In our country, as a result of years of judicial precedent, the law in respect of grant or refusal of bail for non-bailable offences is sufficiently instructive, although the relief itself is (of course) discretionary. A court has to examine, among other things:
- The severity of the accusation/charge
- Whether witnesses or the complainant will be threatened, evidence tampered with
- Whether the court is of the view that a prima facie case has been made out in support of the charge (see for example this Supreme Court decision which explains the law in some detail)
And yet, Wednesday’s decision of the Delhi High Court granting bail to Kanhaiya Kumar while referring to these parameters, does not appear to engage with them in an intelligible manner.
Interim Bail
While coming to the conclusion that Kumar was entitled to interim bail for a period of six months on the basis of surety (preferably a faculty member of JNU or a relative who would have some ‘control’ over Kanhaiya) and a personal bond of Rs. 10, 000, the Court has gone on to caution today’s young people from the “infection” of anti- national behaviour before it turns into an epidemic.
The Court in its 23-page order describes the (very serious) allegations levelled against Kanhaiya – amongst others that of sedition (Section 124A – a law introduced as far back as in 1870 and amended in 1898), criminal conspiracy, rioting and unlawful assembly.
But the nature of these offences, including the punishment for conviction, is severe enough for the Court to not have gone into this issue. On the ability of the accused to tamper with evidence or witnesses, the order says nothing. One can, therefore, argue that the Court did not foresee the need for such apprehension.
Most crucially however, while the Court appears to dwell upon (in some detail) the events that unfolded on the evening of 9 February 2016, it does not come to any prima facie conclusion as to whether Kanhaiya was in fact engaged in any “anti-national” activity, other than the fact that he was present at the gathering, much like a number of other students.
Why then, was Kanhaiya not granted bail until circumstances changed (instead of interim bail for just 6 months)?
‘Infection’
What is more intriguing is that given that Kanhaiya was deemed appropriate to be granted bail, why did the order have to make observations (when referring to alleged anti-national slogans raised at JNU) such as,
I consider this as a kind of infection from which students are suffering which needs to be controlled/cured before it becomes an epidemic.
Or
[I]f the infection results in infecting the limb to the extent that it becomes gangrene, amputation is the only treatment.
The temptation to pass strictures or caution the young against the travails of irresponsible sloganeering is high, especially in a matter that is so highly publicized and so closely watched in all quarters. However, in my humble opinion, that’s a temptation the Court ought not to have given into because this was merely a bail hearing and more importantly the Court’s ultimate conclusion, when at crossroads, was to grant Kanhaiya bail.
Read: What the Judge Said While Granting Interim Bail to Kanhaiya Kumar
Some would argue that such observations were relevant and formed the basis of why the bail was interim and for a limited period of six months. But, it could be equally argued that these very observations could form the basis for denying bail in a future hearing (although strictly speaking they are nothing more than obiter).
All of this is in the background that there is still no clarity as to whether the taped footage was authentic or doctored and the matter is still being investigated.
Underlying Statements
All of the above was on the law. But even as an important decision that speaks of social commentary in India: what is the message that Courts in India, as the last bastion of protecting democracy, are giving today?
Whether this matter or that of the other students accused of similar sedition charges or the Hardik case is taken as an example, what is the underlying statement that these cases make?
There is literature from a number of international human rights organizations such as the ‘Human Rights Watch’ and ‘Amnesty International’ that has questioned the efficacy of deterrence through the death penalty even in the Afzal Guru case. Some even questioned the conviction since the evidence was largely circumstantial and there were gaping holes in the trial.
This is not true just of the Afzal Guru case. Questions have been raised over the grant of due process and/or non-appreciation of evidence in a number of cases in India.
If we are to treat our institutions of power as beyond error, the very requirement of appellate jurisdictions becomes redundant.
None of this is to say that any organization questions the Supreme Court’s right to pass judgment as the final arbiter. All these means of dissent were well within constitutional limits. And yet, there were some compelling arguments that did not agree with what may have been a popular government’s or the judiciary’s decision. But that is the very nature of dissent.
