The Delhi High Court order granting bail in Kanhaiya Kumar’s writ petition is an exercise in judicial niggardliness. Far from being “a sentinel on the qui vie” in the defence of a citizen’s fundamental rights, the court seems to be imprisoned by a sense of majoritarian rhetoric. The order is only a recognition that the prosecution did not appear to have any material evidence against the accused that appears to have impelled the court to grant bail.

Grant of bail is subject to some badly crafted conditions, which are sufficiently vague to warrant a withdrawal of the concessions, as and when any application is made by the prosecution. The liberty of the citizen granted to Kumar effectively turns the Jawaharlal Nehru University campus into an open jail or a place for his rehabilitation, and turns his faculty into prison wardens, charged with ensuring the inmate’s good conduct.

Multiple assumptions

After narrating the history of the case and recording even the prosecution’s concession that there is currently no video evidence of Kanhaiya Kumar actually raising objectionable slogans, the court sets out in detail the slogans alleged to have been raised by some protestors. It also incorporates photographs of students and protesters holding posters that it deems anti-national. It then goes on to say:

Today I find myself standing on a crossroad. The FIR in question has been registered only on 11th February, 2016. Investigation is at the initial stage. The petitioner is the President of Jawaharlal Nehru University Students Union. His presence at the spot on 9th February, 2016 has been claimed on the basis of raw video footing of that day i.e. 9th February, 2016. The petitioner at present is in judicial custody. The question is, in view of the nature of serious allegations against him, the anti-national attitude which can be gathered from the material relied upon by the State should be a ground to keep him in Jail.

As 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. 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”

In these paragraphs, the court has made several assumptions. Firstly, that the protests were "anti-national", which is a judgment on politics and not on law. There is no crime in Indian law which is defined or punished as "anti-national".

Secondly, it puts on the elected president of the JNU students’ union the responsibility of regulating and preventing “anti-national” activity. It like making the president of the Patiala House Bar Association responsible for the conduct of lawyers on the court premises.

Thirdly, it draws a false binary between soldiers defending the country’s border and the fundamental rights of the citizenry so defended. It cannot be the court’s case that soldiers defend only citizens who shut up. As has been pointed out elsewhere, soldiers on the border and students on scholarship come from the same stock of impoverished peasantry that is the backbone of this country.

Breathtaking diatribe

The judgment then makes a stunning descent into anti-intellectualism:

The petitioner belongs to an intellectual class pursuing Ph.d. from International School of Studies, Jawaharlal Nehru University, which is considered as hub of intellectuals. He may have any political affiliation or ideology. He has every right to pursue that but it can be only within the framework of our Constitution. India is a living example of unity in diversity. Freedom of expression enjoyed by every citizen can be subjected to reasonable restrictions under Article 19(2) of our Constitution. The feelings or the protest reflected in the slogans needs introspection by the student community whose photographs are available on record holding posters carrying photographs of Afzal Guru and Maqbool Bhatt.

The faculty of JNU also has to play its role in guiding them 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 reason behind anti-national views in the mind of students who raised slogans on the death anniversary of Afzal Guru, who was convicted for attack on our Parliament, which led to this situation have 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 the JNU so that there is no recurrence of such incident

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. 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.

Coming from a “learned” profession, this breathtaking diatribe against intellectuals raises some disturbing questions. Does the law approve only of intellect which does not dissent? The paragraphs turn JNU into an open air prison, with the faculty playing prison wardens. While celebrating the lives of Afzal Guru and Maqbool Bhat may be reprehensible, it might be reasonable to ask whether a Godse Divas would invite the same judicial censure?

The judgment’s understanding of freedom of speech seems to rely more upon the power to restrict than on protecting the freedom to speak. All in all, the judgment proceeds on the belief that bail is a gift to be bestowed upon the worthy, and not a mechanism to protect the freedom of an accused pending his trial.

Undeserved liberty

The infection metaphor is allowed to develop into full gangrene in the latter part where it notes:

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. To enable him to remain in the main stream, at present I am inclined to provide conservative method of treatment. Taking into consideration the facts and circumstances, I am inclined to release the petitioner on interim bail for a period of six months.

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.

Effectively, Kanhaiya Kumar and his comrades of the students’ union are being told that their liberty is being ensured by a court that considers them to be undeserving of it. Kumar is being set at liberty only to ensure that his infected intellect can be cured by the supervision of his faculty, in environs whose safety has been secured by the sacrifice of soldiers. His continued liberty is made contingent upon good personal behaviour and by ensuring obedience among his compatriots.

The order has collectively punished and stigmatised one of India’s best universities. More importantly it has underlined for the rest of us, the fragility of our freedoms, when judges fail to protect them. Our defenders and expounders of the Constitution, as revealed by this order, can be pitiful men (and women), dressed in a little brief authority.