Mahatma Gandhi taught us how to respond when confronted with an unjust law. You must publicly disobey the unjust law, and demand that the state either withdraws the unjust law or punishes you under this law. The state in these circumstances does not have the option of persisting with the upholding the law, and refusing to apply it against persons who publicly disobey the law because they regard it to be unjust.
I am deeply convinced that the law related to sedition under Section 124A of the Indian Penal Code is a profoundly unjust law, the incongruous continuance of a colonial law that had been created precisely to criminalise freedom fighters who are publicly opposed to the colonial regime. I am even more outraged by the gross misuse of this law in our democratic republic against student leader Kanhaiya Kumar. Kumar’s public positions passionately and vigorously supporting the values of the Constitution, social and economic equality, democracy and secularism, qualify him in my eyes to be a young Indian who is a role model for all of us, of all ages. The application of the law to him seems to have been done with the mala-fide purpose of curbing his democratic right to dissent with the policies and programmes of the central government.
To make things worse, students, teachers and journalists were beaten in the court complex and inside the court while the police looked on as mute spectators while the violence was unleashed against them. This is nothing short of a brazen denial of Kumar’s access to justice, a right as fundamental as all other rights. I learn that a petition has been filed in the Supreme Court for an order directing the Union of India to ensure peace and non-violence in the court premises, so that Kanhaiya Kumar could be properly defended and his life and liberty guaranteed by the state. More than 800 journalists have written to the Chief Justice of India, complaining of gross violation of their fundamental rights to report on court proceedings without fear of being beaten up.
What I wrote on Afzal
By all credible accounts, the meeting of February 9, 2016 in Jawaharlal Nehru University, Delhi, was organised to protest against the principle of the death penalty awarded to Afzal Guru, and not to uphold separatist politics (even though anti-national slogans were allegedly raised by some persons during this meeting). I recall my own writings at the time Afzal Guru was marched to the gallows. I wrote then in the Hindustan Times:
‘The hanging of Afzal Guru on 9 February, 2013 raises a thicket of debates – ethical, legal and political – about justice, law, democracy, capital punishment, and a strong state. What is the quality of true justice? It is it enough for it to be lawful, fair and dispassionate, or must it also be tempered with mercy?’
I went on to say that the Supreme Court’s reference in its 2003 judgment to ‘the collective conscience of the society’ being satisfied by awarding the death penalty to Guru caused me great unease, because the only legitimate reason for a court to award any punishment should be the fair application of the law to the evidence placed before it, not the appeasement of alleged majoritarian public opinion. I also expressed my anguish at the distressing failure of official compassion and public decency in denying Afzal Guru’s wife and teenaged son the chance to meet him for the last time before his execution. This was done by the UPA government and I wrote my criticisms about the actions of the government of that time. My point was then, as it is today, that no government has the right to destroy constitutional norms of public decency and morality. The haste and secrecy of the execution also unconscionably denied him his last available legal resource, affirmed by the Supreme Court in the Kartar Singh case, to seek judicial review of the rejection of his mercy petition. I had concluded my article with these words:
‘Many believe that the belated execution signalled a strong and decisive state, especially to the “neighbouring country”. One glance at the daily reality of this neighbouring country will reflect the brutalising wages of years of “decisive” politics of militarism and public vengeance. It is not a weak, but a stable, mature and confident democracy which can display compassion even to those we may believe have most wronged the country’.
Unsurprisingly, I was attacked savagely on social media by trolls of a particular political persuasion, casting me to be ‘anti-national’ for months and longer. But I was not booked by the police for sedition. It worries me deeply that today this same debate – that raises most fundamental questions of public ethics and law – initiated by students in a university, instead of being welcomed, is treated as criminal sedition, for which the principal organiser is at the time of writing under police remand.
There is little doubt that Kanhaiya Kumar could not have either raised or supported slogans against the Indian nation, because these were never part of his politics, or those of AISF (the All India Students’ Federation) of which he was a member in JNU or the CPI of which AISF is the student wing. The charges against him are transparently a mischievous attempt to use untruths to stoke popular majoritarian and hyper-nationalist sentiment against both him and the university that had elected him to lead its Students’ Union.
The law is clear
The legal position has been clarified by many legal experts, that even if the said slogans against the Indian nation were raised during the meeting in the university on February 9, 2016, it still does not constitute the crime of sedition. A constitution bench of the Supreme Court has clarified that allegedly seditious speech and expression may be punished only if the speech is an ‘incitement’ to ‘violence’, or ‘public disorder’. It has also drawn a clear distinction between ‘advocacy’ and ‘incitement’, stating that only the latter could be punished. The said slogans cannot be said to amount to inciting violence.
However it is important to add that even if there were some Kashmiri students who did raise slogans expressing disagreement with the policies of the government and in support of independence for Kashmir, the fitting response to this would only have been open public debate in which students and teachers heard their views and challenged these, not to charge these students with the grave colonial crime of sedition that could result in their imprisonment for life. Universities are places where young people must feel free to challenge the received wisdom of the times they we live in. Their minds and hearts must be freed of the fetters of fear and the obligation to conform to powerful or dominant opinion. It is in universities that students the world over have fought colonialism, unjust wars, tyranny, hate and unequal social orders. Governments and indeed majority opinion may be pitted powerfully against their views, but a democracy requires the stout defence of their right to profess and debate these ideas, even by those who are opposed to these ideas. Universities in a democracy cannot be allowed to become places where the university leadership allows the police to walk in and arrest students at will, and where dissent by students or indeed teachers is demonised and criminalised.
From the lessons of civil disobedience that I have learnt from Mahatma Gandhi, I feel compelled to demand that because despite all the evidence and legal opinion to the contrary Kumar is being charged with the grave crime of sedition for the opinions he has publicly espoused, then since I have publicly espoused similar opinions, I must be charged with the same offence. The Government of India and the Delhi police that reports to it, have only two legal options. It either absolves Kanhaiya Kumar of all charges of sedition. Or, if it persists in its belief that he committed the crime of sedition, then it must charge me also with criminal sedition, and arrest me, and subject me to the same investigation to which Kanhaiya Kumar is being subjected. This is because I have, in writing, taken similar positions on the issues for which his conduct is criminalised.
Harsh Mander is former IAS officer and Director, Centre for Equity Studies, New Delhi.
This article is also the text of his letter of protest to Union home minister Rajnath Singh and Delhi police commissioner B.S. Bassi.