Jawaharlal Nehru University (JNU), where I spent a decade studying and researching history, is in the news all over again. I remember, in those days, a leading English language national daily would advertise itself as being an indispensable part of the breakfast served at JNU every morning. Today efforts are being made to tarnish the legacy and the image of this reputable university whose graduates are part of the rank and file of many a political party and also occupy the upper echelons of the public administration. While some have called for changing its name while others have called for its shut down. More specifically, a handful of students have been arrested by the Delhi Police on charges of 'sedition'. The Police are reported to be conducting searches across the campus entering student's hostels in what is primarily a residential University. The purpose of this piece is not to conduct an investigation or a trial into the events that transpired on 09 February, 2016 and the reactions thereafter - that is the job of the police and the courts, which unfortunately, some segments of the media have usurped, pronouncing their opinion on the supposed 'guilt' of the accused even before the law takes it own course. The crucial questions which many concerned citizens and segments of the more restrained media are asking is - whether the reaction to the incidents that occurred on the evening of the 9th of February is disproportionate and whether students carrying out a peaceful procession raising slogans that did not conform to the 'politico-ideological beliefs of a prevalent variety' should be treated as 'criminals' to be prosecuted for 'sedition' and 'anti-national' activities. Frankly, a country that rightfully takes immense pride in its six-decade long democratic tradition must repeal all laws that criminalise free speech and expression exceeding the reasonable restrictions imposed on that fundamental right in Article 19(2) of the Constitution.

 

The media reported that the Delhi Police registered a First Information Report (FIR) at the Vasant Kunj North Police Station on 11 February- a day after the incident. The Delhi Police has a dedicated page on its official website for the proactive disclosure of FIRs registered under its jurisdiction. This transparency measure was initiated under the directions of the Hon'ble Delhi High Court in 2010 in the matter of Court on its own Motion through Mr. Ajay Chaudhary vs State [2011 CriLJ 1347]. However the FIR relating to the incidents at JNU could not be located on this website despite our best efforts. Under the regime of transparency established by The Right to Information Act, 2005 (RTI Act) media reports are the only source of information regarding the contents of the FIR registered by the Delhi Police.

 

 

Second, the Delhi Police is not complying with the law of the land in another manner. In 2009 Parliament amended the arrest-related provisions of the Code of Criminal Procedure, 1973 (CrPC) requiring every State Police Headquarters to prepare a database of persons arrested by the police and make it accessible to the public. Section 41C of the CrPC which became operational in 2010 makes it mandatory for the Delhi Police to create a database containing details such as the name and contact details of every person arrested, the name and designation of the police officer making the arrest, the nature of offences for which the arrest is being made and publicise them for the reference of the people. This transparency measure gives statutory cover to the directions issued by the Hon'ble Supreme Court of India in the matter of D. K. Basu vs. State of West Bengal [AIR 1997 SC 610] to curb the abuse of the powers given to the police to take away the liberties of an individual by arresting him/her. However, the Delhi Police has not created and publicised such a database of arrestees till date, nor has it reported the arrest of the students at JNU through its press releases. Somehow respect for and obedience to the law seems to be the responsibility of ordinary citizens only while law enforcement agencies can go scot free.

 

 

Third, Section 124A of the Indian Penal Code, 1860 (IPC) which describes actions that are to be treated as 'sedition' prescribes two kinds of punishment - life imprisonment with or without fine or imprisonment up to 3 years with or without fine. What punishment may be given under which circumstances is for the courts to decide on the basis of the facts and circumstances of each case. It is not clear whether the Delhi Police believes that the accused in the JNU case will attract the life term or the shorter prison term of 3 years. This is important because under Section 41(1)(b) of the CrPC an individual may be arrested for an offence which entails punishment of less than 7 years without a warrant from the Magistrate, only if the police officer has reason to believe that such person has committed the offence and that such arrest is necessary to:

 

i) prevent such person from committing further offence; or

 

ii) for proper investigation of the offence; or

 

(iii) to prevent such person from destroying or tampering with the evidence; or

 

(iv) to prevent such person from offering inducements to witnesses of the crime in order to dissuade them from deposing before the courts; or

 

v) for ensuring such person's presence before a court whenever required.

