Wednesday, July 20, 2016

Legal Perspective on Anti-nationalism & Unpatriotism in JNU vis-à-vis Law of Treason (देशद्रोह) & Sedition (राजद्रोह) in India

Legal Perspective on Anti-nationalism & Unpatriotism in JNU vis-a-vis law of Treason (देशद्रोह) & Sedition (राजद्रोह) in India
At the very outset, let me clarify that offences of Treason (देशद्रोह) and Sedition (राजद्रोह) are distinctly different and separate offences. Treason (देशद्रोह) is punishable with death penalty or life imprisonment along with mandatory levy of some fine. On the other hand, Sedition (राजद्रोह) attracts a wide range of punishment extending from only fine (yes only fine) to life imprisonment along with or without fine in the discretion of court
TREASON (देशद्रोह): 
The word treason occurs nowhere in the Macaulay’s Indian penal code enacted in 1860 and as further amended several times till this date. However, the offence defined in Section 121 IPC (Waging, or attempting to wage war, or abetting waging of war, against the Government of India) is popularly known as treason (देशद्रोह). The Sections 121A (inserted in 1870), 122, 123 IPC set out offences of conspiracy, preparation, concealment respectively qua treason and are held punishable for imprisonment extendable upto 10 years or imprisonment for life along with mandatory levy of some fine.
Sedition (राजद्रोह):
1. Sedition and IPC:
No offence of Sedition (राष्ट्रद्रोह) in original Macaulay’s Indian penal code of 1860. Sedition brought in Anglo-Indian law in 1870 (further amended in 1898) when Sir Barnes Peacock found that the Indian Penal Code of 1860 had overlooked its inclusion. It may be interesting to know that even today the word ‘sedition’ does not occur in the main body of Section 124A, it is only found as a marginal note to Section 124A, and is not an operative part of the section, but merely provides the name by which the crime defined in the section will be known. 
 124A. Sedition.—Whoever, by words, either spoken or written, or by signs, or by visible representation, or otherwise, brings or attempts to bring into hatred or contempt, or excites or attempts to excite disaffection towards, [***] the Government estab¬lished by law in [India], [***] shall be punished with [im¬prisonment for life], to which fine may be added, or with impris-onment which may extend to three years, to which fine may be added, or with fine. Explanation 1.—The expression “disaffection” includes disloyalty and all feelings of enmity. Explanation 2.—Comments expressing disapprobation of the meas¬ures of the Government with a view to obtain their alteration by lawful means, without exciting or attempting to excite hatred, contempt or disaffection, do not constitute an offence under this section. Explanation 3.—Comments expressing disapprobation of the admin¬istrative or other action of the Government without exciting or attempting to excite hatred, contempt or disaffection, do not constitute an offence under this section
2. Section 124 A as read down by the Supreme Court (Kedar Nath Singh v. State of Bihar, 1962)
The operation of Section 124A is limited only to such activities involving incitement to violence or intention or tendency to create public disorder or cause disturbance of public peace. Very strong speech (or) very vigorous words, very strong criticism of measures by government or acts of official would be outside the scope of the section. Further, merely creating disaffection or feelings of enmity against the government is not sedition. Mere hooliganism, disorder and other forms of violence, though punishable under other provisions of the penal code and under other laws, are not punishable under Section 124A of the penal code.
JNU ISSUE: Various slogans raised and criminality involved as per my understanding of germane law :
1. Pakistan zindabad..Go India go back..'Bharat ki barbaadi tak jung rahegi, jung rahegi…Kashmir ki azadi tak jung rahegi, jung rahegi.. Bharat Tere Tukde Honge. InshaAllah InshaAllah
A clear cut case of sedition made out in terms of section 124 A IPC as interpreted in said Constitution Bench decision of the Supreme Court in 1962 and it needs to be taken to logical conclusion and harshest punishment envisaged in said Section 124 A must be handed-down to perpetrators. However, various media reports suggest that perpetrators are Kashmiri students who are studying in a Government Dental College, Jammu and Kashmir and other Universities/Institutions in India. Further, it appears that some of them have been identified/or most of them are identifiable. Intriguingly, no arrest has happened so far.
