Saturday 21 May 2022
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From 124 A to CrPC 39: Kanhaiya could be in bigger trouble

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news analysis

Kanhaiya Kumar, president of the University Student’s Union, who had been in jail for 22 days on charges of sedition was finally granted interim bail for six months by the Delhi High Court. Some of prominent media celebrities immediately pounced on the news and demanded an apology from the government, while many supporters of Kanhaiya Kumar considered this a victory.

However as the text of the order became public, people in social media pointed out that the court order actually vindicated their stand that anti-national sloganeering cannot be tolerated.

Navroop Singh, who tweets from the handle @s_navroop, did an interesting analysis of the verdict. His arguments are summarized as follows.

  1. A conditional bail for 6 months is by no means a verdict (or acquittal) of/from sedition charge.
    2. Defense counsel, Kapil Sibal, made a critical error and ultimately his client will be convicted.
    3. More than sedition, Kanhaiya’s failure to inform about anti-national activities to the authorities is a violation of section 39 CrPC.
    4. In the Parliament attack case Shaukat Guru was convicted for 10 years on basis of failure to report anti-national activity, thus being a passive part of the crime.
    5. Shaukat Guru challenged the sedition charge and application of section 39CrPC but Supreme Court dismissed the review and curative petitions.
    6. Now Kanhaiya’s case totally depends on Umar Khalid and others who willfully and knowingly organized the where anti-national slogans were chanted.
    7. Now Kanhaiya has to prove before court that he complied with sectoin 39 of CrPC.
    8. In case of section 39 CrPC , the onus lies on the accused to prove that he took all possible measures to inform the authorities about the anti-national activities in JNU.

The judgment

The judge, Pratibha Rani, started the judgment with a partiotic song from the Hindi film Upkaar. She made some scathing observations in the judgment regarding the nature of the slogans raised in JNU, referring to them as an “infection” from which the said students were suffering, and the perpetrators cannot claim to be protected under the fundamental right to freedom of speech and expression which is valid only within reasonable restrictions imposed by Article 19(2) of our Constitution. Taking the analogy of “infection” further, in what can be read as an indictment of JNU, the honourable judge said that if this “infection” cannot be curtailed easily, then surgical intervention is needed, or even amputation of the affected limb.

Anti-nationalism apart, the students were belittling the sacrifices made by the martyrs and their family members. Referring to this aspect of the issue, the court observed,”the kind of slogans raised may have demoralizing effect on the family members of those martyrs who returned home in coffin draped in tricolour.” It maybe good to recall that some section of the ‘free speech’ brigade had hurled abuses on Major General Bakshi too.

Point 43 of the judgment can be read as a reminder to those who take certain section and clauses of Indian Constitution for granted. The court observes that “under Part- IV under Article 51A of Constitution of India fundamental duties of every citizen have been specified along with the fact that rights and duties are the two sides of the same coin.”

The judgment also reminded the accused that “freedom to raise such slogans in the comfort of University Campus but without realising that they are in this safe environment because our forces are there at the battle field situated at the highest altitude of the world where even the oxygen is so scarce that those who are shouting anti-national slogans holding posters of Afzal Guru and Maqbool Bhatt close to their chest honoring their martyrdom, may not be even able to withstand those conditions for an hour even.”

There is never a freedom, of speech or anything else, which is devoid of responsibility and duty. Comrades of JNU must remember this basic principle.

Here is a full text of the judgment.

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