Can the Sedition Charges Against Kanhaiya, Khalid Stand Scrutiny?

Police evidence doesn’t appear to satisfy Supreme Court test, of incitement to violence, needed to prove sedition

Sedition Evidence Against Kanhaiya, Khalid Appears Weak

Photo: The Quint

Video Editor: Purnendu Pritam

Police have released details of the evidence being used in the charge sheet against Kanhaiya Kumar, Umar Khalid, Anirban Bhattacharya and others, alleging sedition by them at an event in JNU on 9 February 2016.

While the full details of the charge sheet are not available yet, if this is what their evidence will be showing, it is difficult to see how they will be able to successfully prosecute Kanhaiya and the others.

Requirements for Sedition in Indian Law

Section 124A of the Indian Penal Code punishes those who attempt to cause hatred, contempt, or disaffection towards the “Government established by law in India”. However, there is a strict test for what falls within its scope.

In 1962, a five-judge Constitution Bench of the Supreme Court, in the Kedar Nath case, confirmed that allegedly seditious speech was only punishable if it was an incitement to violence or public disorder. This has been upheld in numerous cases, like the 2011 Arup Bhuyan case, and in the landmark Section 66A judgment , the Supreme Court drew a distinction between advocacy and incitement.

It is also important to note that this must be an imminent incitement to violence, not some vague idea of a revolution in the future. Mere sloganeering cannot be considered sedition, as the Supreme Court clarified in the Balwant Singh case, where shouting pro-Khalistan slogans wasn’t considered sufficient.

Evidence Against Kanhaiya and Others

And so, we come back to the charge sheet against Kanhaiya and the others. There is and will be a lot to be said about the quality of evidence, and whether the videos relied on by police are accurate, or doctored, given how fake videos have been used to attack the students previously.

But without even going into that question, the charge sheet is still likely to come up short. Because according to police themselves, at most, they have evidence of “anti-national” slogans at the event in JNU which was organised to protest the killing of Afzal Guru.

This is not sufficient to satisfy the Supreme Court’s test for sedition.

If police had evidence to show these slogans were an incitement to violence, or that they had caused some actual violence, then that would be a different thing, but that is not mentioned in the table of evidence.

Even going by the doctored videos of the slogans at the event, there was no incitement to imminent violence, no urging of the crowd to go out into the streets and bring down the government.

At most, there was advocacy of certain revolutionary ideals, and demands for freedom – the test is not satisfied.

What Happens Now?

On this basis, in an ideal world, the trial court would find that the charge sheet does not make out any offences, and so refuses to take cognisance of it. However, this rarely happens in trial courts in India, and so it’s likely Kumar and Khalid and the others will need to move a quashing application in the higher courts.

At the end of the day, this case is another textbook example of how a sedition law is a threat to freedom of speech, which is why even the United Kingdom, which gave us this law, has now repealed it. The Law Commission in 2018 has also noted these dangers, and has suggested a need to amend the law to at least introduce safeguards.

It is also possible that if the Supreme Court were to hear a challenge to sedition today, they could strike Section 124A down, thanks to a better understanding of the fundamental right to privacy, as well as the recent clarification in the Section 377 case that pre-constitutional laws do not have a presumption of constitutionality.

This could be the one upside to the trial court accepting the charge sheet in this case – that it becomes the case where sedition is challenged again, and either repealed or amended.