As newspaper reports keep coming in, the JNU controversy grows ever murkier and conjectured. From claims of ‘freedom of speech’ to ‘anti-nationalism’, ‘disunity’, ‘sedition’ and now ‘terrorist group backing’ have all done the rounds, in what appears to be a cacophony of vested interests, highly polarized and devoid of any impassioned call for principles. That a series of enquiry commissions, from magisterial to internal university probes have been ordered, has not deterred groups from agitating their own version of the story, igniting both nervous sentiments and political opportunism. If controversies in India are anything to go by, one knows very well that, the buck stops at the door of the judiciary. However, in criminal matters, the way it reaches up to the courts has tremendous consequences for the accused. Sansadvocating any nuances on the freedom of speech andits porous boundaries, this piece underscores a rather stealthy and graduate repositioning of the controversy by the present administration from a purely ‘sedition’ claim towards a more worrisome province of ‘glorification of terrorism’ and ‘unlawful activities and association’.
Not much room for a Sedition Claim
Amidst the unfolding controversy, the students who participated at the Afzal Guru event, including Kanhaiya Kumar were picked up by the police on charges of Sedition under the IPC. A deluge of criticism was levelled against the government and its enforcement agencies, for displaying high-handedness and stifling free speech. The law on sedition was back in focus with critics upping the ante on the abuse and misuse of the colonial era law.
But should we be concerned about the charges of sedition against the students?
In recent times, the law of sedition has formed the subject matter of debate in the courts and judging through various standards, the scope and effect of the provision has been relatively curtailed. In a catena of cases from the very old KedarNath to more recently Shreya Singhal, the Supreme Court has emphasized that speech, howsoever, distasteful, critical or disapproving will only amount to sedition if it is also accompanied by an incitement to violence or public disorder, which is both real and imminent. Any words ‘spoken’ or ‘written’ falling short of that standard, will not fall within the definition of sedition under section 124A of the Indian Penal Code. It is anybody’s case, including the government with its infinite wisdom to decipher that, its move, although populist (to a certain section) and swift, in routing ‘anti-national’ activities from the university, will hardly muster the standard imposed by the Supreme Court. The event was organized within the confines of the university premises, and admittedly only by a residual section of the student population. Indeed, tensions arose as a result of the Vice-Chancellor denying permission to host the event, nonetheless, ‘…No untoward incident occurred at the venue…’ as per police claims. Moreover, there was certainly no imminent or real danger of a perceived distortion to public order justifying the invocation of section 124A.
Unlawful Activities Prevention Act, 1967 in the offing
Now that sedition charges look rather disproportionate, what does the government do instead, so as to ensure that the students are indeed dragged into a more terrifying ambush?
Try and invoke the Unlawful Activities Prevention Act of 1967!
The Unlawful Activities Prevention Act (UAPA) is yet another draconian piece of legislation allowing the government to practically annihilate a whole bunch of fundamental rights including, free speech and association. The act has been amended twice, first in 2008 and again in 2011 with ever more transfer of powers to the law enforcement agencies. Under the Act, two particular provisions are of relevance in the present controversy. First, section 2 (o) read with section 13, which define and punish ‘unlawful activities’ respectively. For a fuller understanding of the present argument, it is instructive to quote section 2 (o) in toto:
(o) "unlawful activity", in relation to an individual or association, means any action taken by such individual or association (whether by committing an act or by words, either spoken or written, or by signs or by visible representation or otherwise),-
(i) which is intended, or supports any claim, to bring about, on any ground whatsoever, the cession of a part of the territory of India or the secession of a part of the territory of India from the Union, or which incites any individual or group of individuals to bring about such cession or secession; or
(ii) which disclaims, questions, disrupts or is intended to disrupt the sovereignty and territorial integrity of India; or
(iii) which causes or is intended to cause disaffection against India;
The contrast to section 124A IPC can be clearly gauged from the broad wording of section 2 (o) in as much as it does not limit the effect of the provision from speech having an effect of ‘…exciting or attempting to excite hatred…’, just bracketing mere speech as an offense under the section. Moreover, it is important to note that while section 124A IPC is limited to prohibiting speech aimed at ‘hatred’, ‘contempt’ or ‘disaffection’ towards the government, section 2 (o) UAPA is directed towards preserving, inter alia, ‘sovereignty and territorial integrity of India’ and the prevention of ‘cession’ or ‘secession’. In essence, section 2 (o) UAPA envisions a much more profound exposition of proclamation from individuals or an association aimed at denigrating the very core and substance of India’s territorial integrity. No wonder that in recent days, government functionaries have increasingly sought to characterize the event and the students associated with it, as ‘anti-national’, ‘anti-India’ and an attack on the country’s ‘unity and integrity’. Various accusations, carefully crafted, have been hurled at the students for ‘mourning’ or ‘glorifying’ Afzal Guru and for justifying the terrorist attack. The controversy regarding Kashmir has been recounted by the government with attending disdain towards those students for alleged separatist remarks. A common thread which is rather discernible in the government’s remarks are that of ‘…We will not forgive them…’, implying that the students comprise the other group of people, out to dissipate the nation. (For a fuller description of sedition law in India, see here).
Does all of this not seem to fall within the parameters of section 2 (o) UAPA? To an inquisitive mind, it surely does!
NIA Coming in?
A similar disturbing development is occasioning within the enforcement department, whereby our Home Minister has alleged that the students and the event had the backing of Hafiz Saeed, the chief of Pakistan-based Lashkar-e- Taiba. The police have pounced upon the lead and are exploring options to transfer the case to the Delhi special cell and call in the National Investigation Agency. Significant to note here that the NIA has jurisdiction to investigate ‘scheduled offences’ under the NIA Act, and offenses under the UAPA indeed form a part of the schedule.
What might they be charged for now in addition to section 2 (o)?
One can predict, that the government might go to the extent of initiating probes relating to ‘membership of a terrorist organization’ either by ‘association’ or ‘with intention to further its activities’. All organizations expressly listed in the schedule to the act are deemed to be terrorist organizations and LeT falls within the same. By bringing in the NIA, the government is hoping to establish a link between the students, Afzal Guru and the LeT, or at least give itself enough room for carrying out increased searches, seizures and arrest operations, and generally sustaining a sense of fear amongst the student population at JNU. Despite the Supreme Court’s emphasis that mere membership of a terrorist organization, does not automatically justify inference of guilt, powers of the state under the UAPA increase tremendously as opposed to the accused with respect to the grant of bail, continued detention, and immunity from any acts undertaken in good faith.
That a student protest at a University should transform into a political battlefield with the entire wrath of state enforcement directed towards the same, is both disproportionate and reeks of Constitutional impropriety. With the government stealthily playing with the idea of imposing the UAPA on university students, it calls for a far more resolute stance from academics and other institutions, in identifying and opposing such theatrics. UAPA strictures shall certainly change a whole lot of things in the way the students are currently wrestling a hostile government. As much as the present issue is about free speech and reasonable restrictions, it is also about grave government misgivings and administrative persecution.
Kanad Bagchi ([email protected]) is currently pursuing his studies in law at the Faculty of Law, University of Oxford, England.
Image from here.
Read also Law of Terrorism Vis-a-Vis Terrorism of Law and 15 Facts Everyone should know about Indian Sedition Law here.