The Supreme Court today transferred to the Delhi high court JNU Students’ Union president Kanhaiya Kumar’s petition seeking bail and security.
An apex court bench of Justice J Chelameswar and Justice Abhay Manohar Sapre, while transferring Kanhaiya’s petition, asked the high court to hear it expeditiously.
The court also recorded the statement of Solicitor General Ranjit Kumar that the lawyers representing Kanhaiya Kumar before the high court and media personnel be provided with full security.
The court directed its secretary general to forthwith transfer Kanhaiya’s writ petition and related papers to the high court.
Kanhaiya Kumar’s lawyers are likely to mention it for an early hearing before the high court on Friday afternoon.
Not impossible that Delhi HC cannot hear the matter; SC not an appropriate forum and case is not at a right stage to hear the bail: SC
tweeted @CNN-IBN.
Senior counsel Soli Sorabjee, Raju Ramachandran, and advocate Vrinda Grover are all acting for Kumar. Read the petition here.
Comments
Freedom is my birthright and I shall have it - this sentiment apparently was supposed to have ended in 1947.
Indians have needed to fight for their freedom in myriad ways everyday since 1947 to today.
So is shouting inquilab zindabad also a seditious act.
The response at 1.1 by LAW123 is a good example of how we have got to the point that people are not allowed to speak now. First distort and misrepresent what someone says, and then shut them down.
Watch the doctored azaadi slogans video at
http://scroll.in/article/803776/fact-check-the-video-of-kanhaiya-kumar-shouting-for-azadi-its-doctored
Watch the actual azaadi slogans video at
http://www.abplive.in/india-news/jnu-row-this-the-reality-of-kanhaiyas-azadi-video-some-channels-are-running-wrong-information-292219
What are the implications of this comment for the hearing in the Delhi High Court?
Secondly, are you to say that now in the face of an alternate efficacious remedy available to High Court, Supreme Court were to set a dangerous precedent by granting bails under Article 32.
This is wholly untenable in law.
"Two Dalit youths representing Bharatiya Vidyarthi Morcha (BVM), a youth wing of Bharat Mukti Morcha, were arrested on Thursday on charges of breaching peace when they met the Varanasi district magistrate and asked for permission to raise black flags during Prime Minister Narendra Modi’s visit to Banaras Hindu University (BHU) campus on February 22.
...
BVM national in-charge Vilas Kharat and UP working president Vijay Pratap Bharatiya met DM Rajmani Yadav at his office on Thursday morning and submitted a letter seeking permission to hold “peaceful protest” during PM’s visit for BHU’s 98th convocation. The DM immediately called the police, who arrested Vilas and Vijay under Section 151 of CrPC (apprehension of breach of peace), said Cantonment station officer Ratan Singh Yadav."
He must also challenge the constitutional vires of Section 124A IPC. There are grounds to do it, given that Police Commissioner B S Bassi himself and Home Ministers Rajnath Singh and Kiren Rijiju themselves have interpreted Section 124A in a manner that violates Article 19.
He can only effectively do all this under Article 32 before the Supreme Court.
The ground for challenge would be the manner in which the Police Commissioner and the Home Ministers have interpreted 124A in their public statements.
This issue can only be finally resolved in the Supreme Court.
Also the State has displayed such impunity and given the grave threat to everyone's freedom of speech and democratic dissent that the Modi Government has created, the Supreme Court should hear this matter.
Mobs of uneducated BJP supporters like I saw on NDTV this morning cannot be allowed to dictate what all Indian citizens can be allowed to think or speak.
The fascist speech being resorted to also requires the Supreme Court's intervention.
The Supreme Court already intervened on the 16 and 17 of Feb. The executive has blatantly defied the Supreme Court's directions.
The kind of violence witnessed in Patiala House Court is so grave that it requires the Supreme Court to respond.
Has the Supreme Court never granted bail to someone who approached the Supreme Court directly without approaching lower courts?
