February 21, 2016

India: Goon’s Justice, Mob’s Democracy (Rajeev Dhavan)

The Wire, 20 February 2016

Goon’s Justice, Mob’s Democracy
By Rajeev Dhavan

We have just witnessed a week of shame for “Mother India”, when democracy was reduced to rubble and the rule of law was left gasping for breath

Lawyers beat an effigy of Kanhaiya Kumar with shoes on Rajpath in the capital. Credit: Shome Basu

Lawyers beat an effigy of Kanhaiya Kumar with shoes on Rajpath in the capital. Credit: Shome Basu
The incidents at Jawaharlal Nehru University in the second week of February resulted in its vice chancellor allowing the police to enter the campus. A meeting on Kashmir was planned which was taken to be anti-national. After that, the ABVP, the student wing of the BJP, joined issue to the point of provocation. Ministers of the BJP-led government wanted anti-national sloganeers to be punished irrespective of what offence was made out. Somebody had to be picked up, arrested and charged with the most serious of offences: sedition. The finger was pointed at Kanhaiya Kumar, president of the JNU Students Union.

Kanhaiya never raised anti-national slogans and swore by the constitution. But a scapegoat was needed so a vindictive arrest was made. For anyone who knows the law of sedition, there was no case against him. After Kanhaiya’s arrest, he was remanded to police custody for three days. When he came back to Patiala House on February 15, there was mayhem on the part of BJP supporters. Journalists were beaten up. The atmosphere was ugly and violent.

On February 17, the Supreme Court passed orders in the morning for the police to protect the accused and to give access and protection to named lawyers and journalists who were there to attend the hearing. Despite those orders, Kanhaiya was attacked. When the Supreme Court sent a team that afternoon to investigate what had happened and how, the Patiala House court was still overrun by a swarm of lawyers intent on violence, intimidation and goondaism. The team itself faced hostility. Slogans, abuses, bajri and other material were hurled at them. This was mobocracy, political cruelty, a failure of justice, not devoid of political manipulation.

Misreading the law on sedition

Sedition entered Anglo-Indian law in 1870 when Sir Barnes Peacock discovered that the comprehensive Indian Penal Code of 1860 had overlooked its inclusion. With its addition, anyone who said something perceived as incitory – bringing the government established by law into hatred or contempt, or exciting disaffection – was deemed seditious. The provision was used politically against the freedom movement, as in the celebrated Tilak case, and indifferently against speech not liked by officials.

The constituent assembly, while drafting India’s constitution, was wary of protecting colonial laws used to silence the freedom movement. The term “sedition” had been included in the draft of April 14, 1947, the constitutional advisor’s draft of October 1947, the draft constitution of February 1948 and the reprint of October 1948 as one of the restrictions to free speech. K.M. Munshi suggested in the constituent assembly that the word “sedition” be replaced by “undermines the security of, or tends to overthrow the state” precisely because ‘sedition’ – as defined in section 124A of the IPC – was notorious and had been used against freedom fighters. Thakurdas Bhargava moved to insist that restrictions be ‘reasonable’. Ambedkar accepted these amendments with the Munshi substitution. When the first amendment of 1951 was made following the Supreme Court’s decisions in Romesh Thapar and Brij Bhushan (1950) the reasonable restrictions permissible in Article 19(2) were re-shuffled to include “security of state, friendly relations with foreign states, public order, decency, morality, contempt of court, defamation and incitement of offence.” In 1963, “sovereignty and integrity of India” was added. Of course, “sedition” could be swallowed in this avalanche of restrictions, but the fact remains that it was specifically excluded from the list by the constituent assembly.

In 1959, the Allahabad high court took the lead in declaring the law of sedition in section 124A of the IPC unconstitutional. But in Kedar Nath (1962), the Supreme Court preferred to dilute the sedition provisions to protect mere abusive words from prosecution. The court laid down the need to show intention as also the imminent threat of inciting or actual incitement to violence. This was an advance, but with all its potential nuances. It would have been better for the Supreme Court to have struck down the sedition provisions as unconstitutional. No doubt the Supreme Court in Balwant Singh (1995) made short work of sedition charges against two persons who had raised raised slogans without creating disorder or inciting violence. This was not seditious, it ruled.

