Sedition (?) at JNU

The Americanisation of Indian political journalism has meant that for over a decade now, the most burning issue before the Nation at any point of time is melee around ‘who said what’. If one day, the outrage is on ‘How could Sadhvi Niranjan Jyoti use the term 'Haraamzaade', the next day the righteous indignation could be on an issue as mundane as 'How could they not allow us to demand India's destruction?'

While these contrived fracas may have made careers of many TV anchors and increased traffic on Twitter, at one level, these debates are repetitive and tiring. Not only that, contrary to the literal meaning of debate, these controversies only serve to harden pre-conceived notions and sharpen divides, the outcome many a times abetted by brazen duplicity of those who attempt to define and guide the narrative on free speech.

The following note is in response to a widely circulated write-up on Quora by one Harshit Agarwal, a JNU student, who claims to provide ‘a lot of answers’ from an eyewitness’s perspective.

Harshit's post makes a dishonest attempt to sound reasonable and bipartisan. Following are responses to comments Harshit has made in his post.

Whether seminar on Kashmir is wrong?

Seminars and discussions on Kashmir are dime a dozen and no one is really bothered about statements made on the nature of 'Indian oppression' in Kashmir. Hence, it is quote disingenuous to rhetorically question whether discussions on Kashmir should happen. At the same time, one does wonder the last time JNU or any left aligned body expressed solidarity or provided a platform to exiled Hindus, who also coincidentally, happen to be Kashmiris from Kashmir.

Whether objections to court judgements and capital punishment are wrong?

Of course, denouncement of capital punishment is perfectly okay. But people taking a stand against something (strong action against terror convicts) which has significant National sentiments attached to it, should be ready to bear the brickbats. We have feminists coming down like a ton of bricks on people who dare to highlight inherent biases in domestic violence or rape-related laws. Quite unfair but that holds true for all who cross the line of political correctness. That said, quoting Arundhati Roy's opposition to Afzal's hanging does disservice to those who believe that capital punishments are wrong by their very nature, and not just because the hung belonged to a so-called minority segment of society.

Shouting of 'anti-National' slogans

Harshit's paining of ABVP as the 'sole harbinger of Nationalism' betrays his own sympathies and ideologies. Will he care to explain as to why the 'beautiful JNU where all opinions, however radical are listened and respected', declined to let Baba Ramdev talk? Or did the students feel that his being a 'reactionary' automatically disqualified him from being among them?

In Harshit's world, members of sundry leftist bodies are students but that of ABVP mere 'cadres’. Is that respect or is that inclusion?

He claims that the slogans 'Hum jya chaahte? Azaadi!' were raised to ‘create solidarity’ and in response to ‘clichéd’ slogan of 'Kashmir hamara hai'. If it is so ‘clichéd’, just why did it take their goat so much that they had to demand ‘Azaadi’? How does demand for Azaadi create solidarity in between the communists and Kashmiri separatists?  And if the communist disgust at ‘Kashmir humara hai' is justified, what is wrong in many getting outraged at 'Hum jya chaahte? Azaadi!'

In Harshit’s universe, demand for Azaadi is perfectly normal. For did we not ask for it from British or did not USSR break-up? It is amusing that it escapes him that the ‘collective conscience’ of our people gets outraged when Kashmir’s sectarian struggle for secession from India (and merger with Pakistan) gets equated with India’s struggle to throw off the colonial yoke. If, in his words, secession itself is not bad, then just how wrong would it be to ‘plan a conspiracy to overthrow the government and seize Kashmir from India’?

On a more serious note - Why is Afzal Guru important? Because he is a victim of an unjust Indian state? Or because he is a martyr to the cause of Kashmiri freedom? If it is the former, then just how relevant is the slogan ‘Har ghar se Afzal nikalega’? Afzal Guru’s hanging has neither resulted in a social revolution, nor has it resulted in change in any law. For that matter, even in his life, (the presumed innocent) Afzal did nothing which would create an impact in the country. So, even if each communist womb/household does produce an Afzal, just how enriched will the revolution be?

On the other hand, if Afzal is seen a martyr, someone who dared participate in an attack on Indian parliament, he becomes very important, very prominent. And if this is the Afzal who will be born from each communist household, I will have no hesitation in standing with those who would want such Afzal-producing families to be punished in the most severe manner. Afzal as a martyr is not an activist for Kashmir’s azaadi. He is an active agent of India’s destruction.

