The Kanhaiya Kumar Bail Order and its Discontents

(Guest Post by Rahul Bajaj)
On
Wednesday, after much anticipation, a single judge of the Delhi High Court delivered her verdict in the
bail application filed by Kanhaiya Kumar, the President of the JNU Student
Union, who was arrested under Sec. 124A and 34 of the IPC for his role in the
activities that transpired on the JNU campus on 09.02.2016. The bail order
begins with the invocation of the song ‘Mere Desh ki Dharti sona ugle’,
extolling the virtues of the national flag, which sets the tone for the rest of
the order and firmly fortifies the argument that the order appears more like a
lecture on patriotism to erring students than a rigorous legal analysis of the
relevant free speech and criminal law principles that ought to inform the
court’s inquiry in this case. In order to constructively critique the judgment,
it would be apposite to divide its holding into three parts.
Examination of evidence against the accused

The
court, in keeping with well settled principles governing the grant of bail,
notes in para 27: “At this stage, a detailed
examination of the evidence is to be avoided while considering the question of
bail, to ensure that there is no prejudging and no prejudice, a brief
examination for satisfying about the existence or otherwise of a prima facie
case is necessary.” Further, in para 28, it refers to a controlling Supreme
Court
precedent in support of the proposition that a
court only has to consider 3 factors while analyzing such applications: the
nature/severity of the accusation and supporting evidence; reasonable
apprehension of tampering of the witness/ injury to the complainant; and prima
facie satisfaction of the court in support of the charge. The court then
embarks upon an analysis of the evidence put forth by the prosecution against
the petitioner which principally consists of the slogans that were raised by
some JNU students on 09.02.2016 and the photographs of the incident that were
captured by the police. Significantly, the court notes in para 31:”…The limited controversy as on date is whether the petitioner was
actively participating in the alleged anti-national activities on that day or
he was present there only to intervene between two rival factions of the
students. What was the role played by the petitioner on that day is subject
matter of investigation and it is desirable at this stage to leave it to the
investigating agency to unearth the truth…” Further, in response to the
petitioner’s contention that the speech that he delivered on 11.02.2016 is
indicative of his allegiance to the Constitution, the court notes: “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…” Three inexorable conclusions flow from
these observations: First, even though the accusations against the petitioner
are grave, the supporting evidence does not demonstrate, in a cogent and
compelling manner, that the petitioner was actively involved in the raising of
‘anti-national’ slogans; second, there is nothing on record to show that the
petitioner is likely to obstruct the investigation or tamper with the evidence
on being released; and, third, on the basis of the limited inquiry that the
court has to conduct at this stage, the court is not prima facie satisfied
about the guilt of the accused. However, as I shall soon discuss, the court
goes on to make some rather objectionable remarks that do not flow from the
observations quoted above and are completely untethered to the principles and
precedents that it refers to.
Freedom of speech of the accused

In
response to the petitioner’s argument that his conduct amounts to protected
speech under Article 19(1)(a), the court quotes para 13 of Shreya Singhal which draws a distinction
between mere advocacy/discussion of objectionable ideas and incitement to
commit violence and clearly states: “Mere discussion or even advocacy of a particular
cause howsoever unpopular is at the heart of Article 19(1)(a). It is only when
such discussion or advocacy reaches the level of incitement that Article 19(2)
kicks in.” However, instead of analyzing whether the slogans raised by the
petitioner, assuming for the sake of argument that he was involved in the
raising of the slogans, amounted to incitement and fell beyond the ambit of
protected speech, the court notes in para 43: “The petitioner claims his right
regarding freedom of speech and expression guaranteed in Part-III under Article
19(1)(a) of Constitution of India. He has also to be reminded that under
Part-IV under Article 51A of Constitution of India fundamental duties of every
citizen have been specified along with the fact that rights and duties are two
sides of the same coin.” On an objective analysis of this line of reasoning, at
least 3 glaring flaws come to light. First, I know of no precedent, and I
venture to guess that there is none, in support of the proposition that Article
19(1)(a) is subject, not to reasonable restrictions under Article 19(2), but to
fundamental duties under Article 51A which must constrain the exercise of this
freedom. Second, the court summarily dismisses the petitioner’s 19(1)(a)
argument in para 44 on the following ground: “Freedom of expression enjoyed by
every citizen can be subjected to reasonable restrictions under Article 19(2)
of our Constitution.” It is difficult to fathom how the court can adopt such a
line of reasoning, if this offhand remark can be described as such, without
engaging in a meaningful discussion about whether the conduct of the petitioner
amounts to advocacy, discussion or incitement. Third, the Supreme Court
unequivocally held in the case of Balwant Singh versus State of Punjab that casual slogans, objectionable
though they may be, without any overt act do not constitute sedition and would,
therefore, amount to protected speech. In light of this binding precedent, it
is difficult to fathom how the court could have held that offensive slogans,
not backed by any act of violence, would attract the mischief of Article 19(2).
It may be legitimately argued that the slogans in this case were of a far more
serious nature and therefore cannot be treated on the same footing as the
slogans at issue in Balwant Singh, but any such argumentation is conspicuous by
its absence in the court’s reasoning.
Comments on anti-national
remarks

In light of the fact that the court was only called
upon to adjudicate upon the bail application of the petitioner, it is
surprising that the court decided to arrogate to itself the power to lecture
the petitioner and other students, whose conduct as the court itself repeatedly
notes is still under investigation, about the importance of maintaining a
suitable national morale for the soldiers who guard the country. For instance,
the court notes in para 41: “such persons
enjoy the freedom to raise such slogans in the comfort of University Campus but
without realising that they are in this safe environment because our forces are
there at the battle field situated at the highest altitude of the world where
even the oxygen is so scarce that those who are shouting anti-national slogans
holding posters of Afzal Guru and Maqbool Bhatt close to their chest honoring
their martyrdom, may not be even able to withstand those conditions for an hour
even.” While the judge is certainly entitled to personally condemn the raising
of such abominable slogans, as all right-thinking Indians would, one wonders
whether it is apposite for the judiciary to weigh into the anti-national debate
in this manner.
Considering that former UPA home and finance minister P.
Chidambaram has  clearly said that it is possible for people to hold an honest opinion that
Afzal Guru was wrongly convicted for the 2001 parliament attacks, it is
difficult to understand how the court can state as an absolute proposition that
those who question his hanging are suffering from an infection which needs to
be cured before it becomes an epidemic (para 47). Curiously, while granting
interim bail to the petitioner for a period of six months, the court asks him
to give an undertaking to the effect that he will not participate in any
anti-national activity and will do everything within his power to control
activities deemed anti-national on the JNU campus (para 52). Implicit in such a
direction is the belief that the petitioner was involved in anti-national
activities or possessed the power to prevent the incident on 09.02.2016 from
occurring. If this doesn’t amount to reversing the presumption of innocence,
one wonders what does. Further, one cannot help but observe that the use of
phrases such as ‘anti-national’ and ‘intellectual class’ by the court seems to
be actuated by the sole object of playing to the gallery and is likely to
further fuel the media-generated hype that surrounds this case.
In the final analysis, although the grant of interim bail to
Kanhaiya Kumar is a welcome move, this decision is likely to chill free speech,
judicially sanction the reversal of presumption of innocence in this case and
make our democracy less, and not more, vibrant.
(Rahul Bajaj is a fourth-year law student at the University of Nagpur)
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