Kanhaiya Kumar Vs State of Delhi

Introduction  

The approach of thinking the circumstances, way to approach the culmination is lesser important than the ideology which you prefer to choose for your further life. There would not be any difficulty to spend your entire life for your mission but at the same time, it shall always kept in mind that you are being brown up by the society, by this country and by the citizens of this country. There shall not be any act, instigation about any act which would reflect against the interest of society, citizens and our country. Here the Law of Crime get revealed, as any act contrary to the interest of society, citizens and country that would be an offence under Criminal Law and you have to face the consequences, irrespective of your ideology as all the act, activities would be covered under the Constitution of India. The rights are always subject to the reasonable restrictions as expressed therein.

Here is the duty of the Government to be strict parents and shall not allow their kids to do such foolish things which would ruin their fate and also of the nation which is way to total, permanent destruction.

   

Relevant legislations, Legal Provisions and precedents relied on 

• Relevant Legislations and Provisions

1. The Constitution of India

2. The Indian Penal Code, 1860

• Precedents relied on 

1. Kalyan Chandra Sarkar vs. Rajesh Ranjan @ Pappu Yadav & Anr. (2004) 7 SCC 528

2. State through C.B.I. vs. Amarmani Tripathi AIR2005SC3490

3. Hardik Bharatbhai Patel vs. State of Gujarat & Ors. 2016 (1) RCR (Criminal) 542

4. Shreya Singhal vs. Union of India (2015) 5 SCC 1

Brief Facts of case and discussion

• Brief Facts 

1. On 9th February, 2016 a programme was proposed to be organised under the title ‘Poetry Reading – The Country Without A Post Office’ at Sabarmati Dhaba, Jawaharlal Nehru University. Since the title of the programme did not suggest anything objectionable, permission was granted. When the posters of the said programme revealed the topic of the programme to be organized that evening, the authorities at JNU acted swiftly by cancelling the permission and communicating the same to the organizers as well the security staff. What followed thereafter is in FIR No.110/2016 under Section 124-A/34 IPC at PS Vasant Kunj North and case is under investigation.
2. The petitioner seeks his release on bail in case FIR No.110/2016 asserting that the charge of sedition levelled against him is false as he has never made any seditious utterances or raised any anti-national slogans on 9th February, 2016. He claimed that there was no incident of violence after the alleged incident of raising alleged anti-national slogans. Rather the JNU Campus remained peaceful and no disturbance was reported from within the campus. The so called video recording of the incident by some channels has been reported to be doctored by the Press. He has been remanded to police custody thrice and has also joined the investigation. He is no more required for investigation of this case.
3. In his speech delivered on 11th February, 2016, he has projected himself to be a law abiding citizen having full faith in the Constitution and claimed to be a public figure and member of AISF Students Political Party affiliated to Communist Party of India. He is also President of JNU Students Union. He is pursuing Ph.d. at School of International Studies, Jawaharlal Nehru University. He has deep roots in the society. He is the victim of conspiracy by certain vested elements who are fabricating evidence against him. There is no possibility of his being capable of tampering with the evidence. The petitioner asserts his fundamental rights guaranteed under Article 19(1)(a) of the Constitution of India on the ground that the utterances (speech or slogans) attributable to him cannot be termed to be in violation of any law and as such he has not committed any offence. The petitioner has agreed to abide by the terms and conditions that may be imposed in case he is ordered to be released on bail. Detailed status report has been filed by the State which also includes slogans raised and some of photographs of the event.
4. Mr.Kapil Sibal, Senior Advocate for the petitioner has denied the contentions raised in FIR and further submitted that role of the petitioner Kanhaiya Kumar is limited to the extent that he reached the spot in his capacity as President of JNU Students Union, on coming to know about the tension between the two groups. After the situation came under control, he left the spot. There was no untoward incident leading to violence in the campus on that day. The speech on 11th February, 2016 cannot be termed as anti-national and whatever he has stated in that speech is within his right to freedom of speech guaranteed under the Constitution of India.
