Wednesday, March 2, 2016

Bail in re JNU: A Pyrrhic Victory at Best

Today, a single judge of the Delhi High Court granted interim bail for 6 months to accused Kanhaiya Kumar in FIR No. 110/2016 under Sections 124-A/34 IPC (the investigation has expanded to offences under Sections 124-A/120-B/34/147/149 IPC). For those unaware (which means those who have been living under a rock for the past three weeks), Mr. Kumar -  a PhD student at the Jawaharlal Nehru University [JNU] and president of the Jawaharlal Nehru University Students' Union - was arrested after having been named in the FIR. The primary allegation against him was his involvement in the raising of anti-national slogans inside the JNU campus on 09.02.2016. As most of us were (hopefully) not living under rocks, I will not go into what apparently transpired on that date. The unquestionable facts were these: police stormed a varsity, arrested students for making speeches, and didn't do all that much to prevent Mr. Kumar getting assaulted while in police custody itself. 

What was the message sent? Was it like the Home Minister tweeted - no tolerance for those saying anti-national things? Would this mean that one's freedom of speech and express was going to be limited by the hurting of other's sentiments when those others go on a rampage to prove their hurt? All this made the bail proceedings of Mr. Kumar both sensational and highly important. The result, as the title suggests, is a pyrrhic victory if the glass is seen half full, but is an undeniable nadir for the judiciary if the glass is seen half empty (like most people do). Why do I say such damning things? Those of you who broke off reading this post to read the order first, or came here after having read the order, might not have that question. For others, bear with me as I explain. I have two principal objections: (i) a complete pre-assessment of the case that has effectively condemned the accused, and (ii) the emergence of a dangerous symbiotic relationship between a sensationalist judiciary with its sensationalist media. The Court also refused to adequately address the law on grant of bail itself, but lets leave that aside for now.

Article 19(1)(a) is little more than a House of Cards
The court puffs, and there goes the protection of Article 19(1)(a) tumbling down. After quoting Hindi Film lyrics deemed appropriate for the occasion - right at the end, the order states that observations here "shall not be considered as an expression on merits". It is standard practice to say so, as some engagement with the factual matrix is unavoidable when hearing a bail matter. But what happens here is difficult to swallow. The Court goes out of its way to confirm the entire set of legal propositions that the State wish to advance through the present case. It must be remembered that the question here is not only whether Mr. Kumar and others will be found guilty after trial, but whether there should be a trial in the first place. The extent of the rights safeguarded by Article 19(1)(a) was the issue here. That was squarely decided against the petitioners. The Court at paragraph 40 concluded that this "is a case of raising anti-national slogans which do have the effect of threatening national integrity". All hope that the accused had of having any arguments on charge were dashed in a line, regardless of the caveats issued. 

Paragraphs 39 and 41 show how the Court views the extent of the right under Article 19(1)(a). It exhorts, probably with a chest puffed with pride, that we enjoy freedoms without realising that we can only do so "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 of 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." Reading this, it seemed like I was re-watching Jack Nicholson deliver that famous "You Can't Handle the Truth" monologue from A Few Good Men. Mind you, Nicholson's character authorised the brutal killing of a soldier because he couldn't withstand those conditions and that would be ultimately fatal to the forces at the battlefield. 

Oh, also, a right to chant slogans is restricted by the "demoralising effect on the family of those martyrs' who returned home in coffin draped in tricolor." [Paragraph 42]. After telling everyone, from the Indian student body [Paragraph 44] to the JNU faculty [Paragraph 45] on how it should go back and think about the bad things that it did, the Court strikes the final blow in Paragraph 47: "the thoughts reflected in the slogans raised by some of the students of JNU who organised and participated in that programme cannot be claimed to be protected as fundamental rights to freedom of speech and expression." Yes, my thoughts themselves are unceremoniously thrown out in the rain from their place under the umbrella of Article 19(1)(a). The Court thus concludes that sedition is little more than a glorified defamation case against the State itself - you cannot say anything that might hurt sentiments. Is that what the purpose of having a fundamental right to freedom of speech and expression means? That a band of persons who claiming to be hurt (there, there) by my comments, can kick up enough of a fuss to take away my right to say that? Such an exercise of the legal provisions is definitely anti-minority and is bound to cause further oppression [For more on how such an interpretation of the law is undoubtedly horrendous, please read the excellent book by Mr. Gautam Bhatia titled Offend, Shock or Disturb.] 

