As political parties engage in a debate over the arrest of JNU Student Union president Kanhaiya Kumar for sedition, legal experts warn the Delhi Police are likely to have a tough time to prove the charges. Merely raising anti-establishment slogans would not be seditious unless the spoken words or actions are aimed to incite a mob or crowd to resort to violence, they explain.
Kumar has been accused of organising a public meet at the university campus on February 9. Police case states the meeting was about hanging of Afzal Guru, convicted in the Parliament Attack case, and during the course some persons including Kumar raised “incendiary slogans.”
Under the colonial era law anybody who “by words – either spoken or written - brings or attempts to bring into hatred or contempt or excites or attempts to excite disaffection towards the government” can be sent to jail for life.
In 1962 the Supreme Court had, however, read down the provision even as it upheld the constitutional validity of section 124A of the Indian Penal Code (IPC) despite it restricting the right to free speech and expression.
“…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,” the top court had ruled, holding the restrictions are within the ambit of permissible legislative interference and in public interest.
Senior advocate Raju Ramachandran says the case against Kumar has to be within the parameters SC has laid down on the issue. “The police has to prove that Kumar made an attempt to incite a mob against the government. If it doesn’t stand the test then the case has to be quashed at the threshold,” he felt.
Ramachandran recalls how a trial court had ended a sedition case against noted author Arundhati Roy who faced the charges after she spoke of the need for plebiscite in Kashmir at a seminar. “There must be an element of incitement of violence,” he says.
According to senior criminal advocate Sushil Kumar there has hardly been any conviction in such cases. He feels it’s more of a political gimmick and the law is misused to stifle free speech. “There is nothing seditious about a group of students protesting over an incident, which they sincerely feel is wrong. But, if the speaker motivated the crowd to pick up arms and attack then one could have understood,” he says.
“In this case the intent to commit violence is lacking. Sedition is made out when you give a call to perform an action that is likely to obstruct or defy the government. Also, its not illegal to debate over a judgement. One can criticize a view but not call it sedition,” senior advocate Vikas Singh opines.
Justice Ajit Kumar Sinha, former judge of the Jharkhand High Court, explains act sedition is such that could lead to disintegration of the country or destabilize an elected government. “If it’s a simple protest then he has been wrongly arrested. But, if the protest was with a view to break the country, it would definitely be a crime,” he says.