5. Mr.Tushar Mehta, ASG has submitted that on 8th February, 2016 permission was granted to them to conduct the programme from 5.00 pm to 7.30 pm on 9th February, 2016. The JNU authorities on getting the information that in the guise of cultural function, some anti-national activities were to take place, cancelled the permission and the organising group was duly informed. The reason being that the posters about the proposed programme were against the judicial killing of Afzal Guru and Maqbool Bhatt and have been put up at all the hostels and these activities were likely to disrupt the peace and harmony of the campus. Apprehending this, Chief Security Officer, JNU as well local police was informed. The shouting of anti-national slogans continued unabated which were opposed/countered by the other group of students by shouting slogans in support of the nation. The students from both the groups had at many times engaged in verbal as well as physical jostling and heckling. This situation led to law and order problem which disturbed the public order in JNU campus. The situation was brought under control by 8.30 to 9.00 pm. Both the groups reached Ganga Dhaba where some of the students leaders addressed the assembly before dispersing.
6. On the basis of telecast by Zee News on 10th February, 2016 about the incident at JNU on 9th February, 2016, raw video footage was obtained from that channel and thereafter FIR was registered. Some of the persons in the photographs are covering their faces. Their identity and links are not known to the investigating agency. Posters having photographs of Afzal Guru have been held by the students. The posters for the programme to be organised on 9th February, 2016 is with the heading ‘Against the judicial killing of Afzal Guru & Maqbool Bhatt’. The permission was applied by co-accused Umar Khalid on the prescribed proforma for ‘Poetry Reading – The Country Without A Post Office’ and it was only from the posters circulated on 9th February, 2016 that the authorities at JNU came to know about the nature of the programme being anti-national resultantly permission was withdrawn. State has referred to the statement of various witnesses recorded under Section 161 CPC to describe the role played by the petitioner in organising as well as during the event. Merely because the petitioner is not a signatory on the application form for seeking permission for the programme, is not sufficient to infer that he has nothing to do with the event. As per the statement of witnesses, which was not wanted to be disclosed, the petitioner also talked to the concerned authorities showing his resentment about the cancellation of the permission and his active participation in the event, which led to a situation that police had to be called and both the factions of the students raising slogans were separated. The speech given by the petitioner on 11th February, 2016 was part of his strategy to create a defence. Hence prayer for bail has been strongly opposed on the ground that the slogans raised during the programme as well honoring martyrdom of Afzal Guru and Maqbool Bhatt justified registration of a case under Sections 124-A/120-B/34/147/149 IPC against the petitioner and other accused persons involved which can be established not only by video footage but also by independent evidence and investigation is to be completed.
7. Mr. Rahul Mehra, Standing Counsel (Criminal) for Government of NCT of Delhi has submitted that in the facts and circumstances of the case, the petitioner may be released on bail.

• Discussion 

1. The petitioner is President of JNU Students Union. His presence at the spot on day of incident when alleged anti-national event was organised, is not disputed. He explains his presence for not to participate in the activities but to control the unpleasant situation that had arisen because of conflict between two factions of the students having different political affiliations. The FIR in this case has been registered only about three weeks back. The investigation has now been transferred to Special Cell. At this stage, a detailed examination of the evidence is to be avoided while considering the question of bail, to ensure that there is no prejudging and no prejudice, a brief examination for satisfying about the existence or otherwise of a prima facie case is necessary.
2. In present case – Reference of some of the slogans and refer some of the photographs:-

Slogans: 

• ‘1. AFZAL GURU MAQBOOL BHATT JINDABAD.
• BHARAT KI BARBADI TAK JUNG RAHEGI JUNG RAHEGI
• GO INDIA GO BACK
• INDIAN ARMY MURDABAD
• BHARAT TERE TUKKDE HONGE– INSHAALLAHA INSHAALLAHA
• AFZAL KI HATYA NAHI SAHENGE NAHI SAHENGE
• BANDOOK KI DUM PE LENGE AAZADI   

