Frankly, I’m not just baffled but completely perplexed by Arvind Kejriwal’s decision to grant the police permission to prosecute Kanhaiya Kumar for sedition under Section 124A of the Indian Penal Code. He has not only contradicted his earlier publicly expressed admiration for Kanhaiya, but he has also revealed he is ignorant of the actual law of sedition, and his explanation for his decision suggests his is a government that doesn’t know how to exercise judgment and take a principled stand. Let’s see if you agree.
First, Kanhaiya Kumar is to be prosecuted for sedition, because he allegedly shouted “Bharat tere tukde honge, inshallah inshallah” in February 2016. Kanhaiya denies it, but, for argument’s sake, let’s assume he did. The question is – is this sedition?
As far back as 1995, in the Balwant Singh case, the Supreme Court ruled that shouting “Khalistan Zindabad” is not seditious. Significantly, this referred to slogans raised the very day Indira Gandhi was killed. Despite that, the Supreme Court (SC)’s ruling was clear and forthright: “Raising some slogan only a couple of times … which neither evoked any response nor any reaction from anyone in the public cannot attract the provision of Section 124A.” And the Court added: “The police officials exhibited lack of maturity and, more, of sensitivity in arresting the appellants for raising the slogans … (the slogans) did not constitute any threat to the government of India as by law established nor could the same give rise to feelings of enmity or hatred among different communities or religions or other groups.” That remains the SC’s position to this day.
Rahul Mehra, the Delhi government’s standing counsel, recognised this, and advised Kejriwal against granting permission. He is reported to have said the police case was “flimsy”, riddled with “gaps”, and does “not amount to sedition against the state”.
Now, it’s quite possible Kejriwal is ignorant of the actual status of the law of sedition. After all, he is a politician and not a lawyer. That’s why he has legal advisers. But rather than accept, he chose to ignore the advice of his own government’s legal counsel. Not because he had reasons to disagree, but on very different grounds. Raghav Chadha, the Aam Aadmi Party spokesperson, gave this explanation. The government, he said: “As a matter of policy and as a matter of principle does not and has not intervened in any of such cases.”
This is particularly troubling and bizarre. Since the government has the power to either grant or refuse sanction for prosecution, it is its duty to do so in a well-considered manner. How, then, can it claim that “as a matter of policy and as a matter of principle” it will simply sidestep the issue, and not come to any carefully thought-out view? Surely that’s abdication of duty?
In this instance, it’s, arguably, worse. By refusing to exercise its judgment, the Kejriwal government has subjected Kanhaiya Kumar to unwarranted prosecution. In fact, it almost feels like persecution. Indeed, I would go further. I can’t resist the feeling Kejriwal has chosen to burnish his own nationalist credentials at Kanhaiya Kumar’s cost.
Finally, let me recall what Kejriwal said when Kanhaiya Kumar made his famous speech at Jawaharlal Nehru University on March 3, 2016, just three weeks after the alleged slogan shouting. “Heard Kanhaiya’s speech many times”, he tweeted. “Amazing clarity of thought, expressed wonderfully. He said what most people have been feeling. God bless him.” Raghav Chadha’s comment was equally effusive: “One hell of a speech by Kanhaiya. Sheer brilliance.”
Well, it seems today one of them has consigned Kanhaiya to hell while the other has left him to God’s – and let’s hope the judiciary’s – mercies. That’s why I’m deeply disappointed. I did not vote to re-elect a Kejriwal, who doesn’t have the strength to exercise his legitimate authority, the wisdom to accept advice from those who know the law, and opts, instead, for an easy decision, because it will protect his personal popularity.