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Kanhaiya Bail Order Elaborates Extra-judicial Reasoning

kanhaiyaCharges of Sedition against all three students and SAR Geelani must be dropped

We welcome the granting of bail to JNUSU President Kanhaiyya Kumar. However, the observations made in the High Court’s bail order produce a sense of disquiet. The court prefers to rely on Hindi film songs rather than judicial reasoning and case law in its Order.
The video evidence, which was till a few days being touted as unassailable evidence of Kanhaiyya Kumar’s guilt, now proven to be doctored, finds no mention in the court order. Leaving the question of evidence to the trial court, the High Court has preferred to deliver a series of homilies on patriotism, using terms like ‘infection’ and ‘treatment’. Indeed, in its repeated references to Siachen, border and soldiers, the Order deploys extra judicial reasoning and commonsense ideas, thus confusing the very legal definition of ‘sedition’ with ‘anti-nationalism’. It should be noted that IPC does not define ‘anti-nationalism’ as a crime, and legally speaking, it cannot be merged with sedition.

In doing precisely this, however, the court has chosen to disregard the binding precedent of the five-judge Constitution Bench (Kedarnath versus State of Bihar) regulating the definition of the term sedition under 124 A. Our highest courts, from Kedarnath onwards have interpreted the section on sedition by making it crystal clear that any speech, howsoever offensive or violent in content, does not amount to sedition unless and until such speech is accompanied by violence or is itself an incitement for imminent violence.

In Balwant Singh and Ors vs State of Punjab (1985), the Supreme Court overturned the convictions for ‘sedition’, and acquitted persons who had shouted – “Khalistan zindabaad, Raj Karega Khalsa,” and, “Hinduan Nun Punjab Chon Kadh Ke Chhadange, Hun Mauka Aya Hai Raj Kayam Karan Da”, on October 31, 1984, a few hours after Indira Gandhi’s assassination, by ruling that even advocating a violent overthrow of the state, does not amount to sedition, unless there is incitement to violence, and more importantly, an incitement to ‘imminent’ violence.
Despite the fact that legal experts have time and again drawn attention to the very specific conditions under which the sedition law may apply, we have seen a systematic and deliberate attempt by media houses, government spokespersons and officers of the law, to obfuscate the matter by indicating that any kind of offensive speech may be termed seditious, which carries a sentence of between three years and life. Have we really become so extraordinarily insensitive and insecure that we can demand such a brutal punishment for those whose opinions we may find offensive or obnoxious but from whom there is absolutely no threat of any sort?

For these very reasons the arrest of SAR Geelani under the same sections of sedition for organizing a meeting where allegedly anti-national slogans were made, also appears blatantly unjustifiable.

We reiterate the demand of the civil society that sedition charges must be dropped against all, including the three students and Prof. SAR Geelani.

Released by Jamia Teachers’ Solidarity Association/ 3rd March 2016

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