The ‘sedition’ row at JNU: What does the law say and what has Delhi Police omitted to do

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:

  1. prevent such person from committing further offence; or
  2. for proper investigation of the offence; or
  3. to prevent such person from destroying or tampering with the evidence; or
  4. to prevent such person from offering inducements to witnesses of the crime in order to dissuade them from deposing before the courts; or
  5. 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

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