Moving from the dangerous to the ridiculous, when Harshit quotes, hold on, Wikipedia! Just which scholar picks up lines from Wiki? Quite funny that two lines in the SC judgement are seen to be over-riding the entire judgement and the cumbersome mercy petition process. Any person who claims to be campaigning against capital punishment should at least be aware that this punishment is to be accorded in the rarest of the rare cases, where the crime is such that it shakes the collective conscience of society. Let him rest assured, that line of SC’s judgement does not mean that Afzal was hung simply to sate someone's bloodlust. The least likes of Harshit can do to refer to the full text of SC judgement  on Afzal's death penalty before deciding that he was innocent. Likewise, let he and others like him refer to the Machhi Singh case and recognise that 'collective conscience' is one of the criterion for 'rarest of rare' since 1983! But when has lazy and haughty ignorance stood in way of prejudices?

As regards terrorist, quite funny that the claim is that only people carrying arms can be called terrorists. Worldwide, across all societies, people supporting and abetting a crime are considered parties to that crime and are punished. Savarkar is sought to be condemned for his supposed involvement in Gandhi's assassination based on some conjecture of his being aware of the assassination plot, based on some supposed testimony of his servant, AFTER Savarkar had died. Here, we have spectacle of support for convicts who attacked parliament. Had it not been for the supreme sacrifice of our security men, many of those who are supporting the terrorists would have lost their lives. But that is okay as the killers are all oppressed by the Indian state. But seriously, does Harshit believe that his fellow-travellers agitating against the hanging of Afzal Guru and calling for destruction of the Indian state are merely court bards and do not actually have to bear any responsibility for their words?

Now the slogans which stirred the pot. This is where Harshit skillfully skirts the issue and portrays demands for India's destruction as normal. He makes quite a few claims. First he says that he was witness to some events on Feb 9. Then he claims that he has never 'witnessed or heard of them (DSU) committing a terror activity'. He further states that he had 'never heard any anti-India' slogans in JNU. He claims that the Kashmiris were outsiders for he had 'never seen them'. That he did not hear any 'Pakistan Zindabad' slogan and then tries to pin the blame on ABVP. Then he triumphantly declares that 'it is clear that no JNU student was involved'

He seems to be quite a man. Whatever he says he did not see cannot have happened! And since he is such a man, let us without question accept the ‘lot of answers’ which he has provided from an eyewitness’s perspective!

(The 'ABVP exposed' video highlights 2 men and a woman. The woman is seen arguing with someone (not sloganeering), 1 man only seen and another seemingly uttering ‘zindabad’. What sort of ‘expose’ is this that of the 3 ‘exposed’, only 1 seems to be actually sloganeering. And is he really an ABVP activist? If so, identity him and question him. Of the so many people chanting Pakistan Zindabad, the communists manage to ‘catch’ half-a-person and are triumphantly declaring that the entire fracas were generated by him!)

JNU is the very place where killing of over 75 jawans by Naxals was celebrated (so much so for being pro-India). The very place where Hindu festivals are suppressed (so much so for diversity)

The 'mild' Marxists, communists, Maoists all belong to political ideologies which suppressed individuals, communities and Nations, clamped down on any form of free speech and killed millions and millions of their own countrymen in purges and class struggle. If it seems too far off, these are the very people who decried independence, commenced an armed struggle, supported China during the 1962 war, committed mayhem in Naxalbari and as Maoists, tapping the many fault lines, are still working for disintegration of the Nation. Do we need to take lessons in democracy and freedom from them?

If rejection of the idea that these killers of freedom of all forms can educate the rest of us on what democracy and liberty are gets called as ‘suppressing dissent’, let us be strong enough to bear that cross. Not all talk is dissent. Talks of subversion are not dissent. The idea of dissent is noble. People who feel they are wronged get listened to sympathetically only when they talk about their misfortune, not when they threaten fire and brimstone on their imagined oppressors.

Dissent can be against the rulers. Dissent can be against entrenched interests. Dissent cannot be against the country, cannot be against our very Nation-hood. If we manage to confuse vicious demands for India’s disintegration with free speech, then, to put it mildly, we have a very serious problem in hand.

The fracas on speeches and slogans calling for India’s destruction at JNU have evoked predictable reactions but for the intriguing stand taken by the Congress. It would have been abnormal for the Communist parties and the born-again secular-socialists like JDU to condemn what happened on Feb 9. However, for the Congress, in spite of its cynical manipulation of the Ishrat Jahan controlled killing case, the Batla House encounter, and the bogey of Hindutva terror, it was quite unexpected that it would side with those who were actively supporting a terror convict and demanding India’s disintegration.

Still, the Congress under Sonia Gandhi is a much regressed version of the party under the original Mrs G, or even PV Narasimha Rao. It is quite scary to imagine that the only party with a truly National footprint can stoop to such pettiness but then we deserve the politicians we have.