But is justice in sedition cases to be found only through the intervention of the Supreme Court? The police are ruthless in their understanding of sedition as a wide ranging offence to arrest anyone who attacks the government or government policy. This is why sedition should have been struck down and removed from the statute book. Even if this was done, Indian governance would still have ample provisions to deal with public disorder or all kinds of conspiracies to wage war against the state. Sedition has no place in a democratic India committed to constitutionally protected free speech.

That said, the law as laid down by the Supreme Court at present is that the offence of sedition under section 124A of the IPC is constitutionally subject to the Supreme Court’s caveat in Kedar Nath’s case (1962) – that “very strong speech (or) very vigorous words… very strong criticism of measures by government or acts of officials… would be outside the scope of the section.” Further “…merely creating disaffection or feelings of enmity against the government” is not sedition. What is required is “incitement to violence or the tendency or the intention to create public disorder.” Intent and threat to public order by resort to violence were seen as necessary ingredients of sedition – without which the provision would have been unconstitutional.

However, politicians in power, and the police, refuse to accept the limitations imposed on the law of sedition. For them, sedition is a “catch all” offence to entrap anyone whom they don’t like or who expresses dislike of them. Their attitude is: “Arrest them, remand them to custody, deny them bail, take them through a trial even if they are found to be acquitted eventually.” It is this scary attitude of making the process the punishment that characterises the total misuse of sedition.

Sedition has become a play thing in the hands of officialdom.

Binayak Sen has been convicted of sedition, but was given bail by the Supreme Court both before and after his conviction. His appeal against the conviction is pending. An irate and flabbergasted Supreme Court in 2011 made it clear that a Maoist sympathiser cannot be necessarily assumed to be guilty of sedition. Binayak Sen’s conviction was widely condemned.
Geelani and Arundhati Roy made speeches at a conference on Kashmir, called “Azadi – the only way”. It was asserted that Kashmir had never been an integral part of India and that this had been accepted by the government. While an FIR was filed, the Central government in 2010 did not think that such charges were proper.
In January 2012, Aseem Trivedi was charged with sedition and other offences by the Beed district court for insulting cartoons about the national emblem, flag and parliament.
In 2011, the police in Punjab charged five Sikhs with sedition for promoting enmity among between groups and affecting the integrity of India because they published a pamphlet of a Jarnail Singh Bhindrawala speech while knowing that a lot of such material was already in the public domain.
In 2012, many protestors near the nuclear plant at Kudankalam were charged with waging, war, sedition and promoting enmity among groups.
In 2008, the Ahmedabad police commissioner, O.P. Mathur, filed a complaint against the Times of India resident editor and a journalist for sedition and criminal conspiracy. A politician said this could only be “at the behest of a dictator”.

Of course, sedition is not the only offence used to put down public comments. The British Raj legated to independent India innumerable other offences of conspiracy, waging war, causing enmity between groups, deliberately insulting religion, breach of place and so on. That is to say, an entire apparatus of a potential police state. The police and their political masters can arrest and charge at will, but sedition in an archaic relic of an archaic law, being punishable for three years or life with or without fine. It carries with it a moral sting. A person accused of sedition is not just portrayed as a bad man but profiled against the nation – an indictment furthered by an amendment to the IPC of 1972 criminalizing imputations and assertions against national integration and the sovereignty and integrity of India. This is quite an intimidating ensemble of offences which could be used at random whenever a twitching hand wants to incarcerate a dissenter and hold him to obloquy.

Misreading the JNU event

An interesting exchange took place in a public order case of Beatty v Gillbanks (1882) between the judge and counsel.

Judge: Suppose the appellants knew that their procession would be opposed, and that violence might probably ensue, and they still proceeded with it?
Counsel: The answer to that is, that their procession being lawful they were entitled to be and ought to have been protected by the authorities from such opposition. If it were not so, mob rule would soon take the place of law and order. It is disorderly rowdies and riotous toughs whom the police should put down, and not lawful and peaceful processions.”

It often happens that a peaceful meeting would have remained so, but was disrupted by rowdies and toughs. Surely it is the latter who are to blame for the violence and incitement to violence. In JNU who caused the actual incitement? Not the factum or posters of the meeting, but those who collected to threaten violence. In JNU, it was the ABVP that went out of its way to provoke disaffection. They provoked the alleged provocateur.

