Dear senior academicians, while there can be no challenge to the good cause and faith of yours in protecting the independence and freedom of academics in the universities around the globe, there are several questionable words and inferences in the solidarity statement issued in connection with the JNU row. Starting from the sixth word “shameful,” many words in the letter of solidarity are frenzied. Such words, in a public statement, are not appreciable especially when the situation pertains to law and order.
In referring to the Section 124A Indian Penal code as historically unlawful, owing to its origins in the colonial regime, their argument has patently erred. The text of Section 124A satisfies all the post-colonial standards of the legal conscience of the international community. It is not the right to dissent that is being condemned or penalised in the section. Section 124A penalises ‘hatred’, ‘contempt’, ‘disaffection in terms of disloyalty and enmity’.
The Explanations I and II of the Section 124A IPC clearly give sufficient safeguard to protest and dissent using non-violent legal methods. The only mandate of Section 124A IPC is that dissent or protest should not excite or attempt to excite hatred and enmity. The known international legal standards for such a mandate being Article 20 and 21 of International Covenant on Civil and Political Rights, 1966 (ICCPR). I humbly submit that ICCPR is not a colonial construct and also, therefore, Section 124A IPC satisfies all the standards it ought to satisfy therewith. The text of Article 20 is very plain in its meaning that any incitement or “advocacy of national, racial and religious hatred…shall be prohibited by law.”
Now, if the authors of solidarity letter were referring to political justice the outside legal order, even then the action of the Indian state cannot be condemned. The only highlighted event in the letter is the arrest of Mr. Kanhaniya Kumar, and some isolated remarks on the controversial arrest. The humble submission here is that if the reasoning of the letter pertains to be political rather than legal, then the authors did not have that leverage to isolate the event from the larger socio-political scenario of India.
The source of the video which the letter relies as evidence to relieve Mr. Kumar from charges is not clear. Assuming the video to be the 23:03 minute long one available on the internet published on February 12, 2006, in which Mr. Kumar is seen campaigning against ABVP (Akhil Bharatiya Vidyarthi Parishad) and RSS (Rashtriya Swayamsevak Sangh), the question to the authors of the letter would be “how far can the content be seen as an isolated event from the previous day’s events, in which the death of a terrorist was being mourned, for instance, at International Courts or in the United Nations Security Council, a political body, for that matter.”
Further, the emotional address which Mr. Kumar gave to the gathered pupils and the previous day’s events would be a matter of little importance to foreign spectators, but, for Indians, they were highly potent in terms of furthering religious or political polarisation. Use of words and phrases like “mobilisation” and “culture of authoritarian menace” in the letter of solidarity seems to contain the same vigour! There are similar contents in the video which can justify the arrest, which I skip as I do not exempt myself from not commenting on matters that are sub judice.
Now let us posit the complete set of events in the larger picture of the right of Kashmiris to self-determination, which would provide shelter to (yet not justify) the entire course of these events under the garb of humanitarian concerns and human rights discourse. It is contended that “the right to self-determination to all peoples” in various international legal and political documents, such as the UN Charter, ICCPR, or the 1960 Declaration Granting Independence to Colonial Countries and Peoples and the 1970 Declaration of Principles of International Law Concerning Friendly Relations and Co-operation among States in accordance with the Charter of the UN, is seriously limited in terms of means of implementing it with proper standards and specific procedures. Despite the promotion of this right (essentially a Euro-centric concept) in every realm of life, the international academic community including the authors of the letter and myself is not able to arrive at a definition of what a ‘people’ means.
To allow this right as applicable in every imaginable way, to every claimant of separate territory or cultural autonomy, in a country as heterogeneous as India is highly improbable. If the entity of ‘India’, with a balanced and written Constitution, fails to hold its communities together, then no other smaller entity is going to do that. The population of every small part of the Indian territory is unimaginably multi-ethnic. Moreover, the anxiety of several Indians about foreign interests wanting to create a conflict zone in Kashmir is well-grounded, given the larger Asian question. Assuming that India and Pakistan withdrew from Kashmir owing to plebiscite or any other political method, any person knowledgeable of contemporary history can foresee a Kashmir occupied by international forces as is the case in East Timor or Kosovo.
Further, even if we try to apply the customary and humane sanction of this right and justify the case of Kashmiri independence, there are several political obligations and duties the people exerting such claims are ought to follow, which people like Afzal Guru didn’t. Even when we morally justify use of force by liberation movements, the international political and legal conscience strongly condemns terrorising people. It must be clearly understood that it is not just the states that are under obligation.
The United Nations Security Council has demanded non-state actors (even small groups of people) to comply with standards of peace-making and conflict prevention, in many instances. This includes obligation not to foment hatred and feelings of insecurity. Also, Judge Cançado Trindade, who has worked so much for the humanisation of International Law and juridical conscience, seems to accept this responsibility of ‘peoples’ seeking self-determination. His ICJ (International Court of Justice) judgement on Kosovo’s independence clarifies it. Therefore, the alleged instances on February 9th and 10th clearly can be condemned by an ‘impartial observer’, contrary to your submissions in the letter of solidarity.
Of course, I do honour the cause of the letter to the extent that the State handled the issue immaturely and that a State cannot afford to do so. But, the international academicians should not have followed suit by joining one of the sides which contributed to the controversy. I accept there is a slight over-emphasis on the subject on my part, but when I look at words in the solidarity letter such as ‘mobilisation’ and ‘culture of authoritarian menace’, I stand justified too.