As far as the JNU culprits are concerned, it would have been better had these student-activists been charged under NSA rather than with sedition. Given the outcome of even Binayak Sen’s case, we may see courts dismissing sedition charges. On the other hand NSA, if nothing else, could have been a good charge, particularly considering the way the Marxists have always applauded its application on Varun Gandhi, Kamlesh Tiwari, Swami Yashveer and many BJP leaders from Western UP for merely expressing their views.

Why opposition to JJ Bill was ill-informed, even as more needs to be done

It is well accepted that a state can be said to have ‘failed’ if (i) it loses control over its territory or cannot use legitimate physical force to regain it; (ii) there is an erosion of legitimate authority to make collective decisions; (iii) inability to provide public services; and (iv) is unable to interact with other states as a full member of the international community.

While India is not yet a failed state, in spite of continuously having lost territory since independence; and her increasing inability to provide basic healthcare and education to its citizens, it seems that it is rapidly fulfilling another criterion of failure, i.e., capability to make and execute effective legislation.

The last couple of decades have witnessed three disturbing trends in the legislative process – one, the parliament has been spending less and less time in debating a law. Many of the new laws being passed are done so without any discussion (other than in the standing committees) at all in the parliament. More sadly, laws have been party instruments. Rarely if ever, does a parliamentarian questions or takes a stand contrary to the ‘party’ stand on any legislation. This forced concurrence ensures that the legitimate concerns of society routinely gets suppressed by the party whip. The second disturbing development has been the disproportionate rise in the power of ‘civil society’ to dictate legislation. From the draconian ‘anti-rape’ bill to ‘POCSO’ (Protection of Children from Sexual Offences Act 2012), to Right to Education, to Right to Food and ‘Promotion’ of Communal Violence bill, many legislations/proposed bills are more reflective of the ideologies of vested interests rather than a solution to needs of the general public. This influence stands in direct contrast with activism against GM seeds or Land acquisition bill, where the modus operandi adopted by the activists is grassroots driven and more intended towards maintenance of status quo. The third trend is the much commented upon ‘legislation by decree’, where more and more court pronouncements are becoming/replacing legislature enacted laws. In some ways, it may be good, particularly where the legislature has abdicated its responsibility to govern. But overall, it incontrovertibly changes the way India was supposed to be governed.

A sad manifestation of our weakening legislative systems is the fracas on the Juvenile Justice bill. First, in 2000, without any rhyme or reason, the NDA Government raised the age bar for criminals to be considered as juveniles’ upto 18. Worse, it capped any ‘punishment’ to 3 years, that is if time spent at a remand home, with TV and other entertainment amenities and money for rehabilitation on completion of remand, can really be called punishment for heinous crimes. Now, when the current NDA government planned to revamp the law, rather than looking at systemic improvements, it took a short cut and simply decided to reduce the age limit for juveniles to 16 in case of heinous crimes. While this step by itself is half-hearted and leaves much to be desired, what was revealing was the cacophony of the ‘activists’ and reactions of the opposition parties.

Much was made by the activists on how India was taking a regressive step, that it had won lots of international renown by its 2000 Act and that the current step would bring it in the category of Iran and Sudan! On how scientific studies had ‘proved’ that a person was a ‘child’ till he turned 18 or that how it the societies’ fault that the ‘child’ had committed crimes and how it should be the responsibility of all of us to rehabilitate him. A lot of noise was created on how the current Act ran contrary to International Commitments India had made under ‘Convention on the Rights of the Child’ and that India would face International censure and even have the Act stuck down by the court, when challenged.

Let’s meet these objections one-by-one.

Just where is the evidence of this supposed ‘renown’ which India had won? Where are the laurels which India had supposedly won and just how many countries followed in amending their laws allowing ‘Juveniles’ to commit crimes with impunity? Sadly, there are none beyond the fertile imagination of these activists. For argument’s sake, say India was feted heavily by other States for this Act. So, should a failed moved be carried on because it meets someone else’s worldview?

As regards scientific, just how believable these studies can be which protects a criminal as juvenile till he/she is a day short of her 18^th birthday? Do heavens open up and bless this person with wisdom on that divine day (18^th birthday), that anyone below this age doesn’t possess? At one level, we have numerous studies indicating that on account of various dietary and environmental factors, children are hitting puberty earlier than usual, some as early as 10 years. Scientifically, puberty is a period when the mental and judgmental faculties of a child develop at a fast pace. With so much exposure to external environment, coupled with early puberty, do we really have to believe that an 18 year old remains a ‘child’?

