Delhi HC Kanhaiya Kumar bail order, disappointing FoE supporters: Anti-

nationalism is infection causing gangrene

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After a suspenseful countdown to delivery of order in the JNU students union leader,
Kanhaiya Kumars bail application, Delhi high court justice Pratibha Rani, gave the
key accused in the JNU sedition case conditional bail for six months with a surety of
Rs 10,000 in a 23 page order.

The order

Justice Rani released Kanhaiya Kumar on interim bail for six months, calling it a
conservative method of treatment for an "infection" which spread in a limb. Justice
Pratibha Rani of Delhi high court, in her 23-page judgment, releasing Kanhaiah
Kumar on an interim bail for six months, has disappointed free speech enthusiasts,
who were hoping her judgment, if it granted bail, would be more critical of the
foisting of sedition cases on persons without much evidence, after the high court had
slammed the cops hard earlier this week for relying on apparently fabricated video
evidence.

Although at the time of grant of bail, a judge is not expected to sift the evidence to
find out whether the accused is innocent or guilty, she would be entitled to know
whether the evidence cited by the prosecution is prima facie satisfactory.

Rani observed that Kumar, as president of the JNUSU, was expected to be responsible
and accountable for any anti-national event organized in the campus. According to
her, the anti-national attitude which could be gathered from the material relied upon
by the state cannot be a ground to keep him in jail.

Having said this, however, Rani added that raising anti-national slogans do have the
effect of threatening national integrity. The kind of slogans raised may have
demoralising effect on the family of those martyrs who returned home in a coffin
draped in the tricolor, she observed.

She then reminded Kumar that rights and duties are two sides of the same coin, and
Part IV under Article 51A of Constitution , fundamental duties have been specified.
Refusing to concede that the slogans raised by the students could be protected under
fundamental right to freedom of speech and expression, she called it a kind of
infection, from which students are suffering, which needs to be controlled/cured
before it becomes an epidemic.

Although her order granting interim bail is a relief to Kumar, it also carries a serious
warning to others, to construe it as a license of sorts. If the infection results in
infecting the limb to the extent that it becomes gangrene, amputation is the only
treatment, she warns.

As per her judgment, Kumar has to give an undertaking that he will not participate
actively or passively in any activity, which may be termed as anti-national. He has
also been asked to make all efforts within his power to control anti-national activities
in the campus.
Kumars surety should be either a member of the faculty or a person related to him in
a manner that he can exercise control on the petitioner not only with respect to
appearance before the court but also to ensure that "his thoughts and energy are
channelized in a constructive manner".

The conditional bail is likely to be debated, for what it says and doesnt say.

Background

On 23 February, when the case was first heard by the Delhi high court, Rahul Mehra,
the standing counsel of the Delhi Government, told the judge that he had been by-
passed in the matter and the ASGs have been asked to represent the State. He also said
that since the Commissioner of Police had stated that Kanhaiyahs bail application
would not be opposed, he should be asked to file a status report.
The Lt. Governor has, in the meantime, given approval for appointment of Shailendra
Babbar as government counsel in the case.

On 24 February, ASG Tushar Mehta represented the Delhi police, sought further
police custody of Kumar, in view of the surrender of two co-accused students, namely,
Umar Khalid and Anirban Bhattacharya.

Kapil Sibal, who appeared for Kumar, did not press for immediate hearing of his bail
application, on instructions. More significant, the judge had specifically requested all
concerned to maintain confidentiality about the remand proceedings, in order to avoid
any unpleasant incident as well as to ensure the safety of Kumar. According to reports
in the media, the bail, which is limited for the next six months, carries a lot of
restrictions on the freedom of Kumar during the period.

Another report said the Magistrate report to the Delhi Government found the evidence
against Kumar doctored and he did not make the seditious speeches, as alleged by the
police. According to another report, Tushar Mehta told the high court on 29 February
that the police had no video record of Kumar making anti-India slogans.

Conclusion:

Metaphors abound in the Delhi High Court judgement that gave bail to JNU students
union president Kanhaiya Kumar metaphors that seek to emphasise the value of
nationalism.

Justice Pratibha Rani begins her judgement granting bail to Kanhaiya Kumar by
quoting from the famous patriotic song Mere desh ki dharti.

This patriotic song from Upkaar by lyricist Indeevar symbolizes individual

characteristics representing by different colours and love for motherland. Spring
season is a time when nature becomes green and flower blooms in all colours. This
spring, why the colour of peace is eluding the prestigious Jawaharlal Nehru
University (JNU) situated in the heart of Delhi, needs to be answered by its students,
faculty members and those managing the affairs of this national university, she writes
in the judgement.
The judgment also has photographs of the 9 February JNU event for which Kanhaiya
Kumar was charged with sedition and criminal conspiracy by the Delhi Police. It even
has the poster of the event. But the poster does not have Kanhaiyas name as one of
the organizers.

Granting him conditional bail for six months, the court said it was still a matter under
investigation, not related to the limited matter of bail, whether Kumar organized the 9
February event and raised anti-national slogans.

Referring to Kumars well-know speech on 11 February, the judgement observes,

Whether the speech dated 11th February 2016 by the petitioner contains his original
thoughts and faith in the constitution and nationalist approach, or the speech was to
create a safety gear for himself is again something which cannot be examined by this
court at this stage.

The judgement considers the argument on freedom of speech, and quotes from the
Supreme Courts recent judgement striking down Section 66A of the IT Act. In that
judgement, the apex court had said that the reasonable restrictions [Article 19(2)] to
freedom of expression kick in only when the act of speech goes beyond discussion
and advocacy into incitement of action.

While granting him bail, the judgement expresses concern over the anti-national
slogans and reads, As President of Jawaharlal Nehru University Students Union, the
petitioner was expected to be responsible and accountable for any anti-national event
organised in the campus. Freedom of speech guaranteed to the citizens of this country
under the Constitution of India has enough room for every citizen to follow his own
ideology or political affiliation within the framework of our constitution. While
dealing with the bail application of the petitioner, it has to be kept in mind by all
concerned that they are enjoying this freedom only because our borders are guarded
by our armed and paramilitary forces. Our forces are protecting our frontiers in the
most difficult terrain in the world i.e. Siachen Glacier or Rann of Kutch.

The judgment sees the use of anti-national slogans in JNU as a bodily infection.
The thoughts reflected in the slogans raised by some of the students of JNU who
organized and participated in that programme cannot be claimed to be protected as
fundamental right to freedom of speech and expression. I consider this as a kind of
infection from which such students are suffering which needs to be controlled/cured
before it becomes an epidemic, the judgement says.

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, it adds.

Concluding the judgement, Justice Rani hoped that Kanhaiya Kumar had time in jail
to introspect on the events that took place in JNU on 9 February. Therefore, To
enable him to remain in the main stream, at present I am inclined to provide
conservative method of treatment, she said.