In response to the bail order granting bail to JNU Student Union president Kanhaiya Kumar, Indira Jaising reminds us that there can be no anticipatory restraint on free speech

Dear Judges,

The time has come for us to remind ourselves what nationalism is, and what constitutes ‘anti-national’ activity. Surely, as judges, you all know that there is no such offence as an ‘anti-national’ act in any of the statute books in India.

No doubt our forces protect our borders, but think, why do we face external aggression on our borders in the first place? Why have we not succeeded after 68 years of independence in making peace with our neighbours who, until 1947, were part of one nation? A generation of us are still around, including myself, who belong to the other side of the border, and all that we want is peace and nothing but peace. What have you done to guarantee us this peace?

Defining freedom

We don’t want our soldiers coming home in coffins in the name of nationalism. We want peace and justice for all, including our neighbours.

So, notwithstanding the onerous, oppressive and unconstitutional undertaking demanded from Kanhaiya, it was all worthit to listen to that one speech and feel that all is still well with the nation, and we are still safe in the hands of the young. We have succeeded, after all, in passing on a legacy which was created, built, and forged during the non-violent freedom movement. We have succeeded in defending freedom zealously in court.

The task of the judiciary

But to come back to what is anti-national, let us look at the constitution once again.

Judges take an oath to bear true faith and allegiance to the constitution, and to protect the sovereignty and integrity of India. But look at Article 352, the power to declare an emergency, and it will give you the clue as to what threatens the integrity of the nation.  It is external aggression, and the remedy for that is with the executive, not the judiciary.

The job of the judiciary is not to allow the law to be drowned by the clash of arms, but to keep the flame of justice and liberty alive. The executive did its job, you do yours while granting bail. Leave the anti-national debate to the government of the day, leave the debate to embedded journalists. It is not without reason that Article 352 refers to external aggression;internal sovereignty belongs to us – We the People.

History has not forgiven the judges who wrote the ADM Jabalpur majority judgment in 1976 since it robbed the people of their liberty. Remember, majoritarian is an illusion. It was the same NDA (then known as Janata Party) government that undid the judgment and ensured that Article 21 can never ever be suspended. Bail is in the realm of Article 21 after all. To those of you who grant bail, and before a song from Bollywood becomes our national anthem, read the dissenting judgement of the late Justice H. R. Khanna. Then decide what is anti-national.

In living memory, those who were in prison during the emergency and are today ruling the nation. If they were not asked to comply with onerous conditions for liberty “actively or passively”, then why such a demand on Kanhaiya today? There can be no anticipatory restraint on free speech.

Truth and justice

Tell us, while delivering his speech yesterday on campus, was Kanhaiya national or anti-national? We the people of India want peace and justice. There is no justice without access to justice. There is no justice without human rights defenders being protected from attack, whether in the name of foreign funding, or in the name of nationalism, or by any other name.

While arguing a case in the Supreme Court recently, I had occasion to tell the judges, “Your tragedy is you enter a court from the back door, you don’t see what is written over your heads. I enter from the front door, the first thing I see every morning is Satyameva Jayate.”  

That one sentence would be sufficient to help you in interpreting the law which is given in your hands for safe custody. And what is more, the Supreme Court has something more than truth written above: Yato dharmas tato jaya.

The judges of the Supreme Court of India may figure out this one for yourselves.

Indira Jaising is a senior lawyer, a co-founder of Lawyers Collective, and the former Additional Solicitor General of India.

This article was first published on The Wire and it has been republished with permission of the author.