On the responsibility of society – well, the human civilization demands that people adhere to a certain set of principles, violation of which invites punishment. We are expected to rise above the laws of the jungle and overcome our base instincts. A mindset which excuses crimes on account of the deprivation of the criminal is the most certain path to end of civilization. And just how unfair is it to 1) the victims of the crime; and 2) those who overcame their barriers and stuck to the right, civilized path? Protecting and rewarding the criminal simply does not pass the test of natural justice, is absurd and detrimental to the entire society, even with all its warts.

Finally, the most quoted one – one couched in legalese, on how India is contravening its commitments under ‘Convention on the Rights of the Child’, which if the risk of International strictures are not enough, puts us in the category of, horror of horrors, failed states like Sudan and Iran!

As is likely, most of the ‘activists’ parroting this line do not seem to have bothered having read the declaration even cursorily.

Even if we move beyond the non-binding nature such pious declarations, the Article 1 of Part 1 is itself revealing. It states:

For the purposes of the present Convention, a child means every human being below the age of eighteen years unless under the law applicable to the child, majority is attained earlier.

So, the convention takes into cognizance the fact that different Nations have a sovereign right to define their own laws. More critically, the convention allows flexibility in the age of maturity for the same child, in the same country.

Article 38(2) states:

States Parties shall take all feasible measures to ensure that persons who have not attained the age of fifteen years do not take a direct part in hostilities.

Article 38(3) further states:

States Parties shall refrain from recruiting any person who has not attained the age of fifteen years into their armed forces. In recruiting among those persons who have attained the age of fifteen years but who have not attained the age of eighteen years, States Parties shall endeavour to give priority to those who are oldest

Very clearly, the convention itself is not rigid about 18 being the Rubicon below which any person is most definitely a child. Not only that, as per the above article, it acknowledges the fact that the treatment of children at fifteen need to be differentiated vis-à-vis people who are older.

Article 38 speaks about punishment to for criminals. It states

States Parties shall ensure that:

(a) No child shall be subjected to torture or other cruel, inhuman or degrading treatment or punishment. Neither capital punishment nor life imprisonment without possibility of release shall be imposed for offences committed by persons below eighteen years of age;

(b) No child shall be deprived of his or her liberty unlawfully or arbitrarily. The arrest, detention or imprisonment of a child shall be in conformity with the law and shall be used only as a measure of last resort and for the shortest appropriate period of time;

(c) Every child deprived of liberty shall be treated with humanity and respect for the inherent dignity of the human person, and in a manner which takes into account the needs of persons of his or her age. In particular, every child deprived of liberty shall be separated from adults unless it is considered in the child's best interest not to do so and shall have the right to maintain contact with his or her family through correspondence and visits, save in exceptional circumstances;

(d) Every child deprived of his or her liberty shall have the right to prompt access to legal and other appropriate assistance, as well as the right to challenge the legality of the deprivation of his or her liberty before a court or other competent, independent and impartial authority, and to a prompt decision on any such action.

Just which part of the above conventions is the JJ Act violating? Even for most heinous of crimes, the below 18 criminal still won’t be accorded capital punishment or life imprisonment. Rest all other clauses have been addressed likewise. If some aspect of the other homilies don’t really happen in real-life, it is true for all laws and all sections of Indian society. That our basic systems are dysfunctional are no reason to give free license to any category of people to commit crimes.

Full text of the Convention can be accessed here.

Now on the disdainful International company we are now supposedly keeping - Interestingly, this convention, probably because of its pious nature, has been ratified by almost all countries signatory to it, a glaring exception being the USA. Refer to the status map here. As an aside, India should walk out of this convention simply on account of the map showing Kashmir and Arunachal as distinct territories. Anyway, as the below link and map indicate, even Sudan and Iran, not to speak of Zimbabwe and Saudi Arabia have ratified this treaty. Just how has it made a difference to their execution of children for ‘crimes’ such as blasphemy or homosexuality?

It will be a sad day for society if this law, if challenged in courts on the grounds of it supposedly violating International conventions, is not defended and utter fallacies of the said argument pointed out. There is reason to suspect that this might happen as previous, on a petition asking the court to reject the bar of 18 for juveniles to be declared criminals, ‘activists’ had succeeded in convincing the court of the ‘scientific’ basis of the age bar and India’s commitments under International conventions.

Some ‘activists’ have mocked the law asking if this will prevent further rapes? Nothing amazes more than the sheer stupidity of some arguments forwarded by the ‘intellectual classes. No law in the world had ‘stopped’ any crime. In spite of murder, theft, assault being criminal offences in all societies since the dawn of civilisation, they still happen. Laws are meant to deter, and to provide a sense of justice to the victim/victim’s family. If some words written on paper or engraved on stone were to finish crimes, we would all have been living in utopia for millennia!

