On January 14, nearly three yearsKanhaiya Kumar was arrested and slapped with sedition charges along with other students of Jawaharlal Nehru University (JNU), the Delhi Police filed a charge sheet before the Patiala House Courts in the capital. While images of the 1,200-page charge sheet being carried in trunks caused a furore on social media, selective leaks by the police, aired and published by some media houses, added fuel to the fire in an increasingly polarised discourse on nationalism. These news outlets, perceived to be part of the right-wing media, were the same ones that created an atmosphere of hatred towards the student community and were boycotted by JNU students for that reason.
The charge sheet accused Kanhaiya Kumar, Umar Khalid and Anirban Bhattacharya of sedition, voluntarily causing hurt, unlawful assembly, rioting and criminal conspiracy under Sections 124A, 323, 143, 147, 149 and 120B of the Indian Penal Code (IPC). Apart from eyewitness accounts, the charge sheet relied heavily on video footage of the incident of February 9, 2016, that was aired by some TV channels. According to the Delhi Police, the footage was authenticated by a forensic laboratory. Kanhaiya Kumar was accused of leading the students who were raising anti-national slogans while Umar Khalid and Anirban Bhattacharya were accused of raising the slogans. Umar Khalid was additionally accused of forgery. Apart from these three, seven Kashmiri students—Aqueeb Hussain, Basharat Ali, Mujeeb Hussain Gattoo, Muneeb Hussain Gattoo, Umair Gul, Rayees Rasul and Khalid Bashir Bhat—were also charged under the same Sections. The evidence against them was largely the video footage of the event and their mobile phone location which indicated that they were present in JNU at the time of the incident.
Thirty-six other students were named as accused but sanction to prosecute them was not sought because of lack of sufficient evidence against them. Lawyers familiar with the case said it looked unlikely that they would be charged and summoned by the court unless the Public Prosecutor insisted on it or the judge felt the need to do so. All the students who were politically active on the campus at the time, including Rama Naga, Anant Prakash, Banojyotsna Lahiri, Chinmaya Mahanand, Shehla Rashid Shora, Mohit Pandey and Aparajitha Raja, figure on the list. Many of the students have since graduated from the university and are pursuing higher studies elsewhere or are working.
‘Bogus case’
They all maintained that there was not even a shred of truth in the allegations. They felt that the real intention behind the filing of the charge sheet before the 2019 Lok Sabha election lay in drumming up public opinion against the so-called “anti-nationals”. Calling it a bogus case, the JNU Students Union (JNUSU) said in a statement that it was “a clear case of vendetta and well-planned instruction from the Prime Minister’s Office to whip up a frenzy and browbeat those who have emerged as critical voices to the Prime Minister and exposed the BJP government’s utter failure in running this country, just before the Lok Sabha elections due to take place this year.”
Umar Khalid told Frontline that the first information report (FIR) rested on shaky grounds and that sloganeering did not amount to sedition as per earlier judgments given by the Supreme Court. “The case for sedition has not been substantiated as it is defined in the current law,” he said, adding that this case was not about legal prosecution but about building a narrative of anti-nationalism which would be played out over the next two months on prime-time television.
The JNU community, however, was better prepared to deal with the political onslaught this time around compared to three years ago when Kanhaiya Kumar was picked up by the police overnight and the other students were hounded by the press, said Amutha Jayadeep, joint secretary, JNUSU. “The students are closely watching the case and even those students who were unsure three years ago now know that we didn’t do anything wrong. The constant attack on the JNU community has brought the students, teachers and other members closer together, except for the administration, which remains hostile.”