3. The principles governing bail – The Court granting bail should exercise its discretion in a judicious manner and not as a matter of course. Though at the stage of granting bail a detailed examination of evidence and elaborate documentation of the merit of the case need not be undertaken, there is a need to indicate in such orders reasons for prima facie concluding why bail was being granted particularly where the accused is charged of having committed a serious offence. Any order devoid of such reasons would suffer from non-application of mind. It is also necessary for the court granting bail to consider among other circumstances, the following factors also before granting bail; they are,

(a) The nature of accusation and the severity of punishment in case of conviction and the nature of supporting evidence;

(b) Reasonable apprehension of tampering of the witness or apprehension of threat to the complainant;

(c) Prima facie satisfaction of the Court in support of the charge;’

4. The concept of sedition under Section 124A of Indian Penal Code, 1860 –

To advise a person to persuade to violence as a means of attaining a particular goal or seeking revenge is not less objectionable then advising that person to commit violence himself for that purpose. In either case, the advice is to pursue a course of action, it is calculated to disturb the tranquility of the State. It is a recommendation to oppose the established Government by force.

Conclusion and importance of case

• Conclusion

1. The petitioner is President of JNU Students Union and actively involved in various activities carried out in the University. He admits his presence at the spot on the alleged date of occurrence. The photographs of the incidents placed on record have been filed to show his presence at the spot. The limited controversy as on date is whether the petitioner was actively participating in the alleged anti-national activities on that day or he was present there only to intervene between two rival factions of the students. What was the role played by the petitioner on that day is subject matter of investigation and it is desirable at this stage to leave it to the investigating agency to unearth the truth. It is not disputed by the State at this stage that in the footage of video recording of the incident, the petitioner has not been seen raising anti-national slogans but learned ASG for the State has referred to the statement of various witnesses recorded under Section 161 Cr. PC who have stated about the presence as well active participation of the petitioner in that incident. The petitioner takes shelter under the speech made by him on 11th February, 2016 affirming his allegiance to the Constitution of India to defeat the forces indulged in disintegration of the country. Whether the speech dated 11th February, 2016 by the petitioner contains his original thoughts and faith in the Constitution and nationalist approach, or the speech was to create a safety gear for himself is again something which cannot be examined by this Court at this stage. The outcome of the investigation whether act is covered under ‘sedition’ as defined under Section 124A of Indian Penal Code, would be decided latter.
2. There are three concepts which are fundamental in understanding the reach of this most basic of human rights. The first is discussion, the second is advocacy, and the third is incitement. Mere discussion or even advocacy of a particular cause howsoever unpopular is at the heart of Article 19(1)(a). It is only when such discussion or advocacy reaches the level of incitement that Article 19(2) kicks in.3 It is at this stage that a law may be made curtailing the speech or expression that leads inexorably to or tends to cause public disorder or tends to cause or tends to affect the sovereignty & integrity of India, the security of the State, friendly relations with foreign States, etc.”
3. The vision and object of Jawaharlal Nehru University shall always kept in mind.
4. The FIR in question has been registered only on 11th February, 2016. Investigation is at the initial stage. The petitioner is the President of Jawaharlal Nehru University Students Union. His presence at the spot on 9th February, 2016 has been claimed on the basis of raw video footing of that day i.e. 9th February, 2016. The petitioner at present is in judicial custody. The question is, in view of the nature of serious allegations against him, the anti-national attitude which can be gathered from the material relied upon by the State should be a ground to keep him in Jail.
5. As President of JNU Students Union, petitioner was expected to be responsible and accountable for any anti-national event organised in the campus. Freedom of speech guaranteed to the citizens of this country under the Constitution of India has enough room for every citizen to follow his own ideology or political affiliation within the framework of our Constitution. While dealing with the bail application of the petitioner, it has to be kept in mind by all concerned that they are enjoying this freedom only because our borders are guarded by our armed and paramilitary forces. Our forces are protecting our frontiers in the most difficult terrain in the world i.e. Siachen Glacier or Rann of Kutch.