A manifestation of shallowness of our society has been the debates on the supposed draconian provisions of the bill focusing only on rape. The so-called juveniles do not only rape, they also commit armed burglary, murders, murderous assaults and are even involved in terror activities. Just which of these is a ‘gentle’ crime so as to merit only a rap on the knuckles? Maybe the activists can adopt the sweet juveniles and ensure that all the deprivation the latter have had is addressed by their caring hearts. Why force society at large to bear the cross of convictions of some?

The way statistics have been used to defend juvenile crimes would put Goebbels to shame. Most pro-criminal activists have claimed that crimes committed by juveniles in the age-group 16-18 are only 1.2% total crimes committed by all and hence is ‘normal’. This is ridiculous as comparison is made like-to-like. Just what is the proportion of crimes committed by this age bracket in the total crime committed by people upto 18 years of age?

More importantly, the involvement of criminals in this age bracket has shown an increasing trend in the last few years. There is enough anecdotal evidence to believe that even criminal gangs are using this group to commit crimes, even supari murders on account of the virtual lack of any punishment to them.

The revision of Juvenile Justice Bill was long overdue and is a step in the right direction. Kudos to Maneka Gandhi for doggedly pursuing the bill in spite of resistance or indifference from all. To take a stand against powerful ‘activists’ and succeed is nothing short of a miracle, something which she achieved, aided in no small part by the public outrage consequent to Nirbhaya’s parents taking to streets against release of the so-called juvenile. Had it not been for Nirbhaya’s parents, our ruling classes would not have been shamed enough to act on the bill and ensure its passage. Lastly, kudos to TMC’s Derek O Brien. He is not very much off the mark when he claims that the bill is TMC’s bill as had it not been for his intense lobbying, the bill would not have been listed in the Rajya Sabha for discussions.

Much needs to be done

Does the above unequivocal support for the JJ Amendment bill means that the bill is devoid of faults. Definitely not! Systemic issues remain and much needs to be done to ensure that not only are crimes committed by children dealt with in the best possible manner, the rights of the society, the parents and the children themselves are protected adequately.

Firstly, the concept of age defining whether the criminal needs to be punished is archaic and runs counter to the principles of natural justice. Most developed countries, with much more refined laws and sensibilities than India, and much more pro-actively engaged in child welfare treat crimes and criminals for what they are. When achievements of children are not discounted because they are ‘juveniles’, how can their crimes be? We will certainly have cases where 15 year old children will commit heinous crimes. What knee-jerk reaction will be taken then?

Second, except for very few countries, there is no upper limit to period of ‘punishment’ to be accorded to the child criminal. Just what is the logic of 3 years in remand home being the maximum punishment for all crimes, irrespective of the age of the criminal? This upper cap is intensely artificial and rather than acting as a deterrent, promotes a culture of impunity among the criminal minded children.

Lastly, the JJ Law, POCSO, and the anti-rape provisions of our laws do not take into account social realities and even the sexual rights of a child. In the current state of affairs, mere allegation of rape is sufficient to put the boy/man behind bars, with the onus of innocence lying on him. POCSO recognizes various contacts of sexual nature with anyone below 18 as a sexual offence. It conveniently ignores that post puberty, children do engage in, even if uninformed, voluntary, consensual sexual activities, most of the time with their schoolmates/friends or even relatives of the same age-group.

Currently, a sub-18 boy, if found ‘guilty’ of sexual relations with a sub-18 girl is a rapist. The consent of the girl is of no value. In the previous version of the law, at least the boy victim of his lust/love would get away with 3 years in a remand home. Now, he would spend 7 years with hardened criminals. If this boy/man was say 19, rather than 18 (now 16), and the girl even 17 years, 11 months 354 days, the consent of the girl is still immaterial and the boy/man does not even have the protection offered by the JJ Law.

Realistically, sex between children has been happening since ages and will continue to happen. Till a few decades back, consummation of marriages once the girl had reached puberty was the norm. Islamic jurisprudence recognizes a girl having her cycles as adults. Most western countries recognize the sexual nature of pubescent children and have taken care to accommodate nature while drafting strict child-protection laws. There, the age of consent (for sex) is more realistic and whether the accused is a criminal or not, is defined by the age difference between him and the supposed victim, generally 3 years.

In its current form, the law is being used by parents whose girl-child has eloped to ‘punish’ the boy by charging him with rape.

We may find sexual contact between children reprehensible and even revolting. But is it criminal?

In all, is the current Act free of lacunae? Certainly not. But is it an improvement over the previous maudlin bill? Most definitely, yes!