concluded that Dua’s prosecution would be unjust and would be violative of the freedom of speech.

Governments of opposition parties, including the Congress, have also indiscriminately invoked sedition charges against intellectuals, writers, dissenters and protesters. In fact, it was a Congress government that had made sedition a cognisable offence in 1974. Arundhati Roy, Aseem Trivedi, Binayak Sen and even those who opposed the nuclear plant in Kudankulam, Tamil Nadu and the expansion of the Sterlite plant in Thoothukudi were booked under Sec 124-A.

Section 124-A was not a part of the original Indian Penal Code drafted by Lord Macaulay and treason was confined just to levying war. It was Sir James Fitzjames Stephen who subsequently got it inserted in 1870 in response to the Wahabi movement that had asked Muslims to initiate jihad against the colonial regime. While introducing the Bill, he argued that Wahabis are going from village to village and preaching that it was the sacred religious duty of Muslims to wage a war against British rule. Stephen himself was interested in having provisions similar to the UK Treason Felony Act 1848 because of his strong agreement with the Lockean contractual notion of allegiance to the king and deference to the state.

Mahatma Gandhi, during his trial in 1922, termed Section 124-A as the “prince among the political sections of IPC designed to suppress liberty of the citizen”. He went on to tell the judge that “affection cannot be manufactured or regulated by law. If one has no affection for a person or system, one should be free to give fullest expression to his disaffection so long as it does not contemplate, promote or incite to violence”. Though Justice Maurice Gwyer in Niharendu Dutt Majumdar (1942) had narrowed the provision and held that public disorder was the essence of the offence, the Privy Council in Sadashiv Narayan Bhalerao (1947) relying on Explanation 1 observed public disorder was not necessary to complete the offence.

Strangely, the Fundamental Rights Sub-Committee (April 29, 1947) headed by Sardar Patel included sedition as a legitimate ground to restrict free speech. When Patel was criticised by other members of the Constituent Assembly, he dropped it. Constitutionally, Section 124A being a pre-Constitution law that is inconsistent with Article 19(1)(a), on the commencement of the Constitution, had become void. In fact, it was struck down by the Punjab High Court in Tara Singh Gopi Chand (1951).

Justice Lalit ought to have clarified the distinction between “government established by law” and “persons for the time being engaged in carrying on the administration” as the visible symbol of the state made by the Court in Kedar Nath. The very existence of the state will be in jeopardy if the government established by law is subverted. This observation did require some clarification by the Court as the state and government are not the same. Governments come and go but the Indian state is a permanent entity. Criticism of ministers cannot be equated with the creation of disaffection against the State. No government, as Mahatma Gandhi told Judge R S Broomfield, has a right to love and affection. India of the 21st century should not think like Stephen who was too worried about Macaulay’s code not penalising criticism of the government, however severe, hostile, unfair or disingenuous. We must understand that no slogan by itself, howsoever provocative such as “Khalistan Zindabad” can be legitimately termed as seditious as per the Balwant Singh (1995) judgment of the Supreme Court.

The Congress’s loss in the 2019 general election is attributed to, among other reasons, its manifesto’s promise that it would remove the sedition provision if voted to office. In 2018, the Law Commission had recommended that the sedition law should not be used to curb free speech. Let the criminal law revision committee working under the Ministry of Home Affairs make the bold recommendation of dropping the draconian law. A political consensus needs to be forged on this issue.

Have you seen Groupthink in action?

Tim Harford in The FT 

In his acid parliamentary testimony last week, Dominic Cummings, the prime minister’s former chief adviser, blamed a lot of different people and things for the UK’s failure to fight Covid-19 — including “groupthink”. 

Groupthink is unlikely to fight back. It already has a terrible reputation, not helped by its Orwellian ring, and the term is used so often that I begin to fear that we have groupthink about groupthink. 

So let’s step back. Groupthink was made famous in a 1972 book by psychologist Irving Janis. He was fascinated by the Bay of Pigs fiasco in 1961, in which a group of perfectly intelligent people in John F Kennedy’s administration made a series of perfectly ridiculous decisions to support a botched coup in Cuba. How had that happened? How can groups of smart people do such stupid things? 

