Dr. Kafeel Khan and Our Punitive Preventive Detention Law

On August 11, the Supreme Court had requested the Allahabad High Court to expeditiously decide the habeas corpus petition filed by Nuzhat Perween for her son, Dr. Kafeel Khan. The petition challenged orders for his preventive detention under the National Security Act of 1980 (NSA) that were passed on February 13, 2020. Initially filed before the Supreme Court in February itself, the petition was sent to the Allahabad High Court in March, where it was heard multiple times before, finally, a Two Judges’ Bench passed a judgment on 01.09.2020 in Nuzhat Perween v. State of UP and Anr., [Habeas Corpus WP No. 264 of 2020 (decided on 01.09.2020)] declaring the detention order illegal and directing Dr. Khan’s immediate release. 

Unlike the last time that a judicial authority directed his release on 10.02.2020, following which Dr. Khan was not released but instead led to the impugned detention order being passed, this time Dr. Khan has indeed stepped out of prison and as of now has not been arrested in any other proceedings.

Background to the Preventive Detention

Dr. Khan’s prevention detention under the NSA is only the most recent episode of the state machinery training its attention on him and depriving him of his personal liberty, only for a judicial authority to direct his release. 

According to the state, what prompted the order on 13.02.2020 was a public speech given by Dr. Khan in Aligarh to a group of students on 12.12.2019, an event more than two months old. It was stated that the speech incited feelings of communal disharmony and also lent itself to violent protests by groups of students on 13th and 15th December in Aligarh District. The proposal for preventive detention, made on the same date as the order, stated that “Since the fierce and communal speech given by him has had an adverse and unfavourable impact on the public order of the District, therefore it is very important to keep this person detained in jail to maintain the public order. (emphasis mine)”

Take a close look at the last line above — preventive detention was necessary to keep Dr. Khan in jail. Why was he in jail, you ask? Because following the speech of 12.12.2019, a case was registered at P.S. Civil Lines, Aligarh, in the early hours of 13.12.2019 alleging inter alia that the speech incites communal disharmony. Dr. Khan was not immediately arrested in this case, but was ultimately taken into custody from Mumbai on 29.01.2020. He filed for bail, a request which was naturally opposed by the state. Despite the opposition, however, bail was granted on 10.02.2020. Two observations in the bail order are important: first, the Court rebuffed the state claim about the accused repeating the offence by stating that this would be grounds to challenge his bail, and; second, the court placed a bail condition upon Dr. Khan to “ not repeat the crime in the future”.

What happened next is in keeping with the worst traditions of how governments run in our republic, witnessed from the days of A.K. Gopalan itself (no, not his Supreme Court case). The bail order was passed but not given effect to by the executive. Two days later, on 13.02.2020, the trial court passed another order directing jail authorities to release Dr. Khan and directed its delivery by Special Messenger. However, the state claimed this was only received at 8:20 PM in the evening, by which time the preventive detention order had been proposed by the Officer in Charge of PS Civil Lines, sponsored by the Deputy Inspector General of Police, and authorised by the District Magistrate, Aligarh.

Therefore, it would be a mistake to think that Dr. Khan’s preventive detention was specifically required because of the incident of December, 2019. Rather, the need was only perceived by the U.P. Government once a competent court had applied its mind to the allegations against Dr. Khan in the regular course of law, and found that there was no reason to prolong his pre-trial custody any further. 

The Allahabad High Court Verdict

Before proceeding to the order that came to be passed in the habeas corpus petition, it must be mentioned that it took close to six months for a decision to be made in the matter. Even if we exclude the time the petition was in the Supreme Court, it is still an inordinate delay for what is arguably the most crucial kind of case before courts — one directly concerning the liberty of a citizen. 

Having said that, the short judgment of 42 pages does not waste too much time in getting down to the matter. The petition challenged the order of 13.02.2020 on three broad prongs: (i) there was no material for ordering preventive detention and it was intended to subvert the judicial process; (ii) the detenue was not supplied with all material thus denied a right to file an effective representation against his detention, and; (iii) the concerned government had unduly delayed the consideration of his representation against detention. I will only focus on (i) and (ii), as the judgment is restricted to a consideration of only these grounds. On both these legal issues, the Allahabad High Court has made some important observations.