What about the Teesta Setalvad order? see Teesta Setalvad bail: It's a bizarre case of Supreme Court's exceptionalism http://www.firstpost.com/india/teesta-setalvad-bail-its-a-bizarre-case-of-supreme-courts-exceptionalism-2168059.html
I am not a nationalist, I have refused to be a nationalist ever since I understood the meaning of nationalism in university.
But that does not mean that I am anti-national. I believe in human rights, in justice including social justice, in liberty, in equality, I value our constitutional freedoms and rights, I am an Indian though sometimes I wonder if that is a curse. I am anti-war, anti-imperialist, against exploitation of people, anti-corruption, anti-propaganda. I vehemently speak and defend the truth. For me the truth is everything.
So just because I refuse to be a nationalist does not make me anti-national.
Note that Kanhaiya Kumar has not waged war on the State. He has not committed treason. He is only detained not even charged yet under the sedition provision 124A IPC. Evidence shows that he shouted slogans peacefully with no call for violence to overthrow the India State. So obviously the crime of sedition is not made out.
Now some JNU students might reject the BJP and RSS discourse on nationalism but that does not make them anti-national.
Also no law exists in India which makes it a crime to be "anti-national". If such a law were ever enacted it would be struck down as being unconstitutional.
As lawyers we must appreciate these distinctions and these nuances of constitutional law.
We've seen this before ... people like Afzal Guru, Yakub Memon, Kasab etc denied a fair and open trial and having to undergo trial with inadequate legal representation - where lawyers have rioted or resorted to violence and demanded that no lawyer represent a terrorist.
But how come no lawyers were upset by Mahesh Jethmalani representing David Headley or by lawyers representing Sanjay Dutt in the Bombay bomb blasts case.
For me the pardon granted to David Headley and supported by the Indian Government is the most anti-national of acts. Why did the lawyer community which wears its nationalism on its sleeve not get offended by David Headley being pardoned.
Before anyone claims this pardon was necessary to secure his testimony, let me point out first that Headley was legally obligated to testify in his India trial whether he wanted or not under his plea agreement with the US government.
https://www.youtube.com/watch?v=21qExVVuhhk
She talks of funeral dirges replacing the national anthem and of seceding, is this sedition?
The Myth of Benign Group Identity: A Critique of Liberal Nationalism
Jamie Mayerfeld
Polity
Vol. 30, No. 4 (Summer, 1998), pp. 555-578
http://ocw.mit.edu/courses/political-science/17-524-nationalism-fall-2004/readings/
http://oyc.yale.edu/history/hist-202/lecture-13
This was Nazi lingo for Jews.
These are extraordinary times and I hope the Supreme Court responds to the situation.
The failure to carry out the Supreme Court's directions in Patiala House on 17th Feb by the Modi Government and the Delhi Police (Bassi incidentally visited the PMO that morning and emerged even more arrogant and imperious) looks like deliberate defiance of the Supreme Court by the executive.
Bassi said things like aage aage dekhiye hota hai kya on that morning and the possibility of his appointment as information commissioner was leaked that same day, which thankfully has now been scuttled after public outrage.
I hope the Supreme Court Judges come down strongly against the emerging fascist tendencies in the State (read the BJP Government) as well as in some right-wing communities.
The Police has also become a law unto itself and as legislative reforms are not on the horizon, some exercise of judicial power against a person like Bassi would do a lot of good. The Supreme Court should haul up Bassi for contempt of court.
See http://www.firstpost.com/india/supreme-court-to-hear-contempt-plea-against-kanhaiya-geelani-on-monday-2635686.html
This petition claims that "The so-called cultural event's pamphlets spoke about the judicial killing of Afzal Guru. The main topic of the 'cultural event' organised was judicial killing of Afzal Guru which outright tantamount to criminal contempt as the respondents are calling the judges of the apex court as killers who have been projected to have committed judicial killing of Afzal Guru" and that "Afzal and Yakub Memon were no martyrs as projected by the group of students of JNU. The Supreme Court has already passed a detailed judgement in both cases after giving due consideration as per law after going through the evidence,"
The Supreme Court of India ought to outright dismiss this misconceived and obviously motivated petition which has most likely been filed at the behest of the BJP Government, the RSS and the Delhi Police.