Yet Another Confirmation of a Vain Judiciary
Paragraph 47, after taking away our freedom of thought, goes into an all out assault that I am still finding hard to understand. The order states that this anti-national thinking is "a kind of infection from which such students are suffering which needs to be controlled/cured before it becomes an epidemic." Naturally, the court follows this up with the old surgeon and gangrenous limb routine, rather farcically observing at Paragraph 48 that "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." Due to the possible introspection engaged in by Mr. Kumar, the Court deems "inclined to provide conservative method of treatment." [It really does say so].

Who is this being written for? Is it for the police or the court? Of course not, for the order itself makes clear that the observations contained here are of no value whatsoever. They obviously are not for the general moral guidance of Mr. Kumar and the advocates involved in the case before the court. This is for the judiciary's new best friend, which it has revealed to us of late through 3 AM hearings and repeated soundbites - the 24 hour news circus! It was funny, as I started typing this post a certain channel started a newsflash about the order stating that "Exclusive: XYZ has Copy of High Court Order", deceiving you to think that an order available off the internet was in fact secured after great effect by the reporters of that esteemed establishment. At that point I knew what will follow over next two days. News anchors will shout themselves hoarse repeating these lines (some more than others, of course), to condemn and persecute at will. Amazingly, the order justifies the news peddled by the TV channels that JNU is a den of anti-national activity (something that even the police did not say). It went ahead and imposed the strangest conditions on granting bail to Mr. Kumar - he is required to "make all efforts within his power to control anti-national activities in campus", and his surety is tasked with not only ensuring that the Accused does not abscond, but also "to ensure that his thoughts and energy are channelized in a constructive manner" [a judicial nod of approval to our pro-national fascination with Yoga, perhaps?].  

Is a Pyrrhic victory better than none at all? While on the one hand it grants bail to Mr. Kumar (in my view, deservedly so as there exist little basis to further detain him for conducting the investigation), on the other hand the Court imposes several conditions on his release. The release is only for a period of 6 months. It would only be possible if Mr. Kumar secures a faculty member from JNU willing to stand surety for him and undertaking to ensure that he [Kumar] channels his energies in a positive way. Mr. Kumar himself is tasked with the unenviable exercise of ensuring that no anti-national activity occurs on the JNU campus. Anti-national here, as we all know, is basically whatever a bunch of people decide to cry foul about sufficiently loudly. Some would also note that by tasking him with being good-cop for 6 months, he has been uncharitably denied the right to step down as President of the Students' Union. What happens if someone thinks that one or more of these conditions are not being satisfied? That Mr. Kumar hasn't penned enough speeches eulogising our martyrs? The bail can be revoked, of course. So what the order eventually amounts to, is to give judicial basis for the public flogging of Mr. Kumar that occurred without such sanction previously. Perhaps a Pyrrhic victory might not be that good after all. 


  1. What about the next date of hearing? If i have understood the order correctly, the bail is interim in nature and for a period of six months. Am i supposed to approach after the expiry of six months with a character certificate so that i am released on bail?

    It is a Pyrrhic victory as the order granting bail is unprecedented. Never in my practice i have come across an order which has 4 pages of multimedia supported with 4 paragraphs of a lecture.

  2. The bail conditions are truly perplexing. It would be interesting to see whether any modification application is moved subsequently, possibly along with an application seeking expunction of the prejudicial remarks.