Descending into the Abyss: The Denial of Bail in the KLE Students Case

Basit, Talib, and Amir are three students of the prestigious KLE college in Karnataka. They are all in their early 20s and have received scholarships to pursue their college education. They also happen to be Muslim, and hail from the erstwhile state of Jammu and Kashmir. These students made a short video in which it appears that they are singing a song and changing the lyrics to say "Pakistan Zindabad" at one place. They did not ask anyone to sing along by chanting this on stage, but rather, they made this video in the confines of their room. They did not ask anyone to come to the streets to condemn the country that they are citizens of, to protest against a government, against a law, or against anything. What they did was that they made a video, changed the lyrics of a song and sang it, then shared it on their social media account(s). 

They were arrested for allegedly engaging in seditious conduct. Yes, sedition — a crime that requires either saying or writing anything which brings the Government into hatred or contempt, or excites disaffection towards the Government and is punishable with imprisonment for life. They were also alleged to have promoted enmity between different groups of the community by this dastardly deed of making a video with a "Pro Pakistan" slogan in it. Not only were they arrested, but their conduct was deemed so hazardous that the very lawyers whose professional duty requires them to assist any person in need passed resolutions banning any legal aid from being extended to these twenty-year olds. 

It was only after intervention by the Karnataka High Court that these boys managed to get a lawyer. And, even then, the lawyers needed massive police protection to make their way to their clients, for it turned out that their video had created such a hostile situation that there seemed to be a threat to the lives of any person seemingly connected with the boys. Even so, the lawyers performed their duty and filed a bail application before the jurisdictional court. And by all accounts, it was an arguable case for bail: (i) their clients were young first-time offenders, (ii) the police already had seized the incriminating evidence which could not be deleted or tampered with, (iii) the boys were willing to subject themselves to any conditions and produce sureties ensuring their presence as and when required, and (iv) by all accounts, the allegedly criminal act of saying "Pakistan Zindabad" in a video could not satisfy the legal threshold prescribed for the serious crime of Sedition, where the law had consistently demanded nothing less than incitement to public disorder. 

What nobody could have accounted for are the manifest illegalities and complete abrogation of judicial function that describes the order through which the bail applications of Basit, Talib, and Amir have been dismissed by the jurisdictional court in Hubli / Hubballi. The order displays a near-total failure to consider the bail applications for what they were — applications seeking release pending investigation into the allegations — and, instead, is a classic demonstration of an overzealous court pre-judging the merits of a case where the bogey of national security is raised to condemn the accused. 

In a complete dereliction of duty and contrary to the legal position on bail most recently encapsulated by the Supreme Court in the Chidambaram cases, the Hubli court meekly accepts the shockingly bald and generic assertions made by police about the accused persons tampering with the evidence and fleeing from justice if released upon bail. The only basis to suggest that the accused will flee from justice if granted bail was the fact of their Kashmiri heritage, with the police stating that it will be "difficult" to get them to appear if they fled to the region. One can only imagine that this was due to the sheer geographical distance between Kashmir and Hubli, for the ferocity of policing in that region surely would ensure that the accused could not "flee" if they went to Kashmir. 

The court appears to be in such awe of the grave and serious allegations levelled against the accused by the police, that it completely fails to consider whether the conduct in question even meets the legal requirements of the alleged offences. Thus, while many people might think it is a bad to say anything "Pro Pakistan", that does not automatically make any such act seditious, nor does it automatically incite hatred towards India, or between any groups in the community. What is grave here are not the allegations, but how the court failed to conduct even this basic level of scrutiny while assessing the prosecution case, and thus failed to rise above the kind of assertion-based arguments that are the staple for television shouting-contests but not for courts of law.         

Rather than thorough engagement with the legal considerations for bail and a test of the police claims, what we get is a sermon from the court about the duties of young persons and the dangers of engaging in any speech that even remotely suggests affection towards the neighbour with whom the court (incorrectly) says India has severed bilateral activities. The court reminds us that the "safety and security of this Country gets priority over all", and is so worried about the anti-national activities and the threats to national security in the present climate that it openly advocates for using the criminal law to monitor such ideas so that they can never "hatch" or come out of their "shell". At this point, one can't help but be reminded of the similarities here with the Delhi High Court's bail order in Kanhaiya Kumar's case, where the court did grant bail but only after literally "singing" paeans to state interests. 

The court's surrender to the throes of national security is complete when it informs us that the above considerations demand that the court "must allow the investigation agency to do its job with any body's intervention" in the present case. What are courts supposed to do then? Perhaps deny all bail applications in cases where the offences alleged are those affecting national security and remand all accused persons to custody with a short lesson on having good ideas that will help "accelerating the economic growth of the country". Or, they could do their job, which is to decide a bail application for what it is worth, and leave the ultimate adjudication of guilt or innocence for later. 

Basit, Talib, and Amir, were all arrested and sent to jail for making a short video. They were denied a lawyer because an entire Bar Association prejudged their guilt and deemed them unworthy of even a shot at trial. Now, their guilt has been prejudged by a court, which supported such a total surrender to the interests of national security that it consigned personal liberty to the bin, making it seem like the country is at war today. Any person reasonably well-versed with the law would argue that there is a chance of this order being overturned by the High Court, and bail being granted. But that is hardly the point here. Today a court has eviscerated the presumption of innocence that these students were entitled to, and also extinguished for them the promise of personal liberty that is guaranteed by India's Constitution. Thus, instead of having a chance of giving their exams and living a normal life while allegations against them are proven in court, these boys will suffer the ignominy of prison and probably carry the label of anti-nationals for months or years, all because they made the mistake of singing a stupid song while they were young and the air was charged with emotion.

[The post was updated on 10.03.2020 to remove references about whether a request for transferring the case was made or not]