The phrase "judicial killing" is widely used and established terminology to descriptively refer to the death penalty or capital punishment in academic and activist literature and in media discussions and reports.
The use of the term "judicial killing" by JNU students in describing Afzal Guru's execution was therefore only an instance of this established and common usage of this term. JNU students are likely to have read academic and activist literature where this term would be found. It is therefore not a case where such usage should be penalized as contempt of court.
Reproduced at http://seemasapra.blogspot.in/2016/02/does-using-term-judicial-killing-to.html are just a few examples of where and how the term "judicial killing" is used in academic and activist literature and in media discussions and reports.
Just one example here. This academic paper was presented at a conference at JNU in 2009.
State Killing in Asia: On the Relationship between Judicial and Extra-Judicial Executions, David T. Johnson, Professor of Sociology, University of Hawaii, @hawaii.edu, Inaugural Conference of the Law and Social Sciences Research Network, Centre for the Study of Law and Governance, Jawaharlal University, New Delhi, January 8-11, 2009
Panel 4.3, “Law’s Violence”, Saturday January 10, 2009, 11:45-13:00
http://www.lassnet.org/2009/readings/johnson08judicial-extra-judicial-killings.pdf
The Next Frontier : National Development, Political Change, and the Death Penalty in Asia: National Development, Political Change, and the Death Penalty in Asia, Manoa David T Johnson Professor of Sociology University of Hawaii, Berkeley Franklin E Zimring William G. Simon Professor of Law and Wolfen Distinguished Scholar University of California
Oxford University Press, USA, 29-Dec-2008
Appendix G of this book refers to judicial killing and extra-judicial killing
https://books.google.co.in/books?id=ZyIsBaNkfkUC&pg=PA513&lpg=PA513&dq=%22judicial+killing%22+capital+punishment&source=bl&ots=9dxUiPV9Ca&sig=p0E3LgrS3gRqXK5SiZCMtL3j89A&hl=en&sa=X&ved=0ahUKEwihs9Dik4jLAhWLSY4KHZ5bACwQ6AEIPzAH#v=onepage&q=%22judicial%20killing%22%20&f=false
When the State No Longer Kills: International Human Rights Norms and Abolition of Capital Punishment, Sangmin Bae
SUNY Press, 05-Jun-2008
The phrase judicial killing is used at page 92 of this book
https://books.google.co.in/books?id=paUCC28vFdMC&pg=PA95&lpg=PA95&dq=%22judicial+killing%22+capital+punishment&source=bl&ots=ZGISmMAxyS&sig=UQ85NFRYnUnvezz6zI1LrvBCMKI&hl=en&sa=X&ved=0ahUKEwjir8jeiojLAhXCPo4KHWLEACQ4FBDoAQgvMAQ#v=onepage&q=%22judicial%20killing%22%20&f=false
Death Penalty: A Cruel and Inhuman Punishment, Luis Arroyo Zapatero, William Schabas, Kanako Takayama, Marta Muñoz de Morales, Universidad de Castilla-La Mancha, uclm Ediciones de la Universidad de Castilla La Mancha, 20-Jan-2015
The phrase judicial killing is used on page 113 of this book.
https://books.google.co.in/books?id=DwpBBgAAQBAJ&pg=PA113&lpg=PA113&dq=%22judicial+killing%22+capital+punishment&source=bl&ots=ArbuGkZt1f&sig=IISx4eHAfCxkyU3lAzcW6J1HCmY&hl=en&sa=X&ved=0ahUKEwihs9Dik4jLAhWLSY4KHZ5bACwQ6AEIMzAE#v=onepage&q=%22judicial%20killing%22&f=false
According to an India Today news report http://indiatoday.intoday.in/story/rajiv-gandhi-killing-death-sentence-judicial-murder/1/155142.html Former Supreme Court judge K.T. Thomas criticized the death sentence as "judicial murder".