After 2016, the campus environment drastically changed as students were put under surveillance and the Akhil Bharatiya Vidyarthi Parishad (ABVP) was given a free hand to instigate violence on several occasions, she added. Pradeep Narwal and Jatin Goraya, former office-bearers of the ABVP who had resigned in 2016 after the brouhaha over the February 9 incident, held a press conference and alleged that the 2016 incident was planned by the ABVP to divert attention from Rohith Vemula’s suicide. According to them, they were pressured to defend the ABVP because they were Dalits and that triggered their resignation from the organisation. They also alleged that the students who raised the “Pakistan Zindabad” slogans were ABVP members. They said that if the video footage was not doctored, then the charge sheet should also have named the ABVP students who were present at the February 9 event. The WhatsApp group of ABVP had discussions about how to “blow up” the incident, they claimed.
Former JNUSU presidents and office-bearers pointed out that the names of the seven Kashmiri students were being mentioned for the first time, thus exposing the politically motivated timing of the filing of the charge sheet. “These names had been expediently left out three years ago, when their inclusion might have embarrassed the PDP [J&K Peoples Democratic Party], which was then the BJP’s coalition partner in Jammu and Kashmir. These Kashmiri students are rendered especially vulnerable by this fabricated ‘sedition’ case to potential profiling, hate speech, discrimination and harassment,” the JNUSU said. People were concerned about how the case would pan out for them. Said a student leader on condition of anonymity: “Whether we like it or not, the fact remains that identity is a crucial aspect of who is an easier target for the state, whether it is a Muslim, a Bihari Bhumihar or a Bengali Brahmin. A Kashmiri Muslim figures much lower in that scale and hence is the most vulnerable. At the same time, there is a debate going on and there is a dilemma as to what extent student resistance movements should be influenced by state institutions, including the courts.”
Even as the student community thrashed out specific ways of showing solidarity with and support for the Kashmiri students, and the event which triggered the row—a remembrance meeting of poetry, speeches, talks and songs on the JNU campus on February 9, 2016, on the secret execution of Afzal Guru in 2013, a Kashmiri convicted of conspiring in the 2001 attack on Parliament House—became a taboo topic, former Chief Minister of Jammu & Kashmir, Mehbooba Mufti, spoke about both the issues. In a series of tweets, she said: “No surprises here. We are months away from the 2019 general election and, like always, using Kashmiris to score extra political points with the Indian electorate has become somewhat of a pre-requisite....Timing of the charge sheet couldn’t be any more suspicious. When UPA [United Progressive Alliance] was in power, it decided to send Afzal Guru to the gallows and to this day J&K is paying a price.”
The former IAS officer from Srinagar, Shah Faesal, also tweeted: “Invoking Sedition law against Kanhaiya Kumar and eight others is a travesty of free speech. Sec 124A IPC is totally at odds with the spirit of the time. World has moved on. India has grown up. It is time for our governments to grow up.”
Procedural lapses
Meanwhile, even before the case began, it has run into trouble. Since the case is before a Delhi court, it is a procedural requirement for the Delhi Police as per the Code of Criminal Procedure to get a sanction for prosecution from the Delhi State government, which is headed by Arvind Kejriwal of the Aam Aadmi Party. The Delhi government has been supportive of the JNU students’ movement. Since the mandatory sanction was not obtained before the filing of the charge sheet, Chief Metropolitan Magistrate Deepak Sherawat pulled up the Delhi Police for procedural lapses and said that the court would be unable to take cognisance of the case until the sanction was obtained. AAP government officials were quoted in the press as saying that since they had three months to decide whether or not to give sanction for prosecution for the case, they were taking legal counsel and moving cautiously. If, within three months, they are not able to take a decision, then, as per the law, the sanction would be automatically deemed granted.
The reason why such a sanction is needed is that these are offences where the victim is the state, according to Prof. Anushka Singh of Ambedkar University, Delhi, who has written a book on sedition. “So, the legal understanding is that the law doesn’t use the vocabulary of the state as the victim, but the law definitely says that it is to discourage unauthorised persons to initiate prosecution in cases that affect the state. The requirement of sanction is to ensure that this is a case where the state sufficiently feels threatened and wants prosecution to be initiated,” she said.
