Saturday, December 4, 2021

Is Preamble reciting a crime?

Delhi court judge Kamini lau

When Dalit leader Chandrasekhar Azad has protested against Citizenship Amendment Act in 2020 by reading Preamble and flashing copies of Indian Constitution, the Delhi police slapped him with several criminal cases. The matter reached the Delhi Court for bail. Delhi Court Judge Kamini Lau, while hearing the bail petition of Chandrasekhar Azad, and his call for protests and dharna near Jama Masjid asked, “What is wrong with dharna? What is wrong with protesting? It is one’s constitutional right to protest.” She further asked: “Where is the violence? What is wrong with any of these posts? Who says you cannot protest?  Have you read the constitution?“.  “You are behaving as if Jama Masjid is Pakistan. Even if it was Pakistan, you can go there and protest. Pakistan was a part of undivided India”, the judge told the Prosecutor.  She commented: “In the colonial era the protests were out on the roads. But your protest can be legal, inside the courts. Inside the parliament things which should have been said were not said and that is why people are out on the streets. We have full right to express our views but we cannot destroy our country.“

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The judge also added that none of the posts of Azad were unconstitutional and reminded the Prosecutor that one had the right to protest. When the Prosecutor replied that permission had to be taken for protests, the Judge said “What permission? SC has said repeated use of 144 is abuse (referring to recent Kashmir case decision)”.

Chandrasekhar Azad

The Judge also added that she has seen many people who had protested outside Parliament going on to become leaders and ministers later on. The judge also commented that Azad was a “budding politician” who had the right to protest. “I want you to show me under which law is it prohibited for someone to protest outside religious places”, she asked the prosecutor.

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Tagore’s poem

While giving bail to accused, Judge said:

…for the judges, legal persons and offices under the Constitution, the Constitution is a sacred document and if this is correct, then reading this document cannot prima facie be taken as incitement. The Preamble of the Constitution is a brief introductory statement that sets out the guiding purpose, principles and philosophy of the Indian Constitution”.

The court granted bail to the accused. She observed that while exercising right to peaceful protest, no corresponding right of another is violated, and said: Of course, it goes without saying that protests lead to inconvenience but it has to be ensured that these protests do not last for a long time at public places under public use. In the instant case, the protest call was only for one day and the march was from Jama Masjid to Jantar Mantar.

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Judge Lau had heavily criticized the prosecution for justifying Azad’s arrest on the basis of his social media posts calling for protests. Every citizen has the constitutional right to protest, said the judge. The judge had slammed Tihar jail for failing to provide medical treatment at AIIMS to Azad for his medical condition ‘Polycythemia’. The Court then directed to provide Azad treatment at AIIMS for his special medical condition. https://www.livelaw.in/news-updates/you-are-behaving-as-if-jama-masjid-is-pakistan-judge-tells-prosecutor-chandra-shekhar-azad-bail-151609

Finally Judge Dr Kamini Lau stated that she was reminded of reverend patriot Rabindra Nath Tagore, “who is most relevant today”. The judge went on to state that during the colonial era, when British was following the policy of divide and rule, Tagore had visualized a nation where there is no fear in the mind of people and education and enlightenment was attained by all. She then quoted from Tagore’s poem “Where the mind is without fear…”.

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Reading preamble is a symbol of protest

The Preamble of Indian Constitution has assumed great importance and relevance recently due to the unconstitutional measures of the governments, and people started reciting it as symbol of protest. Since 2020, the public readings of the Preamble besides becoming popular as a form of protest and a reminder to the government to adhere to the principles enshrined in the Constitution. Scores of protests and programmes to resist the CAA have been marked by protesters holding up copies of the Constitution and public readings of the Preamble. That way the Preamble has transformed from text to a socially dynamic statement.

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The objective behind reading the preamble was to “instill confidence among crores of people across India that our Constitution says the country is secular and a democratic republic”. “The CAA when combined with NRC (National Register of Citizens) becomes a lethal combination as the amendment to it excludes one particular community. It is discriminatory and arbitrary to do so. The Constitution did not allow anyone, including the government, to divide or distinguish its citizens on the basis of religions and hence what is being done is wrong. The new law grants Indian citizenship to Hindus, Christians, Sikhs, Buddhists, Parsis and Jain refugees from Pakistan, Afghanistan and Bangladesh who entered India on or before December 31, 2014.

Also read: P R Ramachander, a writer of Hindu Epics and Stotras

(26 November 2021 is the 72nd constitution day)

Prof. M. Sridhar Acharyulu
Author is Dean, Professor of law at Mahindra University at Hyderabad and former Central Information Commissioner. He published a number books in English and Telugu.

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