Let us examine the facts. On February 9, 2015, ten students who are former members of the Democratic Students Union, (DSU) organised a cultural evening to assert Kashmir’s right to self-determination (a subject on which many scholars and activists have diverse views), the wrong judicial verdict on Maqbool Bhat (which many have called a judicial murder, without exciting the contempt jurisdiction of the Supreme Court) and the wrongful conviction Afzal Guru, who it was urged should not have been hung (many oppose the death penalty and oppose the medieval cry of “no mercy”). Of course, these views are as strong as they are well known. Such views are contrary to the national policy of successive governments and may be provocative, but surely do not constitute sedition.

The ABVP complained to the administration. An irate registrar had his own take: “How could we allow them to organise an anti-India programme?” In a democratic institution, perhaps the answer lay in a boycott by those who did not want to attend. But, it appears the ABVP, which called a protest outside the dhaba, came with provocation aforethought:

“This programme is anti-constitutional. Anyone who tries to portray a terrorist as a matter will have to face us. We won’t allow such anti-national programmes on campus”.

Vice Chancellor Jagdish Kumar echoed Registrar Zutshi’s line that the university had been deceived. The VC gave a free hand to the police to enter the campus and do whatever it wanted – no doubt for the greater glory of India. Lalit Pandey of the ABVP welcomed discussion but said “such anti-national events will not be tolerated”. In other words, do not engage with anyone who feels Kashmir’s status quo needs changing. Would JNU not sanction a Ph.D. candidate to pursue a dissertation on the possibilities of Kashmir as a separate nation? Soon the Kashmir issue was side stepped and it became an ABVP event. Quick on the draw, it was the ABVP who created a ruckus, including being joined by outsiders brought in to foment trouble and join the fray. There was a call to “Shut Down JNU”. All they needed was the provocation of pro-Kashmir supporters who portrayed the future as a jang (war).

The ABVP carried their own protest on campus in a manner that exacerbated the situation. They took charge. The university administration was with them. The HRD minister took the cultural event as an attack on “Mother India” and home minister Rajnath Singh welcomed debate but warned that “anti-India sloganists will not be spared.” But who created the ruckus, the violence and terrorised the campus? It was the ABVP. A BJP MP from Delhi, Maheish Girri went to the police station to lodge an FIR on February 11 against 20 unknown persons. On the facts, the unknown persons could have been members of the BJP. But the police seemed briefed by BJP sympathisers to target other students. The VC allowed the police, who should have had no place on a campus. They raided the girls’ hostels. For what? Meanwhile, following a meeting at the Press Club, Professor Ali Javed and SAR Geelani were subjected to police interrogation. In time, Geelani, acquitted in the Parliament attack case, would also be arrested for sedition.

Kanhaiya Kumar was arrested on February 13, with the police invoking the law of sedition. Nothing could have been more unwarranted. He protested that he had always declared Kashmir integral to India and had nothing to do with any seditious activity. He thought this ensnaring was revenge because he had defeated the ABVP to become president of the students union. Taken to court, he was remanded for custodial interrogation for three days. For what?

According to Delhi police commissioner B.S. Bassi, sedition was rightly invoked. But he got section 124A totally wrong by saying:

“If one reads the section, they would see that any activity that spread hatred towards the country or the government is covered under this section.”(emphasis added)

There is something seriously wrong in Bassi’s understanding of the law. There is also something wrong with Rajnath Singh’s counter allegation that the Lakshar-e-Tayyaba was involved. This was based on planted ‘tweets’. When you are supported by the RSS and avidly supporting ABVP and other right wing elements, you don’t condemn them but invent conspiracies without foundation. What we are witnessing is India’s McCarthyism. The ABVP and others are front line dictators, Rajnath Singh and the government their ally.

Misreading ‘Mother India’

When the police moved into JNU after the February 9 incident, HRD minister Smriti Irani proudly declared: “The nation can never tolerate an insult to Mother India.” What is this Mother India that Irani is talking about? It couldn’t be the destruction of the Babri Masjid. Or the yatras that preceded it. Or miscreants destroying books at the Bhandarkar Institute in Pune. Or the persecution of artists and writers. Or the demand to convert India into a Hindu state. India is a most complex nation, the coming together of a multi-cultural, multi-linguistic, multi-religious society. Mother India is not a slogan. She is an idea that spreads across the nation and the world. She represents history and the future.