2. Afzal hum sharminda hain, tere qatil zinda hai… Tum kitney Afzal maroge, har ghar mein Afzal niklega….Afzal tere khoon se inqualab aayega
A fairly good case of sedition in view of above discussion and also a case of criminal contempt of court… Be that as it may, abolitionists of death penalty across the globe pass off “death penalty” as “judicial killing” or “state sponsored killing or execution”. Mr. Sashi Tharoor’s similar utterance had raised a major controversy recently. Moreover, we can afford to lose sight of undernoted authoritative pronouncements of the Hon’ble Supreme Court at our own peril only: 
(i)Balwant Singh v State of Punjab, (1995), the Supreme Court overturned the convictions for sedition, (124A, IPC) and “promoting enmity between different groups on grounds of religion, race etc.”, (153A, IPC), 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”, late evening on October 31, 1984, i.e. a few hours after Indira Gandhi’s assassination – outside a cinema in a market frequented by Hindus and Sikhs in Chandigarh.
(ii) In Indra Das v State of Assamand Arup Bhuyan v State of Assam (authored by MARKANDEY KATJU, J in 2011) the Supreme Court unambiguously stated that only speech that amounts to “incitement to imminent lawless action” can be criminalized.
(iii) In Shreya Singhal v Union of India, ( SC Judgment of 2015 striking down Section 66A of IT Act, 2000) the Supreme Court drew a clear distinction between “advocacy” and “incitement”, stating that only the latter could be punished.
3. Kanhaiya Kumar
(i) HUM KYA CHAHTE AZADI..
The copious material already available in public domain indicates that he is victim of a well-orchestrated smear campaign of mis-information, dis-information and non-information. The raw footage shows that he was seeking azadi from povery, communalism, unemployment, narrow-mindedness, gender injustice etc etc. The alleged doctored video showed otherwise. A section of media (self-proclaimed SENTINEL QUI VIVE of patriotism, nationalism, sovereignty, integrity etc) went to town flaunting about a CFSL report allegedly nailing down the incotrovertible culpability of Kanhaiya Kumar. Others are reporting that said CFSL report has only authenticated the raw footage and not the doctored video and they are still holding steadfastly to their original version of truth about HUM KYA CHAHTE AZAD. However, JURY IS STILL OUT and hence, instead of indulging into GUN JUMPING SPREE, restraint & wait are well-advised. Besides, mere presence at a gathering (unlawful assembly) doesn't make one culpable. He/she, must be aware of facts which render any assembly an unlawful assembly, intentionally joins that assembly, or continues in it, is said to me member of an unlawful assembly. Moreover, every act of unpatriotism and anti-nationalism is not necessarily seditious.
Links of some relevant videos doing rounds in public domain:
(ii) DUTY TO REPORT
Kanhaiya Kumar was JNUSU, President at the germane time. Was not he legally duty bound to report  to the police about the said seditious activities (more precisely alleged until proved in a court of law) being planned/taking place in JNU campus? Suffice to say that every person (citizen & non-citizen) vide Section 39 of CrPC, 1973 is under a legal obligation to immediately report to the nearest Magistrate or Police Officer if he/she is aware of the commission of, or of the intention of any other person to commit, any offence enumerated therein (in the absence of any reasonable excuse, the burden of proving which excuse, shall lie upon the person so aware). And offence of sedition (124A) finds mention therein. Further, Section 202 of the IPC sets out that “Whoever, knowing or having reason to believe that an offence has been committed, intentionally omits to give any information respecting that offence which he is legally bound to give, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine, or with both.”. 
