Welcome bail for JNUSU President, worrisome bail-order

This is an AHRC Statement. 
Photo from JNU activist Ishan Anand's wall

Mr. Kanhaiya Kumar, President of Jawaharlal Nehru University Students Union (JNUSU), is finally out on interim bail following a Delhi High Court order. Kanhaiya has just spent 20 days in police and judicial remand on the charge of sedition.

The manner and facts surrounding his arrest, charge, and detention have caused much consternation. Many eminent jurists have questioned the legality of even his arrest, never mind the serious charge of sedition, something that harks of black colonial eras.

Evidence based on doctored videos, a relentless trial by media against “anti-national” Jawaharlal University (JNU) students, and the feeling that this is but a juvenile vendetta orchestrated by the government stand out amidst the cacophony.

Furthermore, the frenzy created by a section of media against the “anti-national students of JNU” culminated in lawyers attacking Kanhaiya, as well as JNU students, teachers, and media personnel inside the Patiala House Court in Delhi, with the police choosing to look away.

Seen from one prism, news of Kanhaiya’s bail is welcome. However, a closer look at the bail-order itself makes it clear that the judge has stepped into territory above and beyond a judges brief.

The Bail-order reflects the insinuations against Mr. Kanhaiya and the whole of JNU as facts, and brings unnecessary comparisons with soldiers protecting the borders of the country and the students. The Order goes against various decisions of the Supreme Court that differentiate between advocacy and incitement and criminalise only the latter.

In stark opposition to decisions of the Supreme Court in cases like Kedar Nath Singh vs. State of Bihar (1962 AIR 955), Balwant Singh and Anr vs. State of Punjab (Criminal Appeal 266 of 1985), Arup Bhuyan vs. State of Assam (Criminal Appeal no(s). 889 of 2007) and Sri Indra Das vs. State Of Assam (Criminal Appeal 1383 of 2007), this Bail-order observes that:

“It is a case of raising anti-national slogans which do have the effect of threatening national integrity…”

The decision of the Supreme Court in the Balwant Singh case is relevant in this context. A charge of sedition was slapped on the accused for a similar offence, i.e. of shouting slogans against India and shouting Khalistan Zindabaad (Long live Khalistan) and Raj Karega Khalsa (Khalsa will rule now onwards).

In that case, the Court had observed the following:

“It appears to us that the raising some slogan only a couple of times by the two lonesome appellants, which neither evoked any response nor any reaction from anyone in the public can neither attract the provisions of Section 124A or Section 153A IPC. Some more overt act was required to bring home the charge to the two appellants, who are Government servants. The police officials exhibited lack of maturity and more of sensitivity in arresting the appellants for raising the slogans - which arrest – and act the casual raising of one or two slogans – could have created a law and order situation, keeping in view the tense situation prevailing on the date of the assassination of Smt. Indira Gandhi. In situations like that, over sensitiveness sometimes is counterproductive and can result is inviting trouble. Raising of some lonesome slogans, a couple of times by two individuals, without anything more, did not constitute any threat to the Government of India as by law established not could the same give rise to feelings of enmity or hatred among different communities or religious or other groups.”

The Bail-order in the Kanhaiya case does not only go against established jurisprudence, it also hitches itself to the bandwagon of executive overreach, in criminalising any dissent hereafter and the slapping of sedition charges on any behaviour/acts that the executive may find reason to dislike.

The learned judge has also used analogies like infection, gangrene, and amputation in the order. For instance, the order also states:  

“Whenever some infection is spread in a limb, effort is made to cure the same by giving antibiotics orally and if that does not work, by following second line of treatment. Sometimes it may require surgical intervention also. However, if the infection results in infecting the limb to the extent that it becomes gangrene, amputation is the only treatment.”

The reason behind using such an analogy is hard to comprehend; the impact, in such a charged atmosphere, is not. The judge had the responsibility of assessing the criminality alleged in the act and discharging the bail petition in light of the evidence.

Going beyond this responsibility and making such observations and analogies can prejudice the investigation on one hand and incite even more violence against the accused on the other.

Judicial over-reach in the form of judges giving vent to their personal prejudices is something of a trend in India. Recently, in the National Herald case, the Supreme Court had to expunge the observations of the same Delhi High Court:

“We are of the view, that it was not open to the High Court to record any firm conclusions, and the same ought to have been left to the Trial Court, to be rendered after recording evidence in the matter. Accordingly, we hereby expunge all final inferences and conclusions drawn by the High Court, on the various factual aspects in the matter.”

In the Kanhaiya case too, there is a pressing need for the remarks of the judge to be expunged so that the law can take its own course, in a free and fair manner. Without restraint in their orders, judges can negatively impact the entire body politic of the republic.