An illuminating metaphor from Scott Page, author of The Difference, a book about the power of diversity, is that of the cognitive toolbox. A good toolbox is not the same thing as a toolbox full of good tools: two dozen top-quality hammers will not do the job. Instead, what’s needed is variety: a hammer, pliers, a saw, a choice of screwdrivers and more. 

This is obvious enough and, in principle, it should be obvious for decision-making too: a group needs a range of ideas, skills, experience and perspectives. Yet when you put three hammers on a hiring committee, they are likely to hire another hammer. This “homophily” — hanging out with people like ourselves — is the original sin of group decision-making, and there is no mystery as to how it happens. 

But things get worse. One problem, investigated by Cass Sunstein and Reid Hastie in their book Wiser, is that groups intensify existing biases. One study looked at group discussions about then-controversial topics (climate change, same-sex marriage, affirmative action) by groups in left-leaning Boulder, Colorado, and in right-leaning Colorado Springs. 

Each group contained six individuals with a range of views, but after discussing those views with each other, the Boulder groups bunched sharply to the left and the Colorado Springs groups bunched similarly to the right, becoming both more extreme and more uniform within the group. In some cases, the emergent view of the group was more extreme than the prior view of any single member. 

One reason for this is that when surrounded with fellow travellers, people became more confident in their own views. They felt reassured by the support of others. 

Meanwhile, people with contrary views tended to stay silent. Few people enjoy being publicly outnumbered. As a result, a false consensus emerged, with potential dissenters censoring themselves and the rest of the group gaining a misplaced sense of unanimity. 

The Colorado experiments studied polarisation but this is not just a problem of polarisation. Groups tend to seek common ground on any subject from politics to the weather, a fact revealed by “hidden profile” psychology experiments. In such experiments, groups are given a task (for example, to choose the best candidate for a job) and each member of the group is given different pieces of information. 

One might hope that each individual would share everything they knew, but instead what tends to happen is that people focus, redundantly, on what everybody already knows, rather than unearthing facts known to only one individual. The result is a decision-making disaster. 

These “hidden profile” studies point to the heart of the problem: group discussions aren’t just about sharing information and making wise decisions. They are about cohesion — or, at least, finding common ground to chat about. 

Reading Charlan Nemeth’s No! The Power of Disagreement In A World That Wants To Get Along, one theme is that while dissent leads to better, more robust decisions, it also leads to discomfort and even distress. Disagreement is valuable but agreement feels so much more comfortable. 

There is no shortage of solutions to the problem of groupthink, but to list them is to understand why they are often overlooked. The first and simplest is to embrace decision-making processes that require disagreement: appoint a “devil’s advocate” whose job is to be a contrarian, or practise “red-teaming”, with an internal group whose task is to play the role of hostile actors (hackers, invaders or simply critics) and to find vulnerabilities. The evidence suggests that red-teaming works better than having a devil’s advocate, perhaps because dissent needs strength in numbers. 

A more fundamental reform is to ensure that there is a real diversity of skills, experience and perspectives in the room: the screwdrivers and the saws as well as the hammers. This seems to be murderously hard. 

When it comes to social interaction, the aphorism is wrong: opposites do not attract. We unconsciously surround ourselves with like-minded people. 

Indeed, the process is not always unconscious. Boris Johnson’s cabinet could have contained Greg Clark and Jeremy Hunt, the two senior Conservative backbenchers who chair the committees to which Dominic Cummings gave his evidence about groupthink. But it does not. Why? Because they disagree with him too often. 

The right groups, with the right processes, can make excellent decisions. But most of us don’t join groups to make better decisions. We join them because we want to belong. Groupthink persists because groupthink feels good.

Why executives should always listen to unreasonable activists

Andrew Edgecliffe-Johnson in The FT

When Christabel Pankhurst argued the case for women’s suffrage to members of the London Stock Exchange in 1909, the Financial Times reported that her address excited “a few remonstrative ‘Oh, ohs!’ [but] was punctuated throughout by genuine applause, as well as a good deal of merriment at her humorous sallies”. 