It’s no gainsaid to emphasize that a definitive judgment from a court of law will finally decide on this aspect of the matter. But, nevertheless, 3 things need to be highlighted. Firstly, not only Kanhaiya Kumar but every tom, dick, harry in terms of said Section 39, CrPC was under a legal obligation to report to Magistrate/Police about the said seditious mumbo jumbo/hocus pocus. Secondly, an office bearer of JNUSU belonging to a student wing situated adversely to Kanhaiya Kumar’s student wing, in fact, had reported to the police accordingly. Thirdly, as reported in the media, personnels of Delhi Police were present at the time of seditious occurrences (Read “Was JNU sedition case ‘based’ on a TV report?”, Hindustan Times, 18 Feb, 2016 http://www.hindustantimes.com/…/story-ISAOsXEtdFuFnHJijoqY8… and “3 Policemen Were Present, But Kanhaiya Kumar Case Based On TV Footage” http://www.ndtv.com/…/3-policemen-were-present-but-kanhaiya… )
I have been saying ad nauseam that “first and foremost demand of ” PATRIOTISM & NATIONALISM” today is to strive for the eradication of the evils of “CRONY CAPITALISM; CORRUPTION; CASTISM; politically motivated and sponsored COMMUNALISM”; Self-seeking PSEUDO-SECULARISM; DADGIRI & APPEASEMENT based on CASTE/RELIGION”; DYNASTY politics; CRIMINALIZATION & COMMERCIALIZATION of politics” and “SCOURGE of self-styled GOD-MEN and बाबातन्त्र (CRONY BABAISM)” in addition to menacing threats of “TERRORISM and NAXALIZM” in India. I also wrote in THE TRIBUNE, NEW DELHI, JUNE 25, 2010 a short piece entitled “Fighting terrorism” read thus: 
“It is not so uncommon to hear that India is a soft state for its weak-kneed approach to combat terrorism largely because of want of strong political will and efficacious law (Editorial, “Amending AFSPA: Humane law can’t weaken fight against militancy”, June 22). Terrorism is the worst form of assault on the sovereignty of a nation and sanctity of human lives. Before branding any law as draconian, it must be understood that democracy and terrorism are dichotomous, and to save the former sometimes the state has to take recourse to some unsavoury legal mechanism. Moreover, everything, including the law created by some human agency, is vulnerable to misuse. The remedy lies in minimising such misuse by awarding exemplary punishment. History bears testimony to the fact that the menace of terrorism can be stamped out only if it is confronted with an iron hand. However, the sustained focus on constructive measures in terrorist-infested areas and respect for the notion of human rights will also contribute immensely to the task of eliminating the menace.
RAJENDER GOYAL, Bahadurgarh”
Same also hold true for eradicating the menace of naxalizm.
RELEVANT STATUTORY PROVISIONS:
121. Waging, or attempting to wage war, or abetting waging of war, against the Government of India.—Whoever, wages war against the 75 [Government of India], or attempts to wage such war, or abets the waging of such war, shall be punished with death, or 76 [imprisonment for life] 77 [and shall also be liable to fine]. 78 [Illustration] 79 [***] A joins an insurrection against the 80 [Government of India]. A has committed the offence defined in this section.
121A. Conspiracy to commit offences punishable by section 121.—Whoever within or without Indiaconspires to commit any of the offences punishable by section 121, [***]or conspires to overawe, by means of criminal force or the show of criminal force, [the Central Government or any [State] Government [***], shall be punished with [imprisonment for life], or with imprisonment of either description which may extend to ten years, [and shall also be liable to fine]. Explanation.—To constitute a conspiracy under this section, it is not necessary that any act or illegal omission shall make place in pursuance thereof.]
122. Collecting arms, etc., with intention of waging war against the Government of India.—Whoever collects men, arms or ammuni¬tion or otherwise prepares to wage war with the intention of either waging or being prepared to wage war against the [Govern¬ment of India], shall be punished with91 [imprisonment for life] or imprisonment of either description for a term not exceeding ten years,[and shall also be liable to fine].
123. Concealing with intent to facilitate design to wage war.—Whoever by any act, or by any illegal omission, conceals the existence of a design to wage war against the [Government of India], intending by such concealment to facilitate, or knowing it to be likely that such concealment will facilitate, the waging of such war, shall be punished with imprisonment of either de¬scription for a term which may extend to ten years, and shall also be liable to fine.