Geographically she extends from Kashmir to Kanyakumari and into the diaspora. She reorganises this huge diversity, the promise of justice to the poor, to the majority and minorities. She tolerates dissent on all issues – even the most sacral. She encompasses democracy hand in hand with the rule of law and punishes with a sense of justice. She has a commitment to truth, tolerance and yet has a commitment to defend herself and deter those that threaten her. Everyone matters. “Everyone does not have to sing the same song” is how the Supreme Court put it. Indeed, it would be a tragedy if this were not so.

It is precisely Irani’s inability to comprehend what Mother India is that is the root of the problem. Blinded by the perversity of her narrow understanding of the nation and coloured by her politics, she portrays disagreement as unpatriotic and traitorous. Of course, we do know what constant appeals to the Fatherland did over a century to lead to a ferocious war that engulfed humanity. The use of the feminine ‘mother’ projects Irani’s intimations of a vulnerable India. But the nation is stronger that she believes. Mother India is concerned with all her people: the poor, the excluded, the voiceless, the frustrated, the believers, the non-believers, the brilliant and not so brilliant. Mother India is surely open to complaints, harsh words, angry exchanges, provocations and provocative replies. All that Mother India asks for is honesty and peaceful exchange, not the kind that the ABVP stage-managed in JNU with the tacit approval of Irani.

By February 14, the RSS was demanding a purge of all anti-national elements in all universities. This is part of a larger plan of taking over higher education and institutes of research. Recall the events at the Film and Television Institute in Pune, the events in Hyderabad and the murder of Kalburgi and others. All in the name of Mother India. Given this agenda, the groundless sedition charges against Kanhaiya Kumar will not be dropped. He is the victim of his own success in opposing the ABVP electorally in JNU and winning the election as president of the student union. He was already a marked man and will continue to remain so.

A strange course for the law

When home secretary Rajiv Mehrishi all but pronounced a verdict on the “anti-national activity” of Kanhaiya, he overlooked the fact that what the ruling party supporters were doing was also anti-national. Faced with the conduct of the ABVP and of thugs at the court hearing at Patiala House, the official response was the law will take its course. But how did the law take its course for Kanhaiya Kumar? Even before the proceedings began in court on February 15, some “lawyers” taunted JNU professors and academics to give up their seats purportedly because “the court was not a JNU hostel”. A scuffle occurred. Outside, satchel carrying youths were beaten up because they were JNU students. Kanhaiya’s friend, a former Kerala minister, was also thrashed. The students were told they “would be sent to Pakistan”. Journalists were threatened not to film events. Alok Singh of the Indian Express was beaten. Azan Javaid hid in a court room. Neither journalists nor teachers were spared. BJP MLA O.P. Sharma and his supporters showed little restraint in seeking to silence Ameeque Jamai, whom Sharma claimed was shouting ‘Pakistan Zindabad’ slogans. In interviews, Sharma promised to do this again if provoked.

For the police commissioner, this mayhem was “a minor scuffle” but can there be justice according to law in an atmosphere where there is tension in court; and mayhem outside with journalists told that their phones and bones would be broken? Can lawyers beat up journalists in court?

On February 16, the Chief Justice of India agreed to list a petition which asked whether justice can ever take place in this charged atmosphere. A memorandum of the 800 journalists who marched to the Supreme Court was submitted. The case was heard by Supreme Court judges J. Chelameshwar and A.M. Sapre. Even in court on February 17, there was a shout of ‘Vande Mataram’. The person, Rajiv Yadav was purportedly a lawyer, who was let off with a warning. The Supreme Court was informed of the tension at the Patiala House where a shouting mob had made peaceful entry without police escort impossible. An elaborate order was passed around noon by the Supreme Court for the protection of Kanhaiya, his lawyers, supporters and journalists as the eyes and ears of the public. By lunchtime, the court was told that the accused was beaten up and a strong mob was on the court premises outside the court building. The court deputed a team consisting of Kapil Sibal, myself, Harin Rawal, Ajit Sinha, ADN Rao, Dushyant Dave and included Prashant Bhushan (who did not eventually join the team). It is difficult to fathom why the police kept us stranded at the Supreme Court for 15 minutes even though under court orders. On Tughlaq Marg, it allowed itself to be casually caught in traffic, and eventually the team took the decision to walk. As we neared the area outside the court, we were greeted with slogans: the team got in to discover the police had not been able to protect a distraught Kanhaiya Kumar. He had been thrashed and beaten when escorted into court.