After three years of failing to convert such applause into voting rights, however, the movement led by Pankhurst and her mother Emmeline adopted less amusing tactics, and the business pages’ view of it darkened. Arson attacks on post boxes in the City of London in 1912 left the FT fulminating about the need for “drastic measures . . . to protect the community as a whole from the mischievous intentions of a small and insubordinate section”. 

Why dredge this history up now? Because today’s business leaders are being confronted by a new generation of agitators whose aims they consider unrealistic, whose methods they consider unreasonable but whose message will probably prove worth heeding in the long run.  

This year’s annual meeting season has seen protests over executive pay at companies from AstraZeneca to GE. Nuns have harangued Amazon over its facial recognition technology and taken on Boeing over its lobbying. Diversity advocates have castigated boards for moving too slowly to achieve racial and — a century after the suffragettes — gender equality.  

No subject has attracted more militancy of late, however, than companies’ contributions to climate change. And no clash has defined this shareholder spring more clearly than the revolt at ExxonMobil, in which Engine No 1, an activist investor with a minute stake and an aversion to fossil fuels, fought its way on to the $250bn oil major’s board.  

“This is like the shot heard around the world,” says Robert Eccles, a Saïd Business School professor. Other companies and investors are realising that “if this little hedge fund can do this to ExxonMobil then, oh, things are different”.  

Shareholders’ views of Big Oil were already shifting faster than Exxon had changed its business model, Eccles notes, but like Pankhurst’s troublemakers: “You needed the spark: they blew up the mailbox.”  

Before Engine No 1, there was the civil disobedience of Extinction Rebellion, which has dumped fake coal outside Lloyd’s of London and blockaded News Corp printing sites in the past year. Environmental campaigners had targeted the offices of JPMorgan Chase in New York and BlackRock in Paris. And Greta Thunberg had shown up at the World Economic Forum last year and rubbished Davos-goers’ tree-planting incrementalism.  

Such zealous tactics seem guaranteed to generate more irritation than applause. As Eccles puts it, “here are people who . . . don’t hold any of the cards. Unless you’re breaking the rules or using the rules really aggressively, as Engine No 1 did, you can’t get attention.” 

That makes them easy to dismiss. People on both extremes of the fossil fuels debate “are a little nuts”, Warren Buffett told Berkshire Hathaway’s annual meeting last month.  

Maybe, but from street style to fashions on Wall Street, new ideas tend to start on the fringes. The examples of the Pankhursts and successive campaigners for causes ranging from civil rights to gay rights suggest that the most powerful ideas become mainstream in the end.  

That rarely happens overnight: it took until 1928 for British women to gain electoral equality with men. But today’s irritants can serve as harbingers of tomorrow’s consensus.  

That should make them valuable to any company wanting to understand the risks and opportunities in the years ahead. Every CEO knows that society’s expectations of business are constantly changing, but few have worked out that their harshest critics might help them position themselves for those shifts. 

Society’s expectations still matter most to boards when expressed through their shareholders’ votes, and the continued growth of socially conscious investing suggests that the agendas of provocateurs and portfolio managers are converging.  

This week, for example, a UBS survey of rich investors found 90 per cent of them claimed that the pandemic had made them more determined to align their investments with their values.  

That report again underscored how younger capitalists are driving this process: almost 80 per cent of investors under 50 said Covid-19 had made them want to make a bigger difference in the world, compared with just half of the over-50s. It is worth executives asking themselves which of those demographics they are spending more time with.  

Exxon’s unreasonable activists showed it that the world had changed and it had not. The question for other companies is whether they can learn such lessons less painfully.  

Does this mean that boards should bend to every crank who berates them at an annual meeting? No, but companies should avoid dismissing every critic as a crank, and study the agitators for early warning signs of what may become groundswells.  

Executives love to talk about innovation and “first-mover advantage”. If they are serious, they should spend more time thinking about where today’s fringes suggest tomorrow’s mainstream will be. Sometimes a small and insubordinate section points the way for the community as a whole. 

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