The order of the Delhi High Court granting interim bail to JNUSU President Kanhaiya Kumar is not an easily comprehensible order. It indicates that the court has:
A. Heard arguments of both parties
B. Reproduced them faithfully
C. Discussed the basic legal principles governing bail
D. Granted interim bail to Kanhaiya Kumar
What is truly baffling is the manner in which the Court has moved from C to D, i.e. the “reasons” for which it felt bail should be granted to the accused.
The grant of bail in a non-bailable offence is entirely within the discretion of the court. This discretion is guided by principle and law. There are certain well settled and well known principles dictating when bail should and should not be granted for such “non-bailable offences”.
The Delhi High Court faithfully reproduces the principles but nowhere proceeds to discuss how the principles are to be applied in the given case. Instead, it gets into a discussion on “nationalism” that would get a poor score as a high school essay and bizarrely, draws an analogy from medicine as to why bail is being granted.
Courts Vested With Task of Defending Citizens’ Rights
In proceeding to discuss “nationalism”, the court shows a poor grasp of the basics of constitutional law.
In giving “mothers and apple pie” type homilies about nationalism and soldiers, the court has completely lost sight of the fact that the greatest threats to freedom in India has always been internal, and the Constitution has vested the High Courts and the Supreme Court, not the Army, with the task of defending citizens from the rights of citizens from state encroachment.
The court seems blissfully unaware of the nature of human rights and their place in the Constitution, treating it instead as something that’s been gifted to India’s citizens by the Army.
When delivering such banal homilies about “rights and duties being two sides of the same coin”, the court seems blissfully unaware of the nature of human rights and their place in the Constitution, treating it instead as something that’s been gifted to India’s citizens by the Army. In any event, such a discussion is rarely germane to a case concerning the grant of bail, and it begs the question as to why the court felt compelled to make such ill-thought-out and legally incorrect observations.
The phrase “anti-national” isn’t actually used in Section 124-A or any part of the Indian Penal Code.
Shaky Interpretation of Sedition Law?
Much of this could be dismissed as mere judicial fluff if it weren’t for the fact that one of the conditions for granting bail is that Kanhaiya Kumar should give an undertaking that “he shall not actively or passively participate in any activity that may be termed as anti-national”. Never mind that the phrase “anti-national” isn’t actually used in Section 124-A or any part of the Indian Penal Code. It was only introduced into the Constitution through the notorious 42nd Amendment passed at the height of the Emergency and subsequently removed by the 43rd Amendment to the Constitution – an ominous coincidence that the court completely fails to note while imposing this condition.
With such a vague and ill-considered undertaking, the Court has only left the door open for further harassment of Kanhaiya Kumar by the police seeking to cancel his bail by arrogating to themselves the task of determining what is “anti-national activity”.
It was reported that the court asked the Delhi Police if they even knew what sedition meant in the context of the Indian Penal Code. Having read this order, one gets the sense that perhaps the court itself has a shaky grasp on what sedition is. As with its order in the National Herald case, the Delhi High Court has lost its way in adjudicating a highly sensitive issue in the glare of the public eye.
What should have been a straightforward exercise in applying well-settled law to the facts of the case has become (yet again) a basis for judicial grandstanding that has only confused matters further.
(The writer is a Senior Resident Fellow at the Vidhi Centre for Legal Policy. The views expressed here are purely personal)
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