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.
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