NEW DELHI: The Supreme Court of India was petitioned on Wednesday, Feb 17, to issue directions so as to insure a fair hearing in the case of JNU Students Union President Kanhaiya Kumar, to ensure that chaos does not jettison the rule of law.

However, even this hearing at our highest constitutional court witnessed an incident not seen in recent times, with a lawyer disrupting the hearing by raising a slogan Vande Mataram , during the proceedings. The Judges summoned the lawyer who then issued an unconditional apology. The Court went on to explain to the lawyer that the judiciary is essential to our democracy and symbolizes the promise of fair justice and that cannot be compromised by vitiating the atmosphere of a courtroom.

The Court after the hearing issued directions on the number of persons that could be present in the Patiala Court room during the hearing in the Kanhaiya case, which included the 6 lawyers of the accused, 5 journalists, the public prosecutor and the complainant and 2 students or the members of the teaching staff the accused would request.

The Registrar General of the Delhi High Court informed the Apex Court that the Administrative Committee of the High Court would also be taking out a report on the incident that happened earlier this week at the Patiala House.

The Apex Court also asked the Registrar General of the Delhi High Court to be present for the hearing at the Patiala Court premises at 2pm .

Interestingly during the hearing at the Supreme Court, which was limited to the point of ensuring a fair and peaceful hearing, was opposed by a lawyer by raising the issue of the accused being anti-national. The Judges had to ask him to stick to legal submissions as per the petition.

A few hours later violating this very order of the Supreme Court the Patiala Court was descended on by a mob of goons who attacked both the accused and the journalists. One can now truly say that with Supreme Court orders not being implemented and a State not being able to control law and order, we now are truly witnessing a serious threat to our our constitution.

In what is emerging to be a pattern it must be recalled that the BJP Government invoked “National Interest” to attack Indian federalism by rendering void an elected Government in Arunachal Pradesh. The decision on the National Judicial Accountability commission by the Indian Supreme Court of India led to the Judiciary being declared as the “tyranny of the unelected”. Now students belonging to one of India’s most prestigious universities have been declared “enemies of the state” before a single decision by a court of law.

These acts of the State reflect an ideological disagreement with the tenets of the Indian Constitution that defines the core values that constitute Indian nationhood.

It is not every day that a democratically elected Government pronounces its own citizens as anti-national. The Union Home Minister himself has approved the slapping of sedition charges on these students on grounds of them being anti-national. In fact, such was the hurry that with barely any preliminary evidence some persons petitioned the High Court of Delhi for a NIA investigation into JNU. The petition was dismissed by the court.

Now to examine the grave threats that these few students are alleged to pose to India. Members of the ruling party have filed a FIR on grounds of “sedition” and “criminal conspiracy”. Chapter VI of the Indian Penal Code 1897 contemplates “Of offences against the State” wherein the act of sedition is defined under Section 124-A. The important part of the section is that it “...excites or attempts to excite disaffection towards, the Government established by law…”

First, the premise on which the BJP Government has invoked sedition relies on an interpretation of law as recognized by the Colonial British Regime and not as documented by the Indian Supreme Court in ‘Kedar Nath Singh vs State of Bihar (1962)’. The argument of the BJP relies strongly on the Judgment of ‘King Emperor v. Sadashiv Narayan Bhalerao’ as authored by the Judicial Committee of the Privy Council who upheld the law as interpreted in ‘Queen-Empress v. Bal Gangadhar Tilak.’

The law in India is clear that Article 19 (1) provides the fundamental right to free speech whereas Article 19 (2) provides for reasonable restrictions on speech. The Constituent Assembly recalling the misuse of “sedition” by the British made sure the Constitution does not mention “sedition” explicitly under Article 19 (2).

The Supreme Court of India in ‘Kedar Nath’ held in unambiguous terms that a citizen has a right to say or write whatever he likes about the Government as long as this does lead to violence against the Government established by law or with the intention of creating public disorder. That subsequently the Supreme Court in ‘Balwant Singh vs State of Punjab’ dealing with sedition charges against those raising pro Khalistan slogans held that in view of the fact that no disturbance, whatsoever, was caused by the raising of the slogans by the appellants and that the casual raising of the slogans, once or twice alone cannot be said to be aimed at exciting or attempt to excite hatred or disaffection towards the Government under section 124-A of the I.P.C. as established by law in India.

In the current case, in spite of the scarce evidence available against the elected student union leader; in spite of the fact that students were allegedly mauled by members of the ruling party; and prior to a single order of the Court, the government has chosen to declare these people dangerous and guilty of anti-national activities.

Second, less than a year ago a constitutional court adjudicated on the issue of whether the Government alleging a citizen as “anti-national” rendered a person devoid of the fundamental right of freedom of expression. The Delhi High Court was faced with a situation where the Government of India had restricted Priya Pillai from traveling to the United Kingdom by recognizing her as working against “national interest”. Pillai approached the Court on the ground that this act of the State violated her constitutional right under Article 19 of the Constitution.

In a definitive judgment authored by Justice Rajeev Shakhdar in ‘Priya Parameshwaran Pillai vs Union of India’ the High Court of Delhi held that “for anti-national activities to be brought within the limitation of clause (2) of Article 19, it would have to have a close nexus with the security of the State. Security of the State as indicated in ‘Romesh Thapar's case’ can only be an "aggravated form of prejudicial activities" which endangers the very existence of the State or in the very least, I would think, threatens the life and limb of its citizens.” It was further held that “…if the submission of the Additional Solicitor General is accepted it would result in conferring arbitrary power on the executive, which could, based on its subjective view, portray any activity as anti-national. Such a situation, in a truly democratic country, which is governed by rule of law, is best avoided.”

Third, nationalism as a political and legal idea is not defined in our constitution and no government in India can ever seek to impose legal intelligibility on such an idea, forget demanding retribution by law for failure to oblige to such a dictate.

The citizens of India, it seems, are now not to be governed by constitutional rights, the hallmark of our national identity but by a restrictive parochial definition of nationalism. India’s constituent assembly did not define the concept of nationalism but instead guaranteed the citizens of its nation individual liberties, separation of powers, federalism and a rule of law, so that our diverse democracy can overcome even a majoritarian governments attempt to subvert constitutional rights .

An independent Judiciary and a free media form the soul of our democracy and nation. They in the future like in the past shall continue to fulfill their constitutional duty of being strong to anti-majoritarian institutions.

(Abhik Chimni is a lawyer).