In the meantime, adding to the political intrigue, the Delhi Law Minister, Kailash Gahlot, issued a show cause notice to A.K. Mendiratta, Principal Secretary (Law) in the Central government, for clearing the sanction to prosecute without his approval, and wrote to the Delhi High Court Chief Justice apprising him of the matter. How the case pans out will depend on several factors, including Kanhaiya Kumar’s plans to contest the forthcoming elections from Begusarai in Bihar, which the BJP would want to thwart.
The other important issue at stake is the vilification and hounding of students across the country that has been going on since the BJP came to power. The words “dissent” and “freedom of speech” have acquired a negative connotation in the public sphere. With religious nationalism gaining ground over constitutional nationalism and the state and its functionaries representing the idea of the nation, the ambit of what was considered anti-national has expanded. Televised media trials have ensured that raising slogans on the ideals of freedom or Azadi or shouting halla bol , or merely mentioning the faults of the Central Reserve Police Force (CRPF) and the Indian Army are considered anti-national activities. The JNU lecture series, which took place over two months on the steps of the administrative building of the university soon after the clampdown in 2016, sought to throw light on some of these issues and stress that dissent did not emerge in a vacuum but was the creation of a system where power became oppressive.
“A dissenter, to my mind, is someone who articulates this politics of citizenship where you’re looking to articulate what it might mean to be committed to a set of principles—equality, justice, dignity, etc., rather than to the trappings of a formal state; and that’s the reason why any criticism that’s grounded on substantive politics is negated by the symbolic politics of nationalism,” said Lawrence Liang, professor, legal campaigner and co-founder of the Alternative Law Forum.
The filing of the charge sheet at this juncture is merely part of the efforts for the complete saffronisation of society, which would be impossible to achieve until university spaces are forced into submission. It was a fabrication and a desperate measure, according to Aparajitha Raja, who was president of the JNU unit of the All India Students Federation. She told Frontline that these were antics using state mechanisms and institutions to clamp down on any source of dissent that could challenge the ruling dispensation. “This should not be seen in isolation and one should not be consumed by JNU exceptionalism. JNU, of course, has its own socio-cultural importance but it should be seen as part of a larger design. Universities have traditionally been spaces of dissent and independent thinking but post-2014, the student community has been seen as an oppositional force to the BJP. There has been churning in many universities, including in Kolkata, Manipur, Odisha and Pune. All of these are linked. The ongoing clampdown is aimed at shutting down every space and every challenge against the BJP.”
It may be recalled that leading up to the February 2016 event in JNU, the liberal ethos of educational institutions across the country had come under attack, in Indian Institute of Technology Madras; Film and Television Institute of India (FTII), Pune; Jadavpur University, Kolkata; and Allahabad University, Uttar Pradesh. There was the sudden end to non-NET fellowships by the University Grants Commission. Movements such as the one in the FTII and the Occupy UGC sprang up in the public domain. The struggle of the students of the University of Hyderabad that culminated in the institutional murder of Rohith Vemula became a tipping point for students’ movements and the subsequent events in JNU led to an Emergency-like crisis.
Universities as spaces of dissent
Liang said that in the entire sedition debate, it was important to remember that while disaffection was criminalised under the Sedition Act, affection could not be manufactured. “The courts have been unequivocal in their belief that it is only free speech that guarantees democratic rights and democratic institutions. One way of thinking about the relationship between free speech and politics is to think of it as what allows or gives you a certain breathing room. It provides a safe space for you to exercise any political opinion that you want—and there have been no safer spaces until now than universities in this country as the safeguards for this right to dissent—and on that count JNU, if universities are a mirror of the health of a democracy, presents an extremely healthy picture in which there is a diversity of opinion, a healthy regard for disagreement, and a tradition for dissent.” With the filing of the charge sheet, Indian students have joined the ranks of students in Bahrain, Egypt, Ethiopia, Iran, Sudan, Turkey, Zimbabwe and elsewhere who are at the receiving end of arbitrary arrests, detentions and hounding by an authoritarian state.
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