The law on granting sanction for prosecution imposes a duty on the government concerned to apply its mind to the facts of each case and render a decision based on its assessment whether, prime facie, a case has been made out. The process cannot be based on a uniform policy. The Aam Aadmi Party (AAP) regime’s justification that it cleared the prosecution of former JNU students’ union leader Kanhaiya Kumar and others on charges of sedition and conspiracy because it adopts a policy of non-interference in judicial matters is completely unacceptable. Superior courts have repeatedly stressed that giving sanction is not a mechanical process, but requires application of mind. The government is required to decide whether there is enough material to conclude that the speech or slogans had a tendency to create public disorder or contained incitement to violence. The prior sanction norm is a vital procedural safeguard against frivolous prosecution. The sanction requirement has seen criticism only in corruption cases, as the power could be used to shield corrupt public servants. However, the sanction contemplated by Section 196 of the CrPC, for “offences against the state” in the Indian Penal Code, as well as “conspiracy” to commit them, is different. Such sanction is also needed for Section 153A (promoting enmity between different groups) and Section 295A (malicious acts intended to outrage religious feelings). The reason is that a police officer’s understanding of the offence should be subject to the government’s scrutiny so that these provisions are not unlawfully used against free speech.
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In reducing its role to a policy that only the judiciary can decide the case on merits, the Delhi government has done a disservice to those charged with the serious offence under Section 124A. Mr. Kumar and nine others were booked for allegedly supporting “seditious” slogans raised during an event at JNU on February 9, 2016. The Delhi police filed a charge sheet in January 2019. There was criticism from the ruling BJP that the AAP government was delaying the grant of sanction. There was a court deadline for the regime to give its decision. However, this did not mean that it was asked to accord sanction mechanically. After video footage purportedly showing the students raising “anti-India” slogans was found to be doctored, one would have thought the NCT government would be wary of endorsing the police claim. Moreover, the decision goes against the emerging body of opinion that the sedition provision needs to be revisited, if not scrapped altogether. The political narrative behind the belated grant of sanction may be that Mr. Kejriwal and his party might not want to concede the nationalistic space entirely to the BJP. What is of greater concern is that its action may end up legitimising the imaginary construct that these students and their supporters constitute a ‘tukde tukde’ gang bent on breaking up the country.