New Delhi: The sedition charge slapped against Jawaharlal Nehru University Students Union (JNUSU) president Kanhaiya Kumar is not worth the paper it is written on. According to legal experts, it is “not tenable” and will “not stand scrutiny of the law”. They say even if what is supposed to have happened at the public meeting on 9 February evening on the varsity’s campus is completely true, it does not “even come close to establishing an offence”.
Experts say said in the Kedar Nath Singh’s versus State of Bihar case, a constitution bench of the Supreme Court on 20 January, 1962 made it clear that the alleged seditious speech and expression may be punished only if it is an “incitement to violence or public disorder”.
Subsequent cases, they add, have further clarified the meaning of this term. In Indra Das versus State of Assam and Arup Bhuyan versus State of Assam, the apex court unambiguously stated on 10 February, 2011 and 3 February, 2011 respectively that only speech that amounts to “incitement to imminent lawless action” can be criminalised.
In Shreya Singhal versus Union of India, the Supreme Court in its famous 66A judgment on 24 March, 2015, drew a clear distinction between “advocacy” and “incitement”, stating that only the latter could be punished.
“Therefore, advocating revolution, or advocating even violent overthrow of the State, does not amount to sedition, unless there is incitement to violence, and more importantly, the incitement is to ‘imminent’ violence,” Bengaluru-based legal researcher and lawyer Lawrence Liang told Firstpost, citing the instance of Balwant Singh versus State of Punjab, where the superior court of the country overturned the convictions for ‘sedition’ (124A, IPC) and ‘promoting enmity between different groups on grounds of religion, race etc.’ (153A, IPC).
The court had acquitted the persons who had raised slogans — "Khalistan Zindabaad, Raj Karega Khalsa and Hinduan Nun Punjab Chon Kadh Ke Chhadange, Hun Mauka Aya Hai Raj Kayam Karan Da" — on the evening of 31 October, 1984, a few hours after former prime minister Indira Gandhi’s assassination, outside a cinema hall in a market frequented by Hindus and Sikhs in Chandigarh.
“Thus, words and speech can be criminalised and punished only in situations where it is being used to incite mobs or crowds to violent action. Mere words and phrases by themselves, no matter how distasteful, do not amount to a criminal offence unless this condition is met,” said Liang, who is known for his legal campaigns on issues of public concern.
VN Khare, former Chief Justice of India, argues that sedition charge should not be slapped unless there is strong evidence against an accused to prove the guilt beyond a shadow of doubt. “The state has to prove that the person is guilty. If the evidence brought on record is weak or insufficient, the case will fall flat. Since the nature of the offence and its punishment both are extremely serious, hence the court remains extra careful. That is why the evidence has to be clinching against the accused,” he added.
Asked about his opinion on invoking the charge on students, he opined it should not been done on the “instructions of political masters, but on merit”.
Justice BS Khan, former Chief Justice of Jammu and Kashmir High Court, also shares the same views. “The sedition charge does not fit in this case and it falls flat in the court because merely raising slogans, even against the country or the state, cannot amount to sedition unless followed by any act or incitement of violence or public disorder,” he said, adding that there have been several judgements of the apex court on the issue.
Speaking to Firstpost, PDT Achary, former secretary general of 14th and 15th Lok Sabha and Lok Sabha Secretariat, described the sedition law as “unconstitutional”. “Sedition has no place in a democracy. Section 124A was in the original IPC (Indian Penal Code) draft of 1861. It was an afterthought by the colonial rulers to crush Indian subjects,” he said.
Although veteran lawyer KC Mittal feels it very difficult and not proper to predict whether the sedition charge is made out or not because it will ultimately depend on the evidence that comes on record, but the JNU episode smacks of some conspiracy to put the prestigious institution into a conflict and malign its reputation.
“It has been done deliberately. The permission was granted to Democratic Students Front (DSF) for a cultural event. Why was that permission first granted and then withdrawn in the last minute? The JNUSU was nowhere in the picture, neither the permission was sought. Then how would it come into the picture? Why the sloganeering was allowed to continue? When the permission was cancelled why did not the vice chancellor or the proctor take adequate care? The video footage of the incident is available. Why have the persons who raised the slogans not identified and arrested so far? Who are they? They should have been taken into custody then and there. Had they been taken action time, the situation could have been avoided,” he said.
Such a programme, according to Mittal, was also organised in 2015 without this kind of sloganeering. “Then why this kind of situation suddenly arose in 2016?” he asks, adding that “anyone who raised incendiary slogans should be booked, prosecuted and punished. There should be no concession and compromise on this at any cost. Nobody can tolerate slogans like Pakistan Zindabad”.
Senior Supreme Court Advocate Aishwarya Bhati believes that it is a question of perspective whether such a serious charge is actually made out because sedition also means punishable by death. “But the fact also is that these kinds of protests question the very democratic processes and constitutional practices of our country. Questioning the hanging of Afzal Guru and organising a protest against it when the case was already considered by the apex court of the country in terms of the constitutional scheme and passed through the entire scrutiny of the process right up to the President is like questioning the processes of the country,” she said.
But at the same time she says criminal law “can never be applied vicariously”. “The basic language of the sedition law is waging, attempting or abetting war against the government. It will be applied to the person who is doing these. If the JNUSU president has not done it himself, he cannot be booked unless there is a case of abetment against him. There are three things punishable in the act: (a) the act itself, (b) attempt to the act and (c) abetment to the act. If the person falls into any of these three categories, he can be booked,” she added.
Asked why this colonial era law, which is being used by different political parties to curb the voice of dissent, she says “Yes, it is a British-era law but so is our entire IPC, which is from 1860”.
The sedition charge prescribes a jail sentence from three years to life imprisonment.