Section 39(1) in The Code of Criminal Procedure, 1973
(1) Every person, aware of the commission of, or of the intention of any other person to commit, any offence punishable under any of the following sections of the Indian Penal Code, (45 of 1860 ), namely:-
(i) sections 121 to 126, both inclusive, and section 130 (that is to say, offences against the State specified in Chapter VI of the said Code);
(ii) sections 143, 144, 145, 147 and 148 (that is to say, offences against the public tranquillity specified in Chapter VIII of the said Code);
(iii) sections 161 to 165A, both inclusive (that is to say, offences relating to illegal gratification);
(iv) sections 272 to 278, both inclusive (that is to say, offences relating to adulteration of food and drugs, etc.);
(v) sections 302, 303 and 304 (that is to say, offences affecting life);
(va) 1 section 364A (that is to say, offence relating to kidnapping for ransom, etc.);
(vi) section 382 (that is to say, offence of theft after preparation made for causing death, hurt or restraint in order to the committing of the theft);
(vii) sections 392 to 399, both inclusive, and section 402 (that is to say, offences of robbery and dacoity);
(viii) section 409 (that is to say, offence relating to criminal breach of trust by public servant, etc.);
(ix) sections 431 to 439, both inclusive (that is to say, offences of mischief against property);
(x) sections 449 and 450 (that is to say, office of house- trespass);
(xi) sections 456 to 460, both inclusive (that is to say, offences of lurking house- trespass); and
(xii) sections 489A to 489E, both inclusive (that is to say, offences relating to currency notes and bank notes) shall, in the absence of any reasonable excuse, the burden of proving which excuse shall lie upon the person so aware, forthwith give information to the nearest Magistrate or police officer of such commission or intention.
Section 202 in The Indian Penal Code
202. Intentional omission to give information of offence by person bound to inform.—Whoever, knowing or having reason to believe that an offence has been committed, intentionally omits to give any information respecting that offence which he is legally bound to give, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine, or with both.
POST SCRIPT: 28/2/2017
JNU sedition case: Probe gives Kanhaiya Kumar clean chit. India Today exclusive
Anti-India sloganeering did ring through the JNU campus last year, but Kumar's voice has tested negative in forensic tests, sources have revealed. Most of the other slogan shouters were Kashmiri students, sources further added.
Last week's violent fracas at Delhi's Ramjas College has ignited, yet again, a nationwide debate on freedom of speech and what it means to be (anti) national.
The script of the current unrest seems similar to last year's Jawaharlal Nehru University controversy when a group of students was alleged to have raised anti-national slogans.
However, JNU student leader Kanhaiya Kumar raised no anti-India slogans for which he was charged with sedition last year, top officials investigating the case have revealed to India Today, citing forensic examination of voice samples. 
 Controversial slogans resonated through the JNU campus in February, 2016, sparking a national debate on freedom of expression and nationalism.
Bhim Sen Bassi was commissioner of the Delhi police when several students of the Jawaharlal Nehru University, including Kumar, were charged with sedition for alleged anti-India cries.
POLICE YET TO FILE CASE
But an India Today investigation has found police have yet to file a formal chargesheet in the case that involved charges as serious as sedition. Bassi and his successor Alok Verma have, in the meantime, moved on from the city's police force.
A senior special-cell officer, requesting anonymity, said, "We are trying to connect the lose ends and are in the process of filing a chargesheet." The officer added that it would be incorrect to say there is no evidence against accused in the case.
Top sources in the Delhi police's special cell, which is investigating the matter, have revealed they sent as many as 40 video samples of the controversial JNU event for forensic examination
Most of the footage, they said, have been found to be authentic.
UMAR KHALID MAY HAVE RAISED ANTI-INDIA CRIES
Anti-India sloganeering did ring through the JNU campus that day, but Kumar's voice has tested negative in the forensic tests, highly-placed special-cell sources revealed.
Kumar, the investigators said, had reached the scene after a clash broke out between JNU students and Akhil Bharatiya Vidyarthi Parishad activists.
But lab examinations have identified nine students as possible slogan-shouters, including Umar Khalid and Anirban Bhattacharya, special-cell sources said.
Most of the other slogan shouters were Kashmiri students from several universities, Jamia Millia Islamia and the Aligarh Muslim University included, according to special-cell officials.
But no FIR has since been lodged against the Kashmiri suspects, they said.
KANHAIYA: HAVE ALWAYS MAINTAINED MY INNOCENCE
India Today spoke to Kanhaiya Kumar, who said he has not seen this report, but added that he has always maintained that he has been wrongly implicated. "I was always sure that truth will come out... and conspiracy against JNU will also revealed," he said.
He went on to question if those who attacked him when he was brought to court would be booked and also asked if the BJP leaders who spoke against him would apologise.
On the matter of Khalid and Anirban, Kumar said, "Let court decide who is anti national and who should be punished... but this case and event of last February can't be used by the ruling party at their convenience to fool people and defame educational institutions."



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