When archaic laws like sedition (which were born during the British Raj as a means to protect the colonial government against civil dissent) are used to silence lawful protest, there is a strain on dialogue in every sense.
If I were a student at JNU, (a university, as the Delhi High Court itself describes “academically and socially vibrant” and “a microcosm of the Indian nation”) with an opinion that would not find favour with the state machinery, after what happened to Kanhaiya and other students, I’d be afraid to speak of it freely.
And yet, courts and the government alike will say that this was not the result they sought with their enforcement actions. They only sought to silence what was truly anti-national, not lawful protest.
Here’s an example. Hypothetically, if you had a family member who had been convicted of a crime, that you knew they did not commit, and yet every state and court machinery perpetuated such conviction because of procedural and systemic shortcomings, your expression of dissent would be angry because you would feel frustrated and cheated by the system even though you reposed faith in it.
Are we so smug as to suggest that each and every police officer and babu in our system is beyond reproach? Would such dissent (although it does not agree with a court order) be called anti-national?
India, the Democratic Nation
India has always (unlike the US) attempted a balance between freedom of speech and public order. Violence and protests such as the Jat stir are obviously against the fabric of democratic negotiation. But art and poetry that protest against the death penalty (even if the death penalty was rendered to someone labeled a ‘terrorist’) within the confines of academic debate surely cannot be termed as dangerous or reprehensible.
There is a prevailing trail of thought that patriotism, borders and other man-made constructs are irrelevant in our global society where people choose where to live based on where they have better prospects.
If one has ever lived away from your home country for a few years, one tends to adopt the culture of that country to assimilate. Maybe, over the years, one would feel a stronger cultural connection with that country over one’s country of birth. And yet, seeing someone who is from your part of the world will draw warmth.
As the popular quote goes, ‘the law relating to sedition is for the protection of the government, not the country.’ If courts don’t rap governments on their knuckles, under the garb of preventing public disorder, every vocal opinion held by a group of people that makes the government uncomfortable will become an unlawful assembly and every protest that opposes the razing of forest land to build a highway, a criminal conspiracy.
Such actions delegitimise the public trust in the state and it is counter productive. No 22-year-olds are going to stop having points of views just because you tell them it’s an infection they need to be rid off. Even assuming such opinions are ‘wrong’, engaging with them through debate, research and defence instead of a clamp down is always the more effective approach. Else, moderate voices are lost in the shrill sloganeering of ‘intolerance’ and ‘aunty national’ even though all of these labels may not be entirely fair.
Anti-National vs Pro-Government
It appears though that our institutions have forgotten that the opposite of pro-government is not anti-national. One is then reminded of George Bush’s infamous quote, ‘if you’re not with us, you’re against us.’
My father was in the Indian army. I recognise the sacrifices our soldiers make, every day. Merely because some arguably questionable state actions are questioned such as custodial torture or fake police encounters, the work of our armed forces has not been undermined. It is confusing to mix the two.
Even assuming there were some rioting elements in JNU that fateful evening that fuelled pro-violence slogans, what would they do today? The state’s action would catalyze them to tell others sitting on the fence, look what your government did, it put you in prison for having a viewpoint. Maybe you should join our revolution instead.
And that argument is not devoid of logic.
There are those that distribute food to the poorest of poor every evening, those that relentlessly work towards primary education, those that distribute sanitary napkins among women in rural areas and yet, they don’t have the flag fluttering in their back yard. And then, there are others that invite film stars at their children’s weddings by spending public funds while their cars have the tricolour affixed.
I’ll leave it to our institutions of power to decide who is more patriotic. For now, Kanhaiya has six months, to ensure no one else in JNU catches that ‘infection’.
Watch: Want Freedom in India, Not From India: Kanhaiya Kumar’s JNU Return
Read: In Kanhaiya Kumar’s Bail Order, Judge Overstepped Bounds of Law
(Shalaka is a lawyer who works in a large law firm in Mumbai. She takes a keen interest in constitutional and policy issues. Views expressed are personal.)
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