Skip to main content

The ‘sedition’ row at JNU: What law says, what has Delhi Police omitted

By Venkatesh Nayak*
Jawaharlal Nehru University (JNU), where I spent a decade studying and researching history, is in the news all over again. I remember, in those days, a leading English language national daily would advertise itself as being an indispensable part of the breakfast served at JNU every morning. Today efforts are being made to tarnish the legacy and the image of this reputable university whose graduates are part of the rank and file of many a political party and also occupy the upper echelons of the public administration. While some have called for changing its name while others have called for its shut down.
More specifically, a handful of students have been arrested by the Delhi Police on charges of ‘sedition’. The Police are reported to be conducting searches across the campus entering student’s hostels in what is primarily a residential University. The purpose of this email alert is not to conduct an investigation or a trial into the events that transpired on 09 February, 2016 and the reactions thereafter – that is the job of the police and the courts, which unfortunately, some segments of the media have usurped, pronouncing their opinion on the supposed ‘guilt’ of the accused even before the law takes it own course.
The crucial questions which many concerned citizens and segments of the more restrained media are asking is – whether the reaction to the incidents that occurred on the evening of the 9th of February is disproportionate and whether students carrying out a peaceful procession raising slogans that did not conform to the ‘politico-ideological beliefs of a prevalent variety’ should be treated as ‘criminals’ to be prosecuted for ‘sedition’ and ‘anti-national’ activities.
Frankly, a country that rightfully takes immense pride in its six-decade long democratic tradition must repeal all laws that criminalise free speech and expression exceeding the reasonable restrictions imposed on that fundamental right in Article 19(2) of the Constitution.

Why are the FIR and the details of arrests made, not officially placed in the public domain?

The media reported that the Delhi Police registered a First Information Report (FIR) at the Vasant Kunj North Police Station on 11 February – a day after the incident. The Delhi Police has a dedicated page on its official website for the proactive disclosure of FIRs registered under its jurisdiction. This transparency measure was initiated under the directions of the Delhi High Court in 2010 in the matter of Court on its own Motion through Mr. Ajay Chaudhary vs State [2011 CriLJ 1347]. However the FIR relating to the incidents at JNU could not be located on this website despite our best efforts. Under the regime of transparency established by The Right to Information Act, 2005 (RTI Act) media reports are the only source of information regarding the contents of the FIR registered by the Delhi Police.
In 2011, the Delhi High Court had ruled that FIRs containing ‘sensitive matters’ may be exempted from proactive disclosure as an exception. But the concerned Deputy Commissioner of Police must issue a speaking order as to why such an FIR will not be disclosed and send a copy of the same to the Area Magistrate. The Delhi Police has not publicly stated its reasons for keeping the ‘JNU FIR’ confidential despite the fact that the issue has become a matter of widespread debate not only in New Delhi but also across the country and elsewhere. In addition to the directions of the Hon’ble Court, the Delhi Police is under a statutory duty to volunteer reasons for non-disclosure of the FIR under Section 4(1)(c) of the RTI Act.
The result of maintaining this confidentiality is that many ‘facts’ as reported to the police leading to the registration of the FIR two days after the incidents at JNU are not clear, especially whether any student was actually named the ‘accused’ in relation to the allegations or not. Public access to this kind of information is crucial to determine whether the actions of the Delhi Police in arresting the students and also demanding their custody (instead of rendering them to judicial custody) is justified and proportional or not.
Second, the Delhi Police is not complying with the law of the land in another manner. In 2009 Parliament amended the arrest-related provisions of the Code of Criminal Procedure, 1973 (CrPC) requiring every State Police Headquarters to prepare a database of persons arrested by the police and make it accessible to the public. Section 41C of the CrPC which became operational in 2010 makes it mandatory for the Delhi Police to create a database containing details such as the name and contact details of every person arrested, the name and designation of the police officer making the arrest, the nature of offences for which the arrest is being made and publicise them for the reference of the people.
This transparency measure gives statutory cover to the directions issued by the Hon’ble Supreme Court of India in the matter of D. K. Basu vs. State of West Bengal [AIR 1997 SC 610] to curb the abuse of the powers given to the police to take away the liberties of an individual by arresting him/her. However, the Delhi Police has not created and publicised such a database of arrestees till date, nor has it reported the arrest of the students at JNU through its press releases. Somehow respect for and obedience to the law seems to be the responsibility of ordinary citizens only while law enforcement agencies can go scotfree.
Third, Section 124A of the Indian Penal Code, 1860 (IPC) which describes actions that are to be treated as ‘sedition’ prescribes two kinds of punishment – life imprisonment with or without fine or imprisonment up to 3 years with or without fine. What punishment may be given under which circumstances is for the courts to decide on the basis of the facts and circumstances of each case. It is not clear whether the Delhi Police believes that the accused in the JNU case will attract the life term or the shorter prison term of 3 years. This is important because under Section 41(1)(b) of the CrPC an individual may be arrested for an offence which entails punishment of less than 7 years without a warrant from the Magistrate, only if the police officer has reason to believe that such person has committed the offence and that such arrest is necessary to:
  • prevent such person from committing further offence; or
  • for proper investigation of the offence; or
  • to prevent such person from destroying or tampering with the evidence; or
  • to prevent such person from offering inducements to witnesses of the crime in order to dissuade them from deposing before the courts; or
  • for ensuring such person’s presence before a court whenever required.
In all such cases of offences where the maximum punishment is 7 years or less, the police officer making the arrest must record reasons for the arrest in writing. In all cases where the maximum prison term attracted is more than 7 years or life term or capital punishment, there is no duty to record reasons for arresting a person without warrant. This change has been made to the law on arrest in 2009- effective since November 2010, in order to prevent the abuse of the power of arrest by the police. The abuse of powers of arrest results in the unreasonable curtailment of the constitutionally guaranteed freedoms of such a person. So unless, the Delhi Police is aiming to get the accused students in JNU put away for life, they must record reasons for making the arrest and publicise this also along with other details of arrest according to Section 41C of the CrPC.

