Sedition or rather disputes surrounding sedition are the flavor of the season. Both in Jawaharlal Nehru University (JNU) and Hyderabad Central University (HCU) conversations around nation, nationalism, freedom, democracy and dissent have been doing the rounds.

There have been demands to amend the IPC and weed out those protections which the colonial State felt it needed not to win affection but to regulate disaffection.

Does the State in independent India need similar insulation from the criticism, dissatisfaction of its people?

These are important questions and need to be discussed at a range of fora including Legally India. For this piece today I am sidestepping the substantive issue and concentrating on the fact of procedure.

Till an offence stays on the statute book, there is always a likelihood that individuals or groups can be charged of having committed that offence. Or in today’s times you could have people or television channels play judge, juror and executioner rolled in one.

Requirements of Legality

What does the presumption of innocence mean in such times? The Constitution guarantees that no one shall be deprived of life and liberty other than by a statutorily enacted fair procedure. It also provides a right to legal representation and judicial oversight of all deprivations of liberty.

In times in which these protections are progressively becoming mechanical chants, there is need to create discourse whereby the fundamental right to life and liberty, which cannot be suspended even in an emergency, becomes embedded in the everyday operation of our lives.

It is important to realize that just the performance of an act by a legal functionary is not sufficient to ascribe legality to it. The performance of an act in accordance with the text of the law is also not enough to render it legal.

To obtain the stamp of legality it is important that the legal functionaries act in accordance with both the text and objective of the legislation from which they draw power, and advance the higher values, which inform the legislation.

The aforementioned propositions surrounding the right to life and liberty seem self-evident and unexceptionable. In what follows I do a quick recall of the JNU-HCU imbroglio to bring home how the self-evident has become exceptional.

Arrests in breach of Law

On 9^th of February the shouting of anti-India slogans at a meeting in JNU was aired on television by some select channels.

On the strength of that screening the Delhi police arrested the JNUSU president and sought his remand in police custody to enable them to question him. It is to be noted that the police did not check the authenticity of the videos screened on television before making the arrest, even though section 41 of the Criminal Procedure Code requires an arrest to be made if an offence is committed in front of the police or a reasonable complaint has been made or if they receive credible information or have a reasonable suspicion of an offence being committed.

It is important to ask whether the screening of the video on television meets the standard. And yet the President of the Student Union was arrested without even a modicum of preliminary investigation.

In direct contrast the acts of violence by lawyers in the presence of the police invited no action.

At HCU on the other hand, on the strength of a complaint of vandalism by the Registrar, 24 students, 2 faculty members and one film maker were arrested.

The police were not present when the alleged offence was committed, thus they acted on the complaint of the Registrar alone.

The indiscriminate nature of the process can be seen by the fact that Prof Ratnam one of the faculty members arrested was in a selection committee till 2 pm, when the alleged incident had occurred from 9.30 to 10.30am. The film maker was a bystander and the second faculty member Tathagata Sengupta was attempting to quieten frayed tempers.

According to section 41, the police should make the arrest only if the matter cannot be investigated without taking the alleged accused into custody. A judgment they could exercise only if they had apprehended with discernment. An indiscriminate rounding up does not allow for the exercise of such judgment.

Interestingly, after the faculty, students and the lone filmmaker were bundled up in the van and taken away, all queries by family and faculty met with the response that the rounded up persons had been taken away only to quieten matters and no case shall be made out.

Contrary to these assurances the faculty, students and the film maker were produced before a judicial magistrate and remanded to judicial custody. If the police believed that the concerned persons had committed an offence, for which they should be prosecuted, then why was arrest not effected in accordance with the procedure provided in section 41B of the Criminal Procedure Code?

Most importantly, section 41B required a memo of arrest to be created which carries the names and addresses of all arrested persons, attested by the family or other respectable persons present at the place of arrest.

Section 41B (c) requires the police to inform the arrested person of their right to have a chosen member of family or to be informed. Instead of fulfilling this statutory duty, the police were playing a game of catch me if you can, with the lawyers, family and friends of the arrested persons. The manner in which this game was played has been documented in detail by the SC/ST Faculty and Concerned Teachers of HCU (http://kafila.org/2016/03/25/)

Magisterial Oversight of Arrests

The Criminal Procedure Code outlines the seriousness accorded to the deprivation of liberty. Arrests are meant to be serious business and an investigation is not meant to begin by apprehending the accused.

However both the JNU and the HCU episodes show the casualness with which the arrests were effected in breach of all procedure established by law. Whilst even the text of the law was given a go by in making the arrests, a notional nod was made to the statute as regards obtaining magisterial approval of the arrest.

The accused are to be produced before the Magistrate to determine whether arrest was required. In both cases, this question was not even considered and continuance was mechanically provided.

In the case of Kanhaiya Kumar, the custody was routinely continued when the police was unable to produce the accused before the Magistrate.

And in the HCU case the Magistrate ordered judicial remand in a blink and miss procedure, which the lawyers, family and friends came to know from the ticker tape on television.

The Policeman is not law

Our Constitution makes liberty the default position for all persons.

Deprivation of liberty has to be argued and justified.

The above vignettes from the JNU and HCU show that in both cases the deprivation has been effected through police fiat and mechanical oversight by the judiciary.

In my undergraduate days, in those interminable discussions on what is the law, a rhetorical question we were often asked was whether the policemen was the law.

The discussion generally concluded by answering the question in the negative, even as it was conceded that for the general populace the policeman was the law, even when he was acting in breach of the rules of law.

The events in two leading universities of the country have provided a nationwide confirmation, of this disempowering popular perception.

It is therefore necessary to repeat, as many times as possible, that the policeman is not the law, he is at best an agent of the law provided he functions in accordance with the rule of law. Any action in breach of the rule is only deviance, dereliction and disobedience. No country that claims to be a rule of law regime can afford such dereliction.

Amita Dhanda is professor of law at Nalsar Hyderabad.