6. It is a case of raising anti-national slogans which do have the effect of threatening national integrity. Suffice it to note that such persons enjoy the freedom to raise such slogans in the comfort of University Campus but without realising that they are in this safe environment because our forces are there at the battle field situated at the highest altitude of the world where even the oxygen is so scarce that those who are shouting anti-national slogans holding posters of Afzal Guru and Maqbool Bhatt close to their chest honoring their martyrdom, may not be even able to withstand those conditions for an hour even. The kind of slogans raised may have demoralizing effect on the family of those martyrs who returned home in coffin draped in tricolor.
7. The petitioner claims his right regarding freedom of speech and expression guaranteed in Part-III under Article 19(1)(a) of Constitution of India. He has also to be reminded that under Part-IV under Article 51A of Constitution of India fundamental duties of every citizen have been specified alongwith the fact that rights and duties are two sides of the same coin. The petitioner belongs to an intellectual class pursuing Ph.d. from International School of Studies, Jawaharlal Nehru University, which is considered as hub of intellectuals. He may have any political affiliation or ideology. He has every right to pursue that but it can be only within the framework of our Constitution. India is a living example of unity in diversity. Freedom of expression enjoyed by every citizen can be subjected to reasonable restrictions under Article 19(2) of our Constitution. The feelings or the protest reflected in the slogans needs introspection by the student community whose photographs are available on record holding posters carrying photographs of Afzal Guru and Maqbool Bhatt.
8. 8. The faculty of JNU also has to play its role in guiding them to the right path so that they can contribute to the growth of the nation and to achieve the object and vision for which Jawaharlal Nehru University was established. The reason behind anti-national views in the mind of students who raised slogans on the death anniversary of Afzal Guru, who was convicted for attack on our Parliament, which led to this situation have not only to be found by them but remedial steps are also required to be taken in this regard by those managing the affairs of the JNU so that there is no recurrence of such incident.
9. The investigation in this case is at nascent stage. The thoughts reflected in the slogans raised by some of the students of JNU who organized and participated in that programme cannot be claimed to be protected as fundamental right to freedom of speech and expression. I consider this as a kind of infection from which such students are suffering which needs to be controlled/cured before it becomes an epidemic. Whenever some infection is spread in a limb, effort is made to cure the same by giving antibiotics orally and if that does not work, by following second line of treatment. Sometimes it may require surgical intervention also. However, if the infection results in infecting the limb to the extent that it becomes gangrene, amputation is the only treatment.
10. During the period spent by the petitioner in judicial custody, he might have introspected about the events that had taken place. To enable him to remain in the main stream, at present I am inclined to provide conservative method of treatment. Taking into consideration the facts and circumstances, I am inclined to release the petitioner on interim bail for a period of six months. Once the decision of releasing the petitioner on interim bail is taken, now the question comes as to what should be the amount for monetary security. In his speech dated 11th February, 2016 the petitioner has claimed that his mother works as Anganbadi worker and earns ₹3000/- per month on which the entire family survives. If this aspect is considered then the amount to be required to be filled in the personal bond and surety bond cannot be so high as to put him in a position that he cannot avail the interim bail. The time is ripe that while giving some concession to the petitioner on monetary aspect for purpose of furnishing the bond, he can be required to furnish an undertaking to the effect that he will not participate actively or passively in any activity which may be termed as anti-national.
11. Apart from that, as President of JNU Students Union, he will make all efforts within his power to control anti-national activities in the campus. His surety should also be either a member of the Faculty or a person related to the petitioner in a manner that he can exercise control on the petitioner not only with respect to appearance before the Court but also to ensure that his thoughts and energy are channelized in a constructive manner.

• Importance 

The reformative theory of jurisprudence is accepted while enlarging the petitioner on interim bail for six months. At the same time, it is clearly expressed when the patient is to be operated if the decease is not only to heart him but also to others. There would never the rights without any duties. You will only enjoy the rights under the shelter of duties and after performing them. There would not be any necessity to cry for the fundamental rights when you really understand the nature of duties and your responsibility with society, country and citizens.