*Programme Coordinator, Access to Information Programme, Commonwealth Human Rights Initiative (CHRI), New Delhi.Excerpts. Click HERE for full article

Comments

TRENDING

Constitution day makes us remember and rethink the values that India stands for

By Dr. Kapilendra Das*  India, also known as Bharat, was liberated from British rule and gained Independence on August 15, 1947. So every year on 15th August we celebrate Independence Day throughout the country. The Indians felt the taste of freedom, but there were no rules and regulations to govern the country for which British rules were effective up to January 25, 1950. To govern India, the draft constitution was prepared by the Drafting Committee which was published in January 1948, and the same was finally adopted by the Constituent Assembly on 26 November 1949, the day of an important landmark in India’s journey as an independent, Sovereign, Socialist, Secular, Democratic, Republic. The constitution so adopted came into force on 26 January 1950. To memorize 26 January, every year we observe Republic Day throughout India. To mark rethinking and remembrance of the day of adoption of the constitution of India, 26 November has been celebrating as “Constituti

Integrating biodiversity for poverty removal still not binding for this UN body

Reacting to a statement of the executive secretary of the Convention on Biological Diversity ( CBD ), United Nations, Elizabeth Maruma Mrema, on the occasion of the International Day for the Eradication of Poverty, which fell on October 17, well-known Thiruvananthapuram-based ecologist S Faizi has objected to the CBD’s plan for “effective integration of biodiversity for poverty eradication”. *** I compliment you for issuing this statement . However, I am disappointed to see that the CBD COP's output on poverty and biodiversity, namely the Chennai Guidance is not even referred to in your statement, particularly so since the 12th COP has asked the Executive Secretary to "continue the work requested by the Conference of the Parties in decisions X/6 and XI/22, for the effective integration of biodiversity for poverty eradication and development, taking into account also the related decisions of the Conference of the Parties at its twelfth meeting" and to promote the Chennai

Seventh most vulnerable nation, effects of climate change can be seen in Bangladesh

Mashrur Siddique Bhuiyan*  From November 6–18, 2022, Sharm el-Sheikh, Egypt is hosting the 27th Conference of Parties (COP27) of the United Nations Framework Convention on Climate Change. This two-week climate conference is critical for the globe because it occurs at a time when nations are coping with a global energy crisis, the conflict in Ukraine, rising inflation rates, and dwindling funding for climate adaptation. It also has great significance for Bangladesh, as the country's ability to maintain its economic growth depends on raising the necessary finances for urgent climate action and mitigation. This year’s theme is "Delivering for People and the Planet," which aims to hasten global climate action by lowering greenhouse gas emissions, fostering resilience and preparing for climate change's unavoidable effects, and increasing the flow of climate finance to developing nations. The goals of COP27 are based on the outcomes of COP21, which was held in Paris in 2015

Unsung, tens of Morbi youth of local fishing community saved many, many lives

By Rajiv Shah  It was indeed a treat to listen to Bhavik Raja, who spoke at a meeting of the Movement for Secular Democracy the other day in Ahmedabad. Speaking in chaste Gujarati, Raja recalled his childhood days in Mobi when he and his friends would often go to the town's Jhulto Pul (Hanging Bridge) in free time. I listened to him online. The bridge, which should have been given a heritage status, was handed over to the owners of a watch-making tycoon for repair. The repair was carried out so shoddily that it broke down in less than a week after it was opened for general public, leading to the death of more than 140 persons, many of them children. Raja, who formed a group of three-person activists' team on a fact-finding mission to Mobi, said, what isn't taken note of is how tens of youth, belonging to the local Muslim fishing community, jumped into the river and saved many, many lives. It's a marshy river, and to navigate in there is an extremely difficult exercise.

Zakir Naik tumult, Catholic Church power abuse: will Anwar Ibrahim save Malaysia?

