Delhi HC gives Kanhaiya Kumar bail quoting Bollywood song and calling slogans an 'infection'

Jawaharlal Nehru University Student Union President Kanhaiya Kumar, booked in a sedition case, was granted bail by the Delhi High Court on Wednesday. A bench headed by Justice Pratibha Rani ordered Kumar to be released on interim bail for a period of six months with a personal bond of Rs 10,000 and a surety from a faculty member.

Kumar has been accused of organising a meeting on campus where allegedly seditious slogans were shouted during an event to mark the death of convicted terrorist Afzal Guru last month. Despite news channels hammering Kumar for being an anti-national, however, it has emerged over time that there is no documentary evidence showing him raising any of these allegedly seditious slogans.

Delhi Police nevertheless went on to the JNU campus on February 12 and arrested Kumar. But it was then unable to ensure his safety or even that of the magistrate overseeing the case, after marauding lawyers ran riot on the Patiala House Court Complex grounds on two separate occasions. Kumar's bail plea was then moved to the Delhi High Court because of the safety concerns.

The JNUSU president has now been granted bail, and is likely to be set free from Tihar jail on Thursday.

The order, however, covers a fair amount of ground beyond Kumar's immediate petition about his personal liberty, and covers the danger that the judge sees allegedly seditious slogans as posing.

Justice Rani begins the order quoting from a patriotic song, Mere Desh ki Dharti (The Soil of My Country), and insists that the question of why peace is eluding the students of JNU needs answering. The order then looks at the arguments, pointing out that the state does not contest the fact that there are no videos of Kumar actually raising any of the allegedly seditious slogans.

It nevertheless goes on to say that all concerned need to remember that they enjoy freedom only because "our forces are protecting our frontiers in the most difficult terrain in the world i.e. Siachen Glacier or Rann of Kutch". The order insists that the alleged slogans – of which there is no evidence of Kumar raising – threaten the national integrity.

The order also says that the alleged slogans cannot be considered as free speech, instead Justice Rani says that the bench considers it a form of "infection." The order adds that when an infection spreads, it can either be treated, but in some cases, "amputation is the only treatment."

Despite this statement, the judge says that Kumar may have had a chance to introspect during his time in custody, and so the bench is inclined to offer a conservative treatment. While granting him bail, though, the order does call on Kumar to make efforts to "control" anti-national activities on campus and insisted that the surety provided should be from a faculty member who can ensure his thoughts are channelized in a constructive manner.

Below are excerts from the order:

‘Rang hara Hari Singh Nalve se,
Rang laal hai Lal Bahadur se,
Rang bana basanti Bhagat Singh,
Rang aman ka veer Jawahar se.
Mere Desh ki Dharti sona ugle
Ugle here moti mere desh ki dharti’

This patriotic song from ‘Upkaar’ by Lyricist Indeevar symbolizes individual characteristics representing by different colours and love for motherland. Spring season is a time when nature becomes green and flower blooms in all colours. This spring why the colour of peace is eluding the prestigious Jawaharlal Nehru University (JNU) situated in the heart of Delhi needs to be answered by its students, faculty members and those managing the affairs of this national university."

...

"What was the role played by the petitioner on that day is subject matter of investigation and it is desirable at this stage to leave it to the investigating agency to unearth the truth. 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 but learned ASG for the State has referred to the statement of various witnesses recorded under Section 161 CrPC who have stated about the presence as well active participation of the petitioner in that incident.

The petitioner takes shelter under the speech made by him on 11th February, 2016 affirming his allegiance to the Constitution of India to defeat the forces indulged in disintegration of the country. Whether the speech dated 11th 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."
 

"As President of Jawaharlal Nehru University Students Union, the petitioner was expected to be responsible and accountable for any antinational event organised in the campus. Freedom of speech guaranteed to the citizens of this country under the Constitution of India has enough room for every citizen to follow his own ideology or political affiliation within the framework of our Constitution. 

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.

It is a case of raising anti-national slogans which do have the effect of threatening national integrity."

...

"Suffice it to note that such persons enjoy the freedom to raise such slogans in the comfort of University Campus but without realising that they are in this safe environment 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 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.

The kind of slogans raised may have demoralizing effect on the family of those martyrs who returned home in coffin draped in tricolor."
...

"The investigation in this case is at nascent stage. The thoughts reflected in the slogans raised by some of the students of JNU who organized and participated in that programme cannot be claimed to be protected as fundamental right to freedom of speech and expression. I consider this as a kind of infection from which such students are suffering which needs to be controlled/cured before it becomes an epidemic.

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."
...

"The time is ripe that while giving some concession to the petitioner on monetary aspect for purpose of furnishing the bond, he 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."