‘Dissenting Speech Always Seen As Symptom Of Conspiracy’: Akhil Gogoi Moves Supreme Court Challenging Sedition and Similar Offences

The petitioner – an independent legislator representing Assam’s Sibsagar in the state legislative assembly and president of the Raijor Dal – has had extensive run-ins with the law, especially because of his involvement in anti-government protests such as those against the National Register of Citizens and the Citizenship (Amendment) Bill (later Citizenship (Amendment) Act). When the CAA-NRC protests were at their peak, in December of 2019, Gogoi was arrested by the police. Not only was he booked under Sections 120B (criminal conspiracy), 124A (sedition), 153A (promoting enmity between different communities), and 153B (making imputations and assertions prejudicial to national integration) of the Indian Penal Code, but various provisions of the Unlawful Activities (Prevention) Act, 1967 were also pressed into service.

The allegations against the Sibsagar MLA, according to his petition, are in the nature of ‘speech offences’. “None alleges that the petitioner ever indulged in violence of any kind,” the petition states, “The prosecution’s worst case against the petitioner is that he conspired to mobilize masses against the government of the day (in 2008 or 2009) and also criticised government policies and the Citizenship (Amendment) Bill in 2019.”

The petitioner also claims that he is an object of prejudice because his ‘dissenting speech’ critical of the Citizenship (Amendment) Bill or Citizenship (Amendment) Act is “always seen as a symptom of some deep-rooted conspiracy”. “Similarly,” the petition states, “Misdemeanours, or even IPC offences are elevated to the level of ‘terrorist activities’ as defined under the UAPA.” It is further emphasised that mere calls for bandhs are equated with economic blockades that intend to systemically destroy the economy, “since it has been suggested, and it plays on the back of the mind while judging the speeches, that there may have been some larger conspiracy”.

“The petitioner is not accused of having indulged in any violence,” it is pointed out, “Rather, the allegation is as broad and as ambiguous as can be: the charge sheet alleges that he organised protests with intent to threaten the unity, integrity, security, economic security, and sovereignty of India.” Gogoi has added:

“The charge sheet states that the protests were organised with the intent to incite hatred and disaffection towards the government, by using the CAA protests as a mere façade. However, the charge sheet offers no reasoning or causal link between the fact of unruly protests against certain government actions or policies, and the charge that such protests were organised not in pursuance of citizens’ democratic right, or in genuine opposition to those policies, but out of an evil intention to threaten the unity, integrity and security of the country. There is no material in the charge sheet to substantiate the presumption that the protests had an ulterior and mala fide design, a criminal conspiracy to threaten the country. On the contrary, it is quite clear that protests were organized as part of collective social action. They were an end in themselves. It may also be borne in mind that the petitioner is a political figure and represents Sibsagar constituency in the Assam Legislative Assembly, being an independent legislator.”

Pointing out that the main thrust of the allegation against Gogoi is that through his speeches and public mobilisation, he purportedly sought to bring about disaffection and disrupt public tranquility, besides threatening national integrity and security, the petition insists that the nature of these offences is essentially contained within the logic of the offence of sedition:

“The nature of these offences is essentially contained within the logic of the offence of sedition. In some cases the allegations pertain directly to the offence defined under Section 124-A of the Indian Penal Code, while in other cases the logic and ingredients of Section 124-A is transplanted into other sections that have been invoked against the petitioner. However, the gamut of allegations against speeches and political actions done by him are contained in the offence of sedition under Section 124-A, IPC.”

Relying on a 2022 order, by which the Supreme Court directed the 152-year-old sedition law under Section 124A of the Indian Penal Code to be effectively kept in abeyance till the union government reconsidered the provision, the petition argues that not just the offence of sedition, but also the logic – the ingredients that made up the provision – was also vulnerable to judicial review:

“The offence of sedition, as also the logic of the offence of sedition, is vulnerable to judicial review. When the logic of sedition is transplanted into other sections that also form a constitutional breach in the same manner is subject to the same constitutional safeguards. The petitioner is accused of ‘speech offences’ which are in the nature of political acts of critique, covered squarely within Section 124-A of the Indian Penal Code…By way of the instant petition, the petitioner, who is facing prosecution under Section 124A of the IPC, amongst other similar provisions, essentially for having engaged in protests against the enactment of the Citizenship (Amendment) Act, 2019, seeks a stay of the said proceeding.”

The petition has been filed through Advocate-on-Record Ivo Manuel Simon D'costa. 

Background

Peasant leader and MLA Akhil Gogoi was arrested in December 2019 during the protests against the Citizenship Amendment Act and booked under various sections of the Indian Penal Code, 1860 as well as the Unlawful Activities (Prevention) Act, 1967.

Subsequently, even while incarcerated, he contested and won the assembly elections in 2021, defeating Bharatiya Janata Party’s Surabhi Rajkonwari. He was subsequently released after spending one and a half years in detention for his alleged role in the anti-CAA agitation, when a special NIA court discharged him, and three other persons, on the ground of the non-availability of material on record on the basis of which charges could be framed.

However, earlier in February, the high court set aside the order of the special court when it was challenged by the federal agency. While remanding the matter back to the court for fresh charge-hearing against all the four accused, a division bench of Justices Suman Shyam and Malasari Nandi observed, “The impugned judgment has the trappings of an order of acquittal rather than an order of discharge. As such, the approach of the special judge, NIA, in our considered opinion, was clearly erroneous in the eye of law, thus having a vitiating effect on the impugned judgment.”

Against this judgement, the legislator sought an appeal before the top court, arguing, inter alia, that the high court failed to even examine whether a prima facie case was made out in the matter before overturning the special court’s verdict. Nothing in his conduct could be traced back to an alleged controversy to destroy the national integrity or any terrorist activity, the Raijor Dal president has asserted. The MLA has also been critical of the BJP-led government ‘misusing’ the National Investigation Agency and the anti-terror statute to muzzle dissent.

After reserving its verdict in March, a Supreme Court bench comprising Justices V Ramasubramanian and Pankaj Mithal in April confirmed ‘in all aspects’ the Gauhati High Court’s decision to set aside trial court’s order discharging the activist-turned-politician.

Case Title

Akhil Gogoi v. Union of India | Writ Petition (Civil) No. 672 of 2023