Supplying Material

Let’s look at (ii) first because this is a small point. The High Court noted that while Dr. Khan had been given a CD with the speech ascribed to him, he was not given any means to play this disc. Neither was he supplied with any transcript of this speech, which was the primary basis for his preventive detention. This was unconscionable, and the Court rightly held it so, finding that this conduct on part of the state government deprived the detenue of his constitutional right to make an effective representation against his detention. 

Preventive Detention and Subjective Satisfaction

The Allahabad High Court was asked to consider the contents of the speech given by Dr. Khan in December 2019 to decide whether a reasonable person could apprehend any disturbance to public order based on his exhortations. The Court’s approach in this regard is important and requires a brief excursus to explain the legal position on how challenges to preventive detention orders are to be treated by the judiciary.

The law on preventive detention is an executive-driven process: it is an extraordinary power that executive officials in India have to make sure that imminent threats to public disorder etc. can be addressed swiftly without going through the rigour of the regular criminal process. The primacy given to the executive requires that in any subsequent challenge to a detention order, judges cannot substitute their mind for the subjective satisfaction of the executive official who made the decision in the heat of the moment. The judge cannot place herself in the shoes of the police officer. 

At the same time, however, this doctrine of respecting the subjective satisfaction of executive officials is not a license for abdicating the judicial function entirely when considering a challenge to preventive detention. Courts must still apprise themselves of the materials presented before the detaining authority to decide if the decision to authorise preventive detention was arbitrary and unreasonable. There is no running away from the fact that the lines being drawn here are fuzzy, and while it moves some courts to be excessively deferential to the executive, it equally allows other courts to keenly consider the facts without overstepping the limits of the judicial function or abdicating it entirely. 

In Nuzhat Perween, the Allahabad High Court clearly took the latter approach: 

“We are in absolute agreement with learned Additional Advocate General that it is not open for the courts to substitute their opinion by interfering with “subjective satisfaction of the detaining authority”. However, it does not mean that the court cannot look into the material on which detention is based. The expression “subjective satisfaction” means the satisfaction of a reasonable man that can be arrived at on the basis of some material which satisfies a rational man. It does not refer to whim or caprice of the authority concerned. While assessing “subjective satisfaction of the detaining authority” the Court examining a petition seeking a writ of habeas corpus has to look into the record to examine whether the subjective satisfaction is acceptable to a reasonable wisdom and that satisfies rationality of normal thinking and analyzing process. … In view of above, we have looked into the speech delivered by the detenue. The closure of examining record as suggested would be nothing but a licence to allow the executives to act at their whims or caprice. This would be against the fundamentals of our constitutional values and provisions. (Emphasis Mine)”

In line with this approach, the High Court looked at materials forming the basis for the detention order in detail. The judgment quotes the entirety of Dr. Khan’s 23 minute-long speech made on December 12, to demonstrate how the police requests for preventive detention in this case had, in fact, not presented the authority with the complete picture. Instead, the police had patched up different parts of Dr. Khan's speech to present a different picture altogether from what appeared to be the speaker’s intention. It held, therefore, that based on this material it was impossible to conclude that Dr. Khan’s activities were such as to prejudice the maintenance of public order. 

Punitive Preventive Detention

The peculiar facts leading up to the detention order of 13.02.2020 have been extracted above, and it was argued that this demonstrates that the two months’ delay in passing the order, and its expeditious authorisation after Dr. Khan’s bail, all went to show that the preventive detention order was actuated by malice and not based on any genuine grounds. 

This is a more tedious issue than what might appear at first blush. It is because the Supreme Court has held, on countless occasions, that it is not illegal to pass a preventive detention order in cases where the person is already in custody and about to be released on bail. Most recently, this was confirmed by the Court in Dimple Happy Dhakad [AIR 2019 SC 3428] (Discussed on this Blog as well). Technically then, preventing Dr. Khan’s release on bail was a legally valid ground for the U.P. Government to take. 

This is really the twilight zone when it comes to preventive detention, where the preventive setup inextricably merges with the regular criminal process. The only justifiable premise for passing a preventive detention order in respect of a person who is about to be released on bail is if the authority can demonstrate that there is a continuing threat which did not dissipate once the regular criminal process has taken charge of the matter. This is not unimaginable — organised crime has many stories of rackets being run from prison. But it must be a very hard sell for the executive and it cannot be a means to pile-on incarceration upon persons deemed undesirable by the state. Not only would such delayed preventive detention orders turn the concept on its head — where is the prevention if the person was already in jail for months after the incident! — but it would also directly subvert the determination made by a competent court that there was no need for a person’s continued incarceration. At a macro-level, repeat occurrences of this phenomenon place an undeniable strain upon the relationship between the executive and judiciary, and give rise to an unconstitutional chimera of punitive preventive detention that hollows out the right to personal liberty from within. 

This is why courts must arguably be more vigilant while entertaining challenges to preventive detention orders in such cases where bail order is passed and, in some way, circumvented — as the Supreme Court has also emphasised on some occasions in the past. This is exactly the kind of approach on display in Nuzhat Perween, where the Allahabad High Court noted that:

“The exact nature of the contents of the lecture delivered by the detenue on 12.12.2019 at the Bab-e-Syed Gate of the AMU (as claimed by the state authorities), even if accepted to be correct, it cannot be overlooked that, that material could not be relevant for the purpose of satisfaction being drawn two months thereafter, inasmuch during that period of two months, undisputedly, the detenue neither visited the city of Aligarh nor he made any further or other speech or lecture connected thereto nor there is any material shown to us that the detenue was about to commit any act in furtherance thereto or was going to deliver any other speech or lecture connected thereto as may have prejudiced the public order.”

There was no fresh alleged illegal activity between December and February which prompted the order of 13.02.2020, even though Dr. Khan had been at liberty throughout that time. There was not even a proposal to pass an order for his preventive detention in that period. The first time when the idea came to the government was after the bail order was passed. For the Court, all this pointed to a conclusion that the gap of two months’ snapped whatever link existed between the allegedly offending conduct of Dr. Khan with a need to require his preventive detention. 

Our Slow-Moving Wheels of Justice 

The story of Dr. Khan and the manner in which the preventive detention machinery was clearly misused by the state government to keep a dissident behind bars is a tale as old as time itself. Small wonder why the writ of habeas corpus has such a celebrated position in societies. Indian courts have not had the most shining of records in terms of processing habeas petitions over the past few years and the delay that it took for Dr. Khan’s petition to be heard speaks to this serious systemic problem. But, ultimately, a court did apply its mind, and restore a person's liberty. 

The episode reminds me of a scene from the movie Shahid, where the young, imprisoned, Shahid Azmi is told by War Saab (played by KK Menon) that the wheels of justice turn slowly in India, but they do eventually turn.

Well, eventually, I guess they do.

What's in a Name? A Lot, Especially if that Name is "Anti-National"

Forgive the plain title as this writer is at his wits' end, exhausted, after a week-long wild goose chase. The object of my search? The meaning of "Anti National" in context of the law.

The immediate cause behind this exertion was set of the guidelines issued by the Delhi High Court's High Powered Committee on how jail authorities should exercise their discretion towards releasing inmates to manage the risks posed by Covid-19 [The most recent one is here]. After detailing what kinds of prisoner categories should be considered favourably for release, the Committee listed categories of undertrial prisoners — persons who are not convicted of crimes and theoretically still presumed innocent — which should not be considered for release. One such category, is

"Cases investigated by CBI/ED/NIA/Special Cell of Delhi Police, Crime Branch, SFIO, Terror related Cases, Riot cases, cases under Anti-National Activities and Unlawful Activities (Prevention) Act etc." [emphasis mine]

This left me perplexed as to what the Committee might have meant by "Anti-National" activity, since the guidelines themselves don't define the term. The "under" in the portion I extracted has got to be a typo, as there is no statute under which "anti-national activities" are proscribed. Even so, does that mean that one gathers the meaning of this phrase from its context, i.e. is anti-national activity a broad term that includes (i) riot cases, (ii) terror related cases, and (iii) cases under the UAPA? But then what about the innocuous "etc." at the end of that category? Also, considering that the purpose of the Committee is to give clear guidance on how to exercise discretion, does it help to use such undefined phrases which give no guidance and leave the jail authorities to their own devices?

Having found no satisfactory answers within the Guidelines, I decided to venture look elsewhere.

Statutes / Constitution

At one point in time the term "Anti-National" was part of the Indian Constitution itself: Article 31-D was added during the Emergency by the 42nd Amendment, to basically render laws for made for "prevention or prohibition of anti-national activities" exempt from judicial review under Articles 14, 19 or 31 of the Constitution. It had a long explanation on what the term meant:

... (b) 'anti-national activity', in relation to an individual or association, means any action taken by such individual or association — 

(i) which is intended, or which supports any claim, to bring about, on any ground whatsoever, the cession of a part of the territory of India or the secession of a part of the territory of India or which incites any individual or association to bring about such cession or secession;

(ii) which disclaims, questions, threatens, disrupts or is intended to threaten or disrupt the sovereignty and integrity of India or the security of the State or the unity of the nation;

(iii) which is intended, or which is part of a scheme which is intended, to overthrow by force the Government as by law established;

(iv) which is intended, or which is part of a scheme which is intended, to create internal disturbance or the disruption of public services;

(v) which is intended, or which is part of a scheme which is intended, to threaten or disrupt harmony between different religious, racial, language or regional groups or cases or communities; ... 

Never before or after this brief interlude has the Constitution, or any statute for that matter, seen such an extensive engagement with the phrase. That does not mean that legislatures have entirely abandoned using the term either. Below is a short, non-exhaustive, list of statutes (both state and central) where we can still find reference to "Anti-National":

1. Arms Act, 1959 — The original Statement of Objects and Reasons [SOR] for the 1959 legislation referred to "anti-social or anti-national elements" using weapons and bombs, and the SOR for the 1988 amendments to the Act also refer to challenges posed by "terrorist and anti national elements"; 
2. National Security Act, 1980 — The SOR of what is today's the primary central statute on preventive detention referred to the "current crisis" posed by "anti social and anti national elements including secessionist, communal, and pro-caste elements" which "pose a grave threat ... and sometimes even hold society to ransom.";
3. Goa, Daman and Diu School Education Act, 1984 — Section 12 states that employees are to be governed by a code of conduct, and Section 12(2)(b) prescribes that the "Code shall prescribe, inter alia that no employee shall propagate  anti-national, communal, caste, or sectarian outlook.";
4. Cable Television Networks (Regulation) Act, 1995 — The SOR states that subscribers and others are unaware of their rights and duties in respect of "protection of subscribers from anti-national broadcasts from sources inimical to our national interest";
5. Uttarakhand Police Act, 2007 — Section 2(i) defines "internal security" as meaning "preservation of sovereignty and integrity of the state from disruptive and anti-national forces";
6. Sikkim Police Act, 2008 — Section 2(g) defines "internal security" in language identical to the 2007 Uttarakhand Act; [Note: similar clauses can be found in other recent police acts as well]
7. U.P. Fighters of Democracy Act, 2016 — The Act creates a framework for paying honour money to those who stood up against the Emergency. Section 5 of this statute specifies conditions for cancelling the payment of honour money, and one condition in Section 5(i) is the "participation in any crime of moral turpitude and in any anti-national activity" (Oh, the irony);
8. M.P. Loktantra Senani Samman Adhiniyam 2018 — The Madhya Pradesh version of the same law, and Section 9(1)(a) provides for an identical condition as the Uttar Pradesh law; [Note: similar clauses can be found in other state laws passed under Article 348(3) of the Constitution]
9. U.P. Private Universities Act, 2019 — Section 3 of the statute lays down conditions for establishing a university, and Section 3(2)(r) stipulates that the university "to undertake neither to be involved nor to permit anyone to cause or promote anti national activities inside the campus or under the name of the university"  
10. Besides these categories, there is also subordinate legislation passed through notifications where engaging in "Anti-National" acts deprives persons of some benefits or allows for prohibiting activity. This includes: (i) Government procedures on giving advertisements to newspapers etc., (ii) Service Rules for public servants, (iii) CBFC guidelines on censorship, (iv) Cancelling allotments of land under Government schemes, and (iv) As basis to issue Look-Out Circulars against persons. 

Courts and "Anti-National" Conduct  

I also scanned cases spanning 1950 to 2020 from India's Supreme Court, the many High Courts, and some Central Tribunals, where the term was used. This exercise showed that courts have commonly used "Anti-National" as an adjective to describe a wide array of conduct, such as: 

1. Espionage / Spying;
2. Conduct prosecuted under anti-terror laws such as TADA / UAPA;
3. Making Secessionist / Communal Speeches;
4. Activity such as food adulteration, illicit drug trade, making / handling counterfeit currency, corruption, smuggling, etc. punishable under various laws or legal grounds for preventive detention. [Note: A vast majority of cases seemed to fall within this category]

Here, courts not only called such activity "Anti National", but often referred to it as "anti-social and anti-national" conduct. 

The other insight gained from analysing cases was seeing how executive authorities used the term "Anti National" while exercising their discretion. Thus, I came across government school contracts where the employee was barred from "anti national / anti government" activity. But most interesting in this regard was the context of preventive detention orders, which routinely carried the phrase. This was especially so in detentions ordered under the Jammu & Kashmir Public Safety Act, 1978. Curiously, I only found one case which pointed out that engaging in "Anti National" acts was not one of the possible grounds enlisted in the statute authorising preventive detention [Mohd. Saleem Wani v. State, 2010 J&K HC]. 

It was mildly disconcerting that from the large sample size that I played with — all cases between 1950 to 2020 — I found only four cases where courts had offered any semblance of discussion on what this vague idea of "Anti National" conduct might entail. Three of these are:

1. In K.V. Subbarao [AIR 1967 AP 202], the Andhra Pradesh High Court was considering the legality of a detention ordered under the Defence of India Rules, 1961, and the detention order stated that the activities of the Petitioner were "anti-national". Refuting the contention of the Petitioner that this was a vague, undefined phrase, that found no mention in the statute and rules and thus could not be the basis of a detention order, the Court held that "Anti-National Activity" had a wide scope and covered all kinds of activities for which detention could be ordered under the law, viz. acts prejudicial to the maintenance of public order, India's relations with foreign powers, maintenance of supplies, conduct of military operations, and the defence of India. 
2. In Gurkirpal Singh [(1990) 97 PLR 102], the Punjab High Court differentiated between political activity from "anti-national activity" by holding that only the latter could be basis to refuse appointment to a probationer [Here, it was alleged that the appellant was keeping contacts with extremist elements].  
3. In S. Thirumalaiappan [2011, Madras HC], the Madras High Court explained that the phrase "anti national activities" which came in Rule 40 of the Tamil Nadu Pension Rules, 1978 ["anti national activities such as espionage, sabotage, and the like"] as a valid basis for denying compassionate allowance, included a public servant found committing crimes such as cheating and forgery.

The fourth, and the most comprehensive discussion, comes in Priya Parameswaran Pillai [2015, Delhi]. Here, a Look-Out Circular had been opened against the Petitioner which barred her from leaving India. One of the purported reasons was her engagement in "Anti-National" activities, which according to the government was her intention of talking about matters of Indian state policy on before a committee of British parliamentarians, which had the "potentiality of degrading the image of India in the eyes of foreign nations, leading to a regression in the country's economic activities and endeavours...".

The basis for executive power was a clause 8(j) in the official memorandum, which allowed issuing a Look Out Circular "In exceptional cases, ... without complete parameters and/or case details against CI suspects, terrorists, anti-national elements etc. in larger national interest…." (emphasis mine). The Court acknowledged the inherent vagueness in the phrase "Anti-National":

Pertinently, the word anti-national does not find a place in most dictionaries; it is in effect a combination of two words. If one were to deconstruct the meaning of the word anti-national, one would perhaps have to look to the meaning of the word, “Nationalism”. The nearest equivalent to the word ‘Nationalism’ would be patriotism. Patriotism as a concept would be linked to nationhood. Nationhood has several attributes which are, inter alia, inextricably connected with symbols, such as: the National Flag; the National Anthem; the National Song; and perhaps, the common history, culture, tradition and heritage that people of an organized State share amongst themselves.

In respect of each of these attributes of nationhood, there may be disparate views amongst persons who form the nation. The diversity of views may relate to, not only, the static symbols, such as, the National Flag and National anthem, etc. but may also pertain to the tradition and heritage of the Nation and the manner in which they are to be taken forward. Contrarian views held by a section of people on these aspects cannot be used to describe such section or class of people as anti-national. Belligerence of views on nationalism can often lead to jingoism. There is a fine but distinct line dividing the two. Either way, views held, by any section or class of people, by itself, cannot be characterized as anti-national activities. [emphasis mine]

The Court acknowledged that this inherent vagueness had the potential to confer arbitrary discretion upon the executive which could label any activity as "anti-national" based on the subjective views of certain officers. Considering that the term was also notably absent from the enumerated list of valid grounds to restrict the freedom of movement under Article 19(2). Accordingly, to render it legal, the Court held that the meaning of anti-national must be gleaned from the rest of the clause, and thus must refer to activities such as terrorism, or counter-intelligence. 

Taking Out "Anti-National" and Restoring the Law's Legitimacy

The 42nd Amendment is considered to be the greatest frontal assault on the character of India's democracy and its Constitution. Article 31-D with its constitutional cloak of safety for statutes condemning the anti-national was an integral part of that dastardly amendment. While it may no longer be more than a footnote within the constitutional text itself, the review of statutes confirmed that the concept continues to capture the imagination of our legislatures.  

The list of statutes and subordinate legislation within which the notion of anti-national activity provided here should provoke alarm in any right-minded person to whom arbitrary executive power causes concern. What that indicative list shows is that an undefined category of "Anti-National Activity" is being used across various contexts such as criminal laws, labour laws, and social welfare laws, as a basis to confer discretionary powers upon executive officers. Exercising these powers entails arbitrarily labelling conduct with extremely pejorative connotations and tarnishing a person's reputation. Not to mention the arbitrary interference in the enjoyment of basic freedoms, and a potential to bring about life-changing consequences by stopping welfare benefits, terminating employment, or causing incarceration.

That courts have uncritically bandied about this phrase in decisions (with the honorary exception of one case) is even more alarming. It might be alright for executive authorities to use high-pitched phrases to make arguments, but it is not alright for courts to reduce a phrase with such obvious taint as an ordinary adjective to describe a garden-variety of conduct. Using vague ideas to justify conclusions means that the arbitrariness of executive officers is transplanted on to the courts. What this leads to is a situation where a Single Judge of the Delhi High Court recognises the vagueness of the "anti-national" in Priya Pillai and the potential for arbitrary discretion that it entailed. Yet, just a few months later in March 2016, a different Single Judge of the same Court passed orders in Kanhaiya Kumar's bail petition [Discussed on the blog], extensively used the same vague phrase throughout the order, and even made it a condition for granting Kumar bail that he take all steps to "control anti-national activities in the [JNU] campus". Words fail me.

A review of the decisions and statutes confirms that far from it being imperative to the functioning of our legal system, the category of "anti-national" is almost entirely unnecessary and frivolous. As identified by the Delhi High Court in Priya Pillai, it is nowhere mentioned in the enumerated grounds for restricting the basic freedoms, and can only be made sense of by being fit into one of those phrases. If that be so, what is the point of persisting with the phrase and inflicting persons with its horrible taint which they carry for years in our system of delayed justice? The value addition is extremely minimal. The damage done to the legitimacy of the law and the ideals of the Constitution, is incalculable.    

Which brings me back to the Delhi High Court's High Powered Committee. When the guideline already refused to extend temporary mercy to imprisoned persons who stand accused in riots cases, corruption cases, cases under anti-terror laws, drug cases, corruption cases, and money-laundering cases, what was left to be covered by way of this amorphous category of "Anti-National Activities"? Nothing. So why not bunk it in the next revision, and restore some bit of the law's legitimacy in the process.

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?].  

Conclusion

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.