A Guardian editorial dated 24 August 2010 was titled "Death penalty: judicial killing in the free world" see http://www.theguardian.com/commentisfree/2010/aug/24/death-penalty-judicial-killing
Policing the State, Second Edition: Democratic Reflections on Police Power Gone Awry, in Memory of Kathryn Johnston (1914-2006), Louis A. Ruprecht, Wipf and Stock Publishers, 22-Oct-2015
This book uses the term judicial killing.
https://books.google.co.in/books?id=ve4mCwAAQBAJ&pg=PT112&lpg=PT112&dq=%22judicial+killing%22+capital+punishment&source=bl&ots=xn3N2mFh8C&sig=JotfraNKI-WHdW6j0dW9DVlLNaA&hl=en&sa=X&ved=0ahUKEwihs9Dik4jLAhWLSY4KHZ5bACwQ6AEIPDAG#v=onepage&q=%22judicial%20killing%22%20&f=false
State Killing in Asia: On the Relationship between Judicial and Extra-Judicial Executions, David T. Johnson, Professor of Sociology, University of Hawaii, @hawaii.edu, Inaugural Conference of the Law and Social Sciences Research Network, Centre for the Study of Law and Governance, Jawaharlal University, New Delhi, January 8-11, 2009
Panel 4.3, “Law’s Violence”, Saturday January 10, 2009, 11:45-13:00
http://www.lassnet.org/2009/readings/johnson08judicial-extra-judicial-killings.pdf
The Death Penalty: A Worldwide Perspective, Roger G. Hood, Carolyn Hoyle, Oxford University Press, 2015
This leading authority on the death penalty now in its fifth edition uses the term judicial killing.
This Amnesty UK blog uses the term judicial killing https://www.amnesty.org.uk/blogs/press-release-me-let-me-go/capital-punishment-dying-out-still-killing
The Genesis Debate: Persistent Questions About Creation and the Flood, Ronald Youngblood
Wipf and Stock Publishers, 21-Dec-1999
This book uses the term judicial killing.
Women and Capital Punishment in the United States: An Analytical History, David V. Baker McFarland, 23-Nov-2015
This book uses the term judicial killing.
An article by former police officer R K Raghavan published in the Hindu used the term judicial killing. See http://www.thehindu.com/opinion/lead/nitish-katara-murder-case-the-multiple-costs-of-death-penalty/article7754039.ece
Literature published by the ACADP, the Australian Coalition Against Death Penalty uses the phrase judicial killing.
http://acadp.com/
The phrase judicial killing was used as early as 1890 in Pentecost, Hugh O. (Hugh Owen), 1848-1907, “The Crime of Capital Punishment,” The Libertarian Labyrinth, accessed February 20, 2016, http://library.libertarian-labyrinth.org/items/show/283.
The academic paper Billy Budd and Capital Punishment: A Tale of Three Centuries by H. Bruce Franklin, AMERICAN LITERATURE, June 1997 uses the term judicial killing.
http://andromeda.rutgers.edu/~hbf/bbcap.htm
2007 Article titled - Japan’s way of judicial killing - published in the Japan Times at http://www.japantimes.co.jp/life/2007/04/08/to-be-sorted/japans-way-of-judicial-killing/#.VslelPl97IV
Article titled - The death of Ronald Ryan - in the Australian newspaper the Age used the words judicial killing http://www.theage.com.au/news/in-depth/the-death-of-ronald-ryan/2007/02/01/1169919473225.html
Article titled - The Murderers of Dhananjoy Hazir Ho! Abolish Death Penalty - on the website of the Peoples Union for Democratic Rights uses the words judicial killing. http://www.pudr.org/?q=content/murderers-dhananjoy-hazir-ho-abolish-death-penalty
The Annual report of the United Nations High Commissioner for Human Rights and reports of the Office of the High Commissioner and the Secretary-General presented to the UN Human Rights Council, Thirtieth session used the words judicial killing.
