By Shishir Tripathi
The conditional bail for JNU students' union president Kanhaiya Kumar may have been a minor victory for students demanding his release, but the content of the order of Justice Pratibha Rani delivers them a sobering message.
The bail comes with several conditions, directives to JNU faculty and some serious observations on the exercise of freedom of speech.
“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 right to freedom of speech and expression,” the order said and considered it “as a kind of infection from which such students are suffering which needs to be controlled/cured before it becomes an epidemic.”
The court further added: “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 the 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”.
“While dealing with the bail application of the petitioner, it has to be kept in mind by all concerned that they are enjoying this freedom only because our borders are guarded by our armed and paramilitary forces. Our forces are protecting our frontiers in the most difficult terrain in the world i.e. Siachen Glacier or Rann of Kutch,” the court observed.
While Tushar Mehta, additional solicitor general (ASG), opposed the bail plea of Kumar, Rahul Mehra, standing counsel for the government of NCT of Delhi “submitted that given the facts and circumstances of the case, the petitioner may be released on bail”.
Kanhaiya Kumar's bail plea
According to the judgment, Kanhaiya Kumar “has claimed that there was no incident of violence after the alleged incident of raising anti-national slogans. Rather, the JNU campus remained peaceful and no disturbance was reported from within the campus. The so-called video recording of the incident by some channels has been reported to be doctored by the press.”
In his speech delivered on 11 February, 2016 Kumar “projected himself to be a law- abiding citizen having full faith in the Constitution.” He contended that he was a “victim of conspiracy by certain vested elements who are fabricating evidence against him. There is no possibility of his being capable of tampering with the evidence.”
Kapil Sibal, appearing for Kumar, submitted that Kumar “has no role in that event. His name also does not appear on the poster of that event, contents of which were considered anti-national. The petitioner has not been seen raising anti-national slogans in any of the video footage.”
The defence counsel also submitted that the role of the Kumar is limited to the extent that he reached the spot in his capacity as president of JNUSU, on coming to know about the tension between the two groups. After the situation came under control, he left the spot.
Ground on which the bail was opposed
Tushar Mehta, additional solicitor general (ASG), referred to the statement of various witnesses to describe the role played by the petitioner in organising and participating in the event. Mehta contended that “merely because the petitioner is not a signatory on the application form for seeking permission for the programme, is not sufficient to infer that he has nothing to do with the event” and referred to the statement of various witnesses recorded to describe the role played by the petitioner in organising and participating in the event.
Mehta also stressed that Kumar “also talked to the concerned authorities showing his resentment about the cancellation of the permission and his active participation in the event, which led to a situation that the police had to be called and both the factions of the students raising slogans were separated.”
The ASG also took the plea that the “speech given by the petitioner on 11 February, 2016 was part of his strategy to create a defence and opposed the bail.
The court’s observations
“The petitioner has been remanded to police custody thrice and has also joined the investigation. He is no more required for investigation of this case.”
The court observed that while Kanhaiya accepted his presence at the event on 9 February, “the role played by the petitioner on that day is the subject matter of investigation and it is desirable at this stage to leave it to the investigating agency to unearth the truth”. It added, “It is not disputed by the State at this stage that in the footage of video recording of the incident, the petitioner has not been seen raising anti-national slogans.”
On the ASG’s claim that the 11 February speech was part of his strategy to create a defence, the court observed that “Whether the speech dated 11 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.”
Court’s observation on ‘Sedition.’
While describing what sedition means and what sort of punishment it attract the court observed that it “is again subject to outcome of investigation that will determine the category in which the accusations against the petitioner would fall.”
On the responsibility of Kumar
“As the president of Jawaharlal Nehru University Students' Union, the petitioner was expected to be responsible and accountable for any anti-national event organised in the campus,” the court observed.
The binary: Freedom of speech we enjoy is because of the soldiers
“While dealing with the bail application of the petitioner, it has to be kept in mind by all concerned that they are enjoying this freedom only because our borders are guarded by our armed and paramilitary forces. Our forces are protecting our frontiers in the most difficult terrains in the world i.e. Siachen Glacier or Rann of Kutch,” the court observed. It added, “Suffice it to note that such persons enjoy the freedom to raise such slogans in the comfort of the university campus, without realising that they are in this safe environment because our forces are there at the battlefield situated at the highest altitude of the world where even the oxygen is so scarce that those who shout anti-national slogans holding posters of Afzal Guru and Maqbool Bhat close to their chest honouring their martyrdom, may not be even able to withstand those conditions for even an hour.”
“The kind of slogans raised may have demoralising effect on the family of those martyrs who returned home in a coffin draped in the tricolor," the court said.
The court told the faculty of JNU to play its role in guiding students “to the right path so that they can contribute to the growth of the nation and to achieve the object and vision for which Jawaharlal Nehru University was established”.
The court stated that, “The reason behind the anti-national views in the minds of students who raised slogans on the death anniversary of Afzal Guru, who was convicted for the attack on our Parliament... has not only to be found by them, but remedial steps are also required to be taken in this regard by those managing the affairs of JNU, so that there is no recurrence of such incident.”
While considering Kumar’s family background, some “concession to the petitioner on the monetary aspect for the purpose of furnishing the bond” was given by the court, however, the same court also held that Kumar “can be required to furnish an undertaking to the effect that he will not participate actively or passively in any activity which may be termed as anti-national”.
“Apart from that, as president of JNU Students' Union, he will make all efforts within his power to control anti-national activities in the campus. His surety should also be either a member of the faculty or a person related to the petitioner in a manner that he can exercise control on the petitioner not only with respect to appearance before the court, but also to ensure that his thoughts and energy are channelized in a constructive manner,” the order read.