Letter to the AMU Committee : Justice (r) Katju
I read on Indianexpress.com that AMU has constituted a committee to go into the recent incident in AMU whereby a namaz-e-janaza was held for the killed Kashmiri militant Mañan Wani and some slogans shouted for azadi for Kashmir, resulting in suspension and arrest of some students and show cause notices to them.
Will someone please place this note of mine before the committee :
I understand that AMU has constituted you gentlemen as a 3 member committee to enquire into the recent incident in AMU in which a namaz-e-janaza was held for slain Kashmiri militant Mañan Wani and slogans for azadi shouted.
In this connection I wish to say that namaz-e-janaza is part of the fundamental right in Article 19(1)(b) of the Constitution of assembling peaceably and without arms. Though of course it can be regulated by the authorities to ensure public order, it cannot be prohibited altogether even within the AMU campus.
Shouting slogans for azadi is part of the fundamental right of freedom of speech guaranteed by Article 19(1)(a) of the Constitution.
I want to clarify the law to you. Demanding azadi by itself is no crime. Many people demand it in India, e.g. Khalistanis, Kashmiris, some North East people, etc. Scotland often demands independence from U.K. and Quebec from Canada. Such a demand becomes a crime if one goes further and commits or organises violence or instigates to imminent violence ( see Supreme Court judgment in Sri Indra Das vs State of Assam ).
The ‘clear and present danger’ test laid down by the celebrated Justice Holmes of the US Supreme Court in Schenck vs US has been accepted by the Indian Supreme Court in Govt of Andhra Pradesh vs P. Laxmi Devi ( see online, para 79 ), and the ‘imminent lawless action’ test laid down by the US Supreme Court in Brandenburg vs Ohio has been accepted by our Supreme Court in Arup Bhuyan vs State of Assam and in Sri Indra Das vs State of Assam ( see online ).
Hence it is evident that these students were excercising their fundamental rights under the Constitution. Their acts did not constitute a clear and present danger of a violent uprising against the state.
As such you are duty bound to exonerate them