AMU sedition row: Why Kashmiri students calling for azadi is no crime

Raising of azadi slogans is part of the freedom of speech guaranteed by Article 19(1)(a) of the Constitution.

 |  2-minute read |   13-10-2018
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The azadi slogan was said to have been raised in JNU some time back. It is raised often by Kashmiris, Khalistanis, people in the North East, etc. Recently it is alleged to have been raised in AMU. But, is it a crime?

It is reported that following the death of the Kashmiri militant Mañan Wani, some Kashmiri students in AMU held a "namaz-e-janaza" (funeral prayer) inside the AMU campus, and raised slogans of azadi for Kashmir. Consequently, two Kashmiri students have been arrested by the police and charged under sections 124A (sedition) and 153A (creating hatred between religious communities), and nine students have been issued show cause notices by the AMU administration, and a three-member committee has been constituted by the administration to hold an enquiry into the incident.

I have sent a letter to the committee explaining the legal position.

manan-copy_101318100632.jpgIt is reported that following the death of the Kashmiri militant Mañan Wani, some Kashmiri students in AMU held a 'namaz-e-janaza'. (Photo: Facebook)

Under our Constitution, holding a "namaz-e-janaza" would be covered by the fundamental right of assembling peaceably and without arms guaranteed by Article 19(1)(b) of the Constitution. Though of course, the authorities may regulate it to ensure public order, they cannot prohibit it all together even within the University campus.

As regards shouting of azadi slogan, this by itself is no crime, and in fact, it is part of the freedom of speech guaranteed by Article 19(1)(a) of the Constitution. Scotland often demands azadi from UK and Quebec from Canada But if one goes further and commits or organises violence, or instigates someone to imminent violence, then it becomes a crime vide Sri Indra Das vs State of Assam 

The "clear and present danger" test of the celebrated Justice Holmes of the US Supreme Court in Schenck vs US was accepted by the Indian Supreme Court in Govt of Andhra Pradesh vs P Laxmi Devi (see paragraph 79) and the "imminent lawless action" test of the US Supreme Court in Brandenburg vs Ohio was accepted by the Indian Supreme Court in Arup Bhuyan vs State of Assam and Sri Indra Das vs State of Assam.

sedition-copy_101318101757.jpgShouting of azadi slogan, this by itself is no crime. (Photo: India Today)

These tests are therefore the law of the land, and from their perspective, it can be clearly said that the students concerned had committed no crime. They were only being exuberant, but surely their acts posed no clear and present danger to the state, and would not have resulted in an imminent violent uprising.

I have therefore asked the committee to exonerate the students and drop the proceedings against them, and I would also request the police to do the same. We are living in a democracy, and people must be allowed to let out some steam, otherwise, as Justice Chandrachud of the Supreme Court rightly observed during the hearing of the Bhima Koregaon case –  the pressure cooker would burst.

Also read: I teach at JNU. This is how the top university is being dismantled today

Writer

Markandey Katju Markandey Katju @mkatju

Former Judge, Supreme Court of India and former Chairman, Press Council of India.

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