New Delhi: We all agree that India is one of the worst victims of terrorism in the world. We also agree that this terrorism is aided and abetted from across the border. Yet, we have a section of people in our country which believes that those who publically advocate dismemberment of India should be treated with kid-gloves.
Can we afford to be so ignorant that we would allow these people to create an environment that gives the impression of an unjust Indian state which would make gullible Indian youth cannon-fodder for our enemies sitting across the border?
There are people who say that at least students calling for balkanisation of India should be treated as juveniles and pardoned. There is another section of self-anointed intellectuals who believe that even adults who publically rant about destroying India should not be touched even with a barge pole because they are just using the right to freedom and expression as enshrined under fundamental rights of Indian constitution.
Let's evaluate both these arguments judiciously.
How can a person who openly challenges the unity and integrity be given the benefit of not being old enough to be charged under relevant sections of Indian Penal code (IPC) and Criminal Procedure Code (CrPC)?
Just look at the nature of slogans that were raised at JNU leading to the arrest of JNUSU President Kanhaiya Kumar - Kashmir ki Azaadi tak, jung rahegi, jung rahegi; India ki barbaadi tak, jung rahegi, jung rahegi; Bharat tere tukde honge...inshaallah inshaallah; Afzal tere khoon se...inqilaab aayega; Afzal ham sharminda hain...tere qatil zinda hain etc.
Will such sloganeering not vitiate the minds of more and more young people of this country? How can a person having Indian passport even dare to talk about the destruction of India? Can we turn a blind eye to those who threaten to smear India into pieces chanting religious slogans?
And how can you question hanging of Afzal Guru? Questioning his hanging means you are questioning the Supreme Court. Who will have a final say in such cases? Will criminal cases in India be decided by Kangaroo courts or courts of law?
Should the Indian state not bring to book those, irrespective of their caste, creed, religion and of course age, who challenge the very idea of India?
And what is this idea of India? If our constitution is read properly, the idea of India clearly rests on three fundamental pillars – belief in democracy, respect for judiciary and unflinching commitment to unity, integrity and diversity of this country.
Those who raised these obnoxious slogans in JNU have clearly insulted this idea of India and they must be booked under the provisions of law of the land. You have every right to criticise a political party including BJP and a cultural organisation including RSS but how can you be allowed to use derogatory language against the nation?
As far as charging Kanhaiya under ‘sedition' is concerned, it remains debatable because it has been pointed out that there is no clear proof that he chanted those slogans.
Advocate DB Goswami, Supreme Court lawyer, however, believes that there is nothing wrong in imposing sedition charges against Kanhaiya Kumar even if he did not chant those objectionable comments himself.
“Even if he did not make these statements, how did it matter? Section 34 of the IPC talks about common intention. For example, if a dacoity is committed in the house of a person and one person stands outside, he is equally liable. Apart from that there is a section 149 that deals with unlawful assembly. Even if you don't have an intention but you have the knowledge that some people are doing an unlawful act, you are equally liable. Where is the scope for going out of this person?” Advocate Goswami said.
“Unfortunately, the people who are against the imposition of ‘sedition' charges against Kanhaiya Kumar under section 124(A) have very less knowledge about IPC and CrPC. The question is not whether he made those statements, even if he was part of that assembly, he is equally responsible. I have cited all these points from the previous judgements of Supreme Court,” he added.
However, those who actually raised these slogans can't be spared under any circumstance. There are enough laws other than sedition under IPC and CrPC that can be used against these people and Police has every right to exercise these legal provisions.
We have an independent judiciary and therefore, if anybody believes that he or she is being victimised then that person can challenge the actions of the state and police in a court of law. Our constitution gives us this right. Let's cherish it, respect it.
Here it must be added that the attack on Kanhaiya Kumar by lawyers of Patiala House Court is equally condemnable. Those who did that have clearly committed a criminal offence and must be punished in accordance with the law of the land.
Let's come to that section which believes that one has the right to say anything and everything because Indian constitution provides us with the fundamental right of freedom to speech and expression. These intellectuals always tend to forget that under Indian Constitution, right to freedom of speech and expression is not absolute. It comes with clear-cut restrictions.
Let's first understand what does Article 19 of Indian constitution says.
Article 19 (1)(a) says “All citizens shall have the right to freedom of speech and expression.” However, Article 19(2) makes it clear that this article doesn't stop the state from making any law that imposes reasonable restrictions on the exercise of the right conferred in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offence.
Obviously, the right to freedom and speech is not absolute. The constitution itself empowers the state to frame laws to stop misuse of this fundamental right and IPC and CrPC have many such laws already in place.
Whether imposition of sedition charges against Kanhaiya Kumar is right or not is something that will be decided by the courts. There are many other laws, equally stringent, under which these people can be tried.
“In addition to section 34 and 149, there is another section 153 that deals with giving provocation with intention to cause riots. Suppose you are making a provocation on another party and if the other party comes and starts doing the rampage, you will be responsible for that,” Advocate Goswami points out.
Under no circumstance, one should be allowed to create a frenzy demonising the Indian state for initiating legal action against those who called for destruction of the country. They have created a criminal offence and they must be tried under relevant laws, not necessarily sedition.