India is bitterly divided about the arrest of the JNU students’ union (JNUSU) president, Kanhaiya Kumar. The tendency to paint the issue in black and white is regrettable. For detractors of JNU, it is a clear case of sedition. For supporters, it is about the autonomy of a university and freedom of speech. Both are absolutist positions, and from the point of view of a concerned police officer and citizen, both are an assault on the public interest. Unfortunately, our shrill public discourse allows for few nuances. It is now a debate less about the freedom of speech and more about the freedom of screech. Caught in the middle is Delhi Police and its leadership. It has been called a stooge of the ruling party and worse. On the other side, people are decrying its actions as too little, too late.
The Constitution, CrPC and IPC do not treat freedom of speech as absolute and subject it to various restrictions. Article 19(2) provides for reasonable restrictions. The CrPC provides for preventive arrest when a breach of peace is apprehended, whereas the IPC contains several sections that provide for punishment for different types of hate speech. India is not unique in providing for legal restrictions on certain types of offensive speech. Of course, the sedition law is a legacy of the Raj. But successive governments of all political persuasions haven’t removed it from the statute books, and have invoked it. This says something about its continued relevance. In Kedar Nath,
the Supreme Court not only circumscribed Section 124A, it also held it to be constitutionally valid. This was in 1962, decades before Punjab, Kashmir and countless other terror strikes that India has faced.
The present case is likely to reopen the logic of that judgment. There is every possibility that if brought to trial, this case, too, will eventually wind up in the SC. Whether the court will widen or narrow the scope of Section 124A is hard to say. As things stand, Delhi Police has taken cognisance of a complaint, registered an FIR, arrested one accused after preliminary investigation, and produced him before a court of law. The magistrate having jurisdiction took cognisance and remanded him twice to police custody. The investigation is on. Given that remand had been granted twice, it appears that the magistrate was satisfied that the initial FIR and investigation contain sufficient ingredients for criminal prosecution. As of now, Kumar has been sent to 14 days of judicial custody. Delhi Police, of course, has the legal authority to finally chargesheet him in the same or different section, or to file a closure report and drop the charges altogether. Procedurally, Delhi Police has acted in accordance with the law. Of course, Kumar and his supporters have the liberty to approach higher courts and seek the quashing of the FIR.
Many have questioned the motives of Delhi Police. However, they forget that the two duties of the police are the prevention and detection of crime, and the maintenance of law and order. The police may be faulted for applying Section 124A. However, they have a duty to prevent and preempt the possible consolidation of anti-national elements in a university in the national capital. We have suffered enough terror strikes for the police to be a bit paranoid and err on the side of caution. If Section 124A is unwarranted, that can be rectified by
the investigating officer or the courts. But are we going to question the very wisdom of acting on such a sensitive issue? At what point would police action be justified? Doesn’t decrying the “murderers” of Afzal Guru also amount to criminal contempt of the SC? Today, it is merely about shouting offensive slogans, tomorrow it could be about merely allowing terrorists safe haven, and then about active participation in terrorist activities. Does the free-speech dimension of this case trump every other consideration?
Policing a democracy was never going to be easy. But it would be nice if, for once, on such an important issue that concerns both the health and safety of our democracy, the police were given the professional freedom and space to act in accordance with the law without being reviled or demonised.