The police were not forthcoming in their explanations and there seemed a reluctance to cooperate, except perfunctorily. The committee was also told that a stranger, wearing dark glasses and a suit, purporting to be a lawyer, had got into court. He was not on the list of permitted lawyers as per the Supreme Court’s orders. He went into the court where the accused was reportedly pushed. The registrar general of the high court, who had also been asked to be present at the Patiala House proceedings by the Supreme Court, told us that he had asked the police to stop and arrest this man. The police were in the court at the time but allowed this person to get away. Their explanation was far from satisfactory. Apart from ineptitude, it appeared as if some restraining hand guided them. When our team went out from the court rooms, the huge mob of lawyers was still there a few feet away shouting slogans against us: ‘Pakistan ke dalley, B**d’, along with other abuses. At places, lawyers broke the protective barricades. One or two members of the committee were pushed, bajri and sharp bits of flower pots were thrown at them. An oral report was given to the Supreme Court bench in an extended hearing. It is impossible to believe that court premises can become mobs of partisan and violent lawyers. It is equally impossible to believe the police could not do their job. The accused was assaulted; an atmosphere of terror was allowed to spread across the court premises for two days.

Conclusions that are inescapable

A review of these events clearly establishes the following:

(a) an event on Kashmir seeking its self determination is not anti-national, even if the slogans raised there were hurtful and provocative.

(b) Slogans against India or in favour of Pakistan are provocative and can be perceived as anti-national.

(c) The charge of sedition is made if only if there was intentional incitement leading to violence.

(d) If a crowd is deliberately assembled by the ABVP and outsiders, they were responsible for the ruckus. The university needs to deal with them.

(e) The VC’s carte blanche to the police was ill conceived and resulted in the police raiding girls’ hostels.

(f) The arrest of Kanhaiya Kumar for sedition was clearly contrary to the law. He raised no Kashmir slogans, sought calm and pledged his support to the constitution and country at the time.

(g) Police commissioner Bassi does not understand the law under which Kanhaiya Kumar has been arrested.

(h) The case has less to do with the shouting of anti-national slogans on campus and arguably more with the ABVP and Sangh parivar’s desire to control university campuses by multiple means and dislodge liberals, the left and, indeed, learning and exchange.

(i) ABVP, RSS and Sangh parivar- linked persons decided to create havoc and have taken this opportunity to beat up journalists and others, creating a ruckus in court and unleashing violence outside it.

(j) The police’s failure to make quick arrests in the obvious case of beatings by BJP and Sangh parivar activities was deplorable.

(k) The Supreme Court’s orders to the police were not carried out in letter and spirit

(l) Even the Supreme Court committee was taunted by the mob with slogans and things were thrown at them.

(m) The police have not done their job. Political collusion cannot be ruled out.

(n) The police commissioner and his officers have a lot to answer for. Changing him is not enough.

(o) This is a political case. The charges must be dropped.

(p) Action has to be taken against lawyers identifiable by video. There are enough videos to show the real culprits who must be exposed. Among them is the lawyer Surinder Tyagi, who said that he is proud to have discharged his fundamental duty to attack Kanhaiya Kumar and that his supporters would ensure that Kanhaiya is not safe even in Tihar. Other lawyers, including Vikram Singh Chauhan, who beat up journalists and students are unrepentant.

(q) The law of sedition is open to gross abuse. It is an ignominious law which should be repealed.

(r) Violence should never happen on court premises in future. Concrete steps are needed to ensure this with special security arrangements and cameras to identify breaches.

(s) We have just witnessed a week of shame for “Mother India”, when democracy was reduced to rubble and the rule of law was left gasping for breath.

Rajeev Dhavan is a senior advocate, Supreme Court of India