 

 

Several experts have commented through the print and electronic media as to whether the alleged actions for which the students of JNU have been arrested amount to sedition. As said before, this piece is not about passing a judgement on the facts of the present case about which there is very little information coming from official sources. The purpose of this piece is provide the reader with a snapshot view of how Courts have ruled on charges of 'sedition' and under what kinds of circumstances. The development of the law on 'sedition' under the British Raj in India is well portrayed in a 2011 study published by Alternative Law Forum, Bengaluru. so I am not going into those details. 

 

Being a law brought in towards the end of the 19th century, by the British rulers to curb down dissent and all calls for freedom and civil and other kinds of disobedience towards the colonial government, several notable freedom fighters were punished under this law for doing exactly the same. The list of such persons includes notables such as, Lokamanya Bal Gangadhar Tilak (who declared "Swaraj is my birth right"), Ms. Annie Beasant (who stared the Home Rule League), Mahatma Gandhi, C V Rajgopalachari (1st Indian Governor General of India) and Vinayak Damodar Savarkar (notable freedom fighter who was incarcerated in the cellular jail in the Andamans). The list is too long and includes several prominent leaders of the freedom struggle who later became members of the Constituent Assembly which drafted the Constitution. They resolutely decidied against including 'sedition' as a restriction on free speech and expression in the fundamental rights chapter. 

 

An examination of the jurisprudence on what constitutes an act of 'sedition' and which actions do not so qualify despite the State making such claims reveals that there are several strict tests and standards for identifying the offence of 'sedition'. Given below is a snapshot view of the manner in which the High Courts and the Supreme Court have dealt with the issue in appeal.

 

Kamal Krishna Sircar vs Emperor [AIR 1935 Cal 636]

In 1934, one Mr. Kamal Krishna Sircar in Bengal was convicted on charges of sedition by a trial court for making a speech and tabling a resolution, at an event organised by the Bengal Youth League, condemning orders issued by the colonial Government banning the Communist Party and several other organisations in Punjab and Bombay. He also supported the Bolshevik form of government established in Russia over the capitalistic form of government in British India which had the tacit support of organisations like the Indian National Congress. He urged the people to propagate Bolshevism which attracted the disapproval of the trying Magistrate. A two-Judge Bench of the Calcutta High Court threw out the conviction. Writing the opinion for the Bench, Lort-Williams, J said:

 

"It is really absurd to say that speeches of this kind amount to sedition. If such were the case, then every argument against the present form of government and in favour of some other form of government might be alleged to lead to hatred of the Government, and it might be suggested that such ideas brought the Government into contempt. To suggest some other form of government is not necessarily to bring the present Government into hatred or contempt.

 

In my opinion it is not wise to institute prosecutions against the makers of speeches of this kind. The effect of it is to give the impression that the Government are desirous of taking the kind of steps which, we understand, have been taken in countries like Germany and Italy, where the right of free speech has practically disappeared. So far as we know, that is not the present position in India. In any case the present speech is a long way from coming within the provisions of Section 124-A, Penal Code. The conviction and sentence passed on the appellant are, accordingly, set aside and he is acquitted." [emphasis supplied]

 

Although in scores of other cases, courts under the British regime convicted several freedom fighters for various things they uttered or wrote, this is an interesting case where the limits of the 'sedition' law were recognised by a High Court.

 

A.E. Rama Kurup, Editor "Malayali" vs the United State of Travancore, Cochin [AIR 1950 Ker 83]

In this case from 1949, after independence but prior to the enactment of the Constitution, a Full Bench of the Kerala High Court examined the matter of an order of cancellation of license to publish a newspaper owned by the Petitioner. The Court found some of the published content seditious as follows:

" ... Article 6 tries to establish that the Ministry is communalistic in its activities and establishes that it is an off-shoot of an organisation of self-centred communalists. The Ministry is characterised as imbecile and impecunious whose continuance in office is on a Pathivarom basis, that is, on the agreement that the yield would be shared equally between the Ministry and those who support the Ministry. Adverting to the timber deal, which is conspicuously referred to in another place, the paper asks what right has E. John Kuruvilla of the T.K. Ministry to enter into any mutual bargain about it. It impugns the Ministry as dishonest and attributes corruption to it. We have no hesitation in holding that items 5 and 6 are seditious.

