Kanhaiya Kumar v. State of NCT of Delhi

Author: Prasoon Shekhar, ICFAI University, Dehradun

CASE: Kanhaiya Kumar v. State of NCT of Delhi

CITATION: MANU/DE/0498/2016

COURT: The High Court of Delhi

CASE NO.: Writ Petition (Criminal) No. 558/ 2016 & Criminal Miscellaneous Application No. 3237/ 2016 & 3262/ 2016.

PETITIONER: Kanhaiya Kumar

RESPONDENT: State of NCT of Delhi

BENCH: (J) Pratibha Rani

DECIDED ON:  March 02, 2016

FACTS OF THE CASE

On February 9, 2019, a programme was proposed to be organized at Sabarmati Dhaba, Jawaharlal Nehru University under the title of “Poetry Reading – The Country without Post office”. Since there was nothing objectionable, permission was granted by the University to conduct the programme from 5:00 PM to 07:30 PM. Later, when the posters of the programme were released which clearly mentioned “Against the Judicial Killings of Maqbool Bhatt and Afzal Guru”, the JNU administration came to know about the anti-national activities that were going to take place, the permission for the said programme was cancelled and it was informed both to organizers and the security staff.

Even without the permission of the university, the program was carried out and tension developed between two groups of students. The petitioner Kanhaiya Kumar, the President of JNUSU at that time was also alleged to take part in the event as seen in many videos.

On February 10, 2019, a video clip of the program was displayed on Zee News, in which a number of anti-national slogans could be heard. The Delhi Police obtained the video and the FIR bearing No. 110/ 2016 (Police Station – Vasant Kunj North) was lodged against the petitioner under sections 124-A/ 34 of the Indian Penal Code. Later, the petitioner was charged under sections 124-A/120-B/34/147/149 of the Indian Penal Code.

On February 18, 2016, the petitioner approached Supreme Court (Writ Petition (Criminal) No. 29/ 2016), which vide an order dated February 19, 2019, disposed the present petition and passed the matter to Delhi High Court for considering the bail petition as prayed by the accused.

This is how the petitioner is standing before this court.

ISSUES RAISED

1. Whether on the basis of the serious charges leveled against the petitioner, should he be released on Bail?
2. Whether the petitioner is liable for sedition?
3. Whether the speech of the accused is covered under Article 19(1)(a) i.e, freedom of speech, and expression?

ARGUMENTS

ON THE SIDE OF THE PETITIONER [Represented by Mr. Kapil Sibbal, Sr. Advocate; & Ors.]

• The petitioner had not played any role in the entire event. Neither his name could be seen on the posters nor has he been seen raising anti-national slogans.
• The FIR was lodged after the telecast of Zee News, and the slogan ‘Pakistan Jindabad’ was also a part of it but the same could not be found in the list of slogans in a report filed by State.
• The petitioner being the President of JNUSU, when he came to knew about the tension between the two groups of students, he went for the situation to come under control.
•  The petitioner has been made subject to police custody thrice and hence there is no need for any more investigation.

ON THE SIDE OF THE RESPONDENT [Represented by Mr. Tushar Mehta, ASG; Mr. Rahul Mehra, Standing Counsel (Criminal) for NCT of Delhi & Ors.]

• The statement of several witnesses recorder under section 161 of The Code of Criminal Procedure shows the role played by the petitioner. As per the statements, the petitioner talked to authorities regarding the cancellation of permission of organizing the event and showed his disappointment.
• Because of the absence of the signature of the petitioner in the application form for seeking permission for organizing the program in question, it cannot be concluded that the petitioner had played no role in the event.
• The investigation is not complete and there are various aspects on which investigation has to be done.

JUDGEMENT

The Court referred to the decision of Apex Court Kalyan Chandra Sarkar v. Rajesh Ranjan @ Pappu Yadav & Anr.[1], for the principle regarding granting of bail in non-bailable offences. It was held that before granting bail, the court needs to have a detailed examination of witnesses and a reason for granting bail should be mentioned in the order.

In the present case, the petitioner was granted interim bail for a period of six months on furnishing a bail bond of Rs. Ten Thousand only (keeping his mind the monthly salary of his mother, an Anganwadi worker). The reason was providing a conservative method of treatment and enabling him to live in the mainstream. He was also required to submit an undertaking that he will not take part in any activity which may be termed as anti-national and as President of JNUSU he was directed to make all efforts to stop anti-national activities from taking place.

For discussing the question on sedition, the Court took a view of Hardik Bharatbhai Patel v. State of Gujrat and Ors.[2], where it was held that any statement in which the listeners are being encouraged to resort to violence, based on the first impression it can be considered as Sedition under section 124-A of Indian Penal Code.

The court remained silent for the time and said the question is on the result of an investigation that will decide whether the petitioner is liable for sedition or not.

For discussing the question on freedom of speech and expression, the Court considered Shreya Singhal v. Union of India[3]. It was said that when the discussion of advocacy (the heart of 19(1) (a)), reaches to urging someone to behave unlawfully or causes or tends to cause affect to sovereignty and integrity of the nation, then Article 19(2) comes into actions and freedom of speech or expression can be curtailed. 

ANALYSIS AND SUGGESTION

Though Indian Criminal Law is based on reformative theory, anti-national activities should be taken seriously and the serious actions should be taken persons committing such acts. We the citizens of India are only safe because of the risks taken by people working in the defence sector and it would be a big shame if such people taking part in activities supporting terrorists like Afzal Guru who has attacked our parliament and Maqbool Bhatt are left freely.

Freedom of Speech and expression is available to every citizen of India but it is subject to restrictions as mentioned in Article 19(2). The same should be not extending to a level that may lead to affect the sovereignty and integrity of the nation. Strict actions need to be taken against the person who does such acts.

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[1] (2004) 7 SCC 528

[2] 2016 (1) RCR (Criminal) 542

[3] (2015) 5 SCC 1