A 2006 Financial Times article titled - China finds it is time to reflect on its judicial killing fields - at http://www.ft.com/cms/s/0/4f6daee8-c82a-11da-a377-0000779e2340.html#axzz40nC2Sx1v
A Sydney Morning Herald editorial titled - Opposition to the death penalty is a moral absolute - used the words judicial killing http://www.smh.com.au/comment/smh-editorial/opposition-to-the-death-penalty-is-a-moral-absolute-20150304-13vmjf.html
The list is endless. Judicial killing is a common and established term used to refer to the death penalty in academia, in activist literature, in human rights literature, in news articles and in any discussion of capital punishment. The use of this term by JNU students to refer to the execution of Afzal Guru was not contempt of court.
Whenever something out of the ordinary happens, we must question what exactly is going, who is benefiting and who could be behind it.
Now on 17th Feb, we were told in news reports that Kanhaiya had given a hand-written statement to the Court. Some reports stated he had actually written down this in court. The reports were that in this statement, Kanhaiya condemned the anti-national slogans, said he had full faith in the Constitution, and was an Indian etc.
B S Bassi referred to this statement when he stated on record on 17 Feb that the Police would not oppose bail for Kanhaiya.
Yet apparently the police counsel did not support the bail plea before the Supreme Court on the 19th.
On the 19th, reports were published that the NHRC had found that Kanhaiya's statement was not voluntary, was dictated by the police and Kannhaiya was psychologically pressured.
Whenever something out of the ordinary happens, we must question what exactly is going on, who is benefiting and who could be behind it.
Now on 17th Feb, we were told in news reports that Kanhaiya had given a hand-written statement to the Court. Some reports stated he had actually written this sitting in court. The reports were that in this statement, Kanhaiya condemned the anti-national slogans, said he had full faith in the Constitution, and was an Indian etc.
B S Bassi referred to this statement when he stated on record on 17 Feb that the Police would not oppose bail for Kanhaiya.
Yet apparently the police counsel did not support the bail plea before the Supreme Court on the 19th.
On the 19th, reports were published that the NHRC had found that Kanhaiya's statement was not voluntary, was dictated by the police and that Kanhaiya was psychologically pressured.
Now why this sudden shift in facts on Kanhaiya's written note? Who benefits from it? This note would have helped Kanhaiya get bail. Will the State counsel now argue that Kanhaiya is unrepentant and needed for further interrogation?
Also why would the NHRC suddenly get involved in this matter suo moto while the case was before the Supreme Court. Kanhaiya's note is before the Metropolitan Magistrate and also likely before the Supreme Court as part of the various documents filed there or at least mentioned in those reports.
This news report http://www.livelaw.in/physical-assault-on-kanhaiya-kumar-in-patiala-house-court-is-organized-and-pre-planned-nhrc-report/#.VsiRjSN82AN.twitter states that
"On 18th February, 2016, the Acting Chairperson, NHRC directed that a team comprising Shri. C. K. Chaturvedi, Registrar (Law) and Sh. S. K. Jain, SSP (Investigation) may visit Central Prison, Tihar to assess arrangements made and measures taken to ensure safety and security of Shri Kanhaiya Kumar in the prison and to ascertain the apprehensions, if any, in his mind with regard to his safety and security. The team also had agenda to ascertain the treatment meted out to him by the police and prison authorities while in custody and whether the statement released to the press by the Commissioner of Police, Delhi in the name of Shri. Kanhaiya Kumar was made by him voluntarily and without any extraneous influence."
Shouldn't these questions have been put to Kanhaiya by the Court (the MM, or the High court or the Supreme Court) in an open and public hearing. Why is the NHRC interfering in a subjudice matter on a document that the Court is seized off?
Very conveniently for the Police the NHRC report also records that Kanhaiya has not complained of any mis-treatment by the Police.
But can we simply believe all this.
In the normal course in a open hearing, journalists, supporters etc would have heard Kanhaiya speak on these questions.
Now all we have is a NHRC report where the Commission members have not met Kanhaiya but a police officer and registrar have met him and that too in jail. Can we trust this NHRC report? I would not.
I hope the High Court or the Supreme Court have Kanhaiya produced where he can be allowed to speak directly to the court in a public and open hearing.