In Item 10 the paper asks whether the Ministry will not resign. Whatever be the anxiety of the paper to precipitate the collapse of the Ministry it cannot claim to be offering honest and legitimate criticism of Government when it asserts that communal partiality reigns supreme in appointments to Government service and charges the Chief Minister of lending support to communal leaders in their attempts to enrich themselves by deceiving Government. The paper also points out that two at least of the six Ministers aim more for the interest of their own community and charges them with partiality for appointing two persons to superior posts in Government service. In spirit and tone, Items 11 and 13 are as bad as item 10. In Item 11 the Ministry is charged with high treason and accuses it of bringing shame to democracy. It is said to be inefficient, its proceedings are said to be irregular, communally biased and lacking in principles. It excites the people to white beat and exhorts them not to allow the Cabinet, which is bent on ruining the State by treason and faithlessness, to continue any longer. In item 12 the paper attacks the Ministry for overlooking the claims of Miss Samuel for the Surgeon General's place. The act is said to be steeped in injustice and urges is as a ground for terminating the Ministry. This supersession is said to be wickedness and villainy of the 'Dussasana' type. The Ministry is said to be unreliable, indifferent and opposed to public opinion and acts in complete disregard of justice and duty. It declaims that "this Government must either role with justice and truth" or it must surely die, implying that its acts are otherwise. We feel no hesitation in holding that Items 10, 11 and 13 are seditious." [emphasis supplied]

 

Within 4 months of the Constitution of India coming into force, the newly established Supreme Court of India ruled on the issue of sedition in two cases decided on the same day. In the matter of  Romesh Thappar, a Constitution Bench of the Apex Court held by a majority of 4:1 that Section 9(1-A) of the Madras Maintenance of Public Order Act, 1949 violated the freedom of speech and expression guaranteed under Article 19(1)(a) of the Constitution. On the issue of 'sedition' Patanjali Sastri, J, stated as follows:

 

"Deletion of the word "sedition" from the draft article 13(2)," [of the Draft Constitution] "therefore, shows that criticism of Government exciting disaffection or bad feelings towards it is not to be regarded as a justifying ground for restricting the freedom of expression and of the press, unless it is such as to undermine the security of or tend to overthrow the State. ... very narrow and stringent limits have been set to permissible legislative abridgment of the right of free speech and expression, and this was doubtless due to the realisation that freedom of speech and of the press lay at the foundation of all democratic organisations, for without free political discussion no public education, so essential for the proper functioning of the processes of popular government, is possible. A freedom of such amplitude might involve risk of abuse. We are therefore of opinion that unless a law restricting freedom of speech and expression is directed solely against the undermining of the security of the State or the overthrow of it, such law cannot fall within the reservation under clause (2) of article 19, although the restrictions which it seeks to impose may have been conceived generally in the interests of public order. It follows that section 9(1-A) which authorises imposition of restrictions for the wider purpose of securing public safety or the maintenance of public order falls outside the scope of authorised restrictions under clause (2), and is therefore void and unconstitutional." [emphasis supplied]

 

 

 

 

In this case a 5-member Constitution Bench of the Supreme Court of India unanimously upheld the constitutional validity of Section 124A, IPC. The Court was hearing four appeals - three of conviction of the Petitioners of sedition committed in Bihar and Uttar Pradesh and a fourth against the judgement of a Full Bench of the Allahabad High Court holding Section 124A ultra vires of the Constitution vis-a-vis Article 19. After examining the jurisprudence regarding 'sedition' that had developed until then, the Court ruled as follows:

 

 

 

 

 

 

In this case a Full Bench of the Andhra Pradesh High Court ruled against the Petitioner and held that several articles published in the magazine of which she was editor were 'seditious'. Regarding the contents of the publication the Court observed as follows:

 

 

 

Although the case itself was launched prior to the dark days of the Emergency, the influence of the overall atmosphere of restriction on fundamental liberties during the Emergency when this judgement was delivered is unmistakable from its content.

 

In this case a single Judge Bench held that slogans criticising Parliament or the judicial setup would not amount to 'sedition'. The Court clearly identified the ingredients of the offence of 'sedition' as follows:

 

 

 

In this case a Full Bench of the Punjab and Haryana High Court while denying bail to the accused explained what may be construed as 'sedition' under Section 124A, IPC. The Court observed: