Rajeev Dhavan: Delhi HC must explain Kanhaiya bail order
NB: Did the hon'ble judge declare Kanhaiya guilty of 'anti-nationalism' before granting him bail? - DS
Kanhaiya Kumar’s bail
order is stunning. A patriotic judge’s patriotic lament. Lyricist Indeevar
opens the first page of Justice Pratibha Rani’s judgment on Kanhaiya’s bail
order. Imagine a chorus in court praising Hari Singh Nalwa, Lal Bahadur (Congress), Bhagat Singh
(martyr), Jawahar (Congress), and the great nation swallowing up gold, diamonds
and pearls. Imagine, too, shouts of encore to repeat — as the song’s tune
reverberates in your mind.
What you don’t hear is
Justice Krishna Iyer’s judicially consecrated slogan “Bail not jail”. Imagine
the slogan “Bail not jail” being chanted, with encores galore. If permissible, would
the latter have been more appropriate? The case for bail should have been simple,
based on the principles of prima facie case, seriousness of crime, prevention
of the accused from absconding, non-tampering of evidence, and the requirement
of cooperation with the investigation. Perhaps something could have been said
about the failure of the police to protect Kanhaiya, and the intimidation of
sloganeering goonda lawyers who beat him up, attacked journalists, and did not
even spare a committee sent by the Supreme Court.
Bail granted,
conditions imposed. Protection not ordered despite threats. Kapil Sibal’s argument
denied any slogan-raising by Kanhaiya. Additional Solicitor General Tushar
Mehta, appearing for the “state”, (which state? Perhaps the State of the
Nation), elaborated on the entire JNU incident, including on the posters, slogans
and photographs to establish atmosphere. He even said Kanhaiya’s speech on
February 11 “was part of his strategy to create a defence”. A view echoed by
Justice Rani even though it was something that could not be examined at that
stage.
On prima facie case,
it remains a mystery as to why the learned judge cited the Gujarat High Court’s
decision in Hardik Patel (2016) rather than the Supreme Court’s celebrated
judgment in Kedar Nath (1962). The reference to Justice Rohinton Nariman’s view
in Shreya Singhal (2015) on the “level of incitement” when restriction on
free speech “kicks in” should have been a reminder for caution.
And so, was there a
prima facie case? We will not exactly know because the next paragraph in the
Kanhaiya bail case refers to the “vision and object of Jawaharlal Nehru
University”, quoting lavishly from its website. This was to suggest that
Kanhaiya betrayed his alma mater and, as emphasised later, “Our forces…
protecting our frontiers in the most difficult terrain in the world, that is,
Siachen Glacier or Rann of Kutch.”
The judge’s geography
may be confused. The point made by the judge was that JNU protesters, too, must
introspect on their slogans and displaying of photos of Afzal Guru and
Maqbool Bhatt. Indeed, the judge
prescribes that JNU must take remedial steps to investigate and avoid
recurrence. The general prescription suggested by the judge is “Whenever
some infection is spread in a limb… [give] antibiotics orally and if that does
not work… it may require surgical intervention also. [and] if the
infection results in… gangrene, amputation is the only treatment”.
To whom is this advice
given? To JNU? Or the state to use antibiotics and amputation to avoid the
spread of this gangrene? Where? In JNU or in India — perhaps every nook and
cranny of the great nation? This is in addition to her plea for introspection
by all, especially the “faculty of JNU… to play its role in guiding them to the
right path” for India and the university.
I guess in one sense,
JNU and its staff were also on trial for failing in their national duty, as
indeed Kanhaiya as president of the students’ union. The actual discussion
on bail is sparse as the learned judge found herself “standing on a cross
road”, posing the question: “in view of the nature of serious allegations
against him, the anti-national attitude [emphasis added] which can be gathered
from the material relied upon by the state should be a ground to keep him in
jail”.
Coming back to the
law, the learned judge is right in saying that it was for the “investigating
agency to unearth the truth” and that his later speech “cannot be examined by
this court at this stage”. Then why this judicial exhortation to cure the
infection which such students are suffering?
The criminal case
against Kanhaiya is yet to be examined. But clearly he was morally culpable as
an erring JNU student, as the president of its students’ union and as one
possibly infected and who needs antibiotics and, who knows, amputation. Not literally of
course. His bail takes into account the monetary aspect that his mother is an
anganwadi worker who earns Rs 3,000, and prescribes a bail bond of Rs 10,000
and a surety preferably from the teaching faculty of JNU. But morally, Kanhaiya
is pronounced as being on the wrong side.
One of the considerations
for his bail was that during his judicial custody, “he might have introspected
about the events that had taken place… [to] enable him to remain in the
mainstream”. Kanhaiya is told that as a condition for bail, he will not
participate “actively or passively in any activity which may be termed as
anti-national”, and as president of the JNU students’ union, he was to “make
all efforts within his power to control anti-national activities in the
campus”. His surety must also “exercise control… to ensure that his thoughts
and energy are channelised in a constructive manner.”
It seems to me that
his surety, as indeed Kanhaiya himself, must wear a hypothetical intellectual
dog collar of the mind. Justice Pratibha Rani
has more to explain than Kanhaiya.
Also see:
The Broken Middle - my essay on the 30th anniversary of 1984
The Assassination of Mahatma Gandhi: Inquiry Commission Report (1969)
The Abolition of truth
The Assassination of Mahatma Gandhi: Inquiry Commission Report (1969)
The Abolition of truth