Anwar Ibrahim By Jay Ihsan*  Anwar Ibrahim, a hardcore reformist who took a punch to his eye in 1998 from then inspector-general of police, Rahim Noor, has finally been given the mandate by Malaysians to serve as the nation's 10th prime minister. Anwar knows too well the burden of staying true to both trust and faith the people have in him requires every once of commitment and dedication. The question is will he be apologetic for his transgressions enroute to "rebuilding" Malaysia? In his overzealousness to get the job done, Anwar, 75, needs to safeguard every bit of gumption to address prickling issues plaguing the safety of the nation especially those involving communal sensitivities. For one, dare Anwar get rid of terrorist hate preacher and fugitive Zakir Naik for inciting religious unrest in Malaysia? In November 2016, India’s counter-terrorism agency filed an official complaint against Naik, holding him responsible for promoting religious hatred and unlawful activi

Ukraine war revitalizes silent competition between China and Russia in Central Asia

By John P. Ruehl  At the recent Commonwealth for Independent States (CIS) summit held on October 14 in Astana, Kazakhstan, Tajik President Emomali Rahmon expressed previously inconceivable remarks. His public admonishment of Russian President Vladimir Putin to treat Central Asian states with more respect showed the growing confidence of Central Asian leaders amid Russia’s embroilment in Ukraine and China’s expanding regional influence. After coming under Russian imperial rule in the 18th and 19th centuries , five Central Asian states—Kazakhstan, Kyrgyzstan, Tajikistan, Turkmenistan, and Uzbekistan— emerged independent from the Soviet Union in 1991. While these countries remained heavily dependent on Russia for security, economic, and diplomatic support, China saw an opportunity in their vast resources and potential to facilitate trade across Eurasia. Chinese-backed development and commerce increased after the Soviet collapse and expanded further after the launch of China’s Belt an

Adequate attention not paid on changing human life to realize climate change aim

By Bharat Dogra  Climate change is one of the biggest challenges of our times. It has to be checked as a matter of highest priority. Despite this adequate attention has not been given to how human life must change to realize this objective. We know that fossil fuels must be phased out and replaced by renewable energy. But is renewable energy capable of meeting the present day massive energy requirements, along with the increase taking place? Even if it is, what are the implications if renewable energy has to be scaled up to this level, and at such gigantic level won’t renewable energy also have very adverse consequences, although of a different kind? Such questions make the situation more complicated, but these have to be faced. So let us try to approach the issue in a somewhat different way. Since the daily consumption of various goods and utilities involves the use of fossil fuels in various ways, if all excessive, wasteful and harmful consumption can be given up, this will also lead

Much like earlier meetings, COP 27 fails to find real solution to overcome climate crisis

By NS Venkataraman* COP 27 in Egypt was organized with much fanfare and expectations, similar to COP 26 at Glasgow that was organised in 2021. While nothing significant was achieved in combating the climate crisis subsequent to the Glasgow Meet, one thought that COP 27 would be more productive and would find some real solutions to overcome the climate crisis. Leaders and representatives from most of the countries participated in the COP 27 including the President of USA, Prime Minister of UK and so many others. Cosmetic speeches were made by the leaders, committing themselves to save the world from global warming and noxious emissions. Finally, resolutions would be adopted after representatives of all countries put their heads together . With no tangible agreement about the fundamental issues, the resolutions would inevitably end up as face saving documents. During COP 27, the UAE President clearly said that the UAE would not reduce production of crude oil and natural gas. In t

Bangladesh to import diesel from India: Win-win situation amidst economic turmoil?

Kamal Uddin Mazumder*  Bangladesh and India had been sharing friendly and warm relations since 1971. Both of the countries have been kith and kin through crisis moments. Bangladesh has witnessed India’s support from the liberation war to the Covid-19 pandemic. As now the world is facing the repercussions of the pandemic and the Russia-Ukraine war through the economic crisis and the energy crisis, India is still with Bangladesh through a cooperative framework. The government of Bangladesh had decided to cut down its fuel consumption to keep up with the global energy crisis. It was necessary to import fuel at the cheapest possible rate to mitigate the crisis. Some talks had been initiated with countries like Saudi Arabia, Malaysia, and Brunei but India came forward first. The geographical proximity and the longest shared border had ushered multidimensional ways of cooperation and collaboration in many areas. The import of diesel from India through the pipeline is one of the prime example

Maldives migrants' death: Govt bodies haven't done enough for workers' safety, security

By Kirity Roy*  We have been notified by the media that a hazardous fire, which erupted in a cramped neighborhood of Maldivian capital Male, has killed 10 migrant workers including 9 Indians. We are much aggrieved by this incident, and sending our heartfelt condolences to the families of the victims. Many are missing. Almost half the population in the Maldivian capital constitutes of migrant workers, and out of them many are Indians. During the COVID-19 pandemic it was reported by many media outlets that due to the cramped and unsuitable living conditions, the disease spread more rapidly among the foreign workers than anywhere else in the country. This brought the light upon the serious housing problem for the migrant workers in the country. The current incident shows that the Government bodies have not done enough to ensure safety and security for the workers. While the United Nations have established the rights of the Migrant workers through the International Convention on the Prot