Yesterday, the Delhi High Court granted interim bail of six months to JNU Students Union President Kanhaiya Kumar. Up until the bail order yesterday evening, Kanhaiya was in judicial custody for his alleged role in sloganeering at the JNU campus on the anniversary of Afzal Guru’s death on February 9. While the decision to grant bail comes as a relief to free speech advocates, the contents of the order is cause for concern.

In a 23 page order, Justice Pratibha Rani laced principles of legal reasoning with unnecessary obiter that may very well have set the framework of the merits before the Magistrate. After a short and sufficient discussion of the principles of bail, Justice Rani goes on to deliberate the question of granting bail in terms that have become resonant in the polarized primetime news channel debates in India. The order routinely uses words such as “anti-national”, “intellectual”, and compares this case to the Army’s struggles in extreme weather conditions. At one point, Justice Rani even draws an analogy between “anti-national slogans” and “infections” and in extreme cases “gangrene”. She calls for its control/cure through remedial efforts, “surgical intervention”, or even through “amputation”. One cannot help but be reminded of Anupam Kher’s similar controversial remarks on “pest control”.

It is unfortunate that her order contains such judicial surplusage. Any bail order, as Justice Rani herself remarks, must be “to ensure that there is no prejudging and no prejudice, a brief examination [of the evidence] for satisfying about the existence or otherwise of a prima facie case is necessary.” That being the object, as Justice Rani rightly cites the Supreme Court in Kalyan Chandra Sarkar, “there is a need to indicate in such orders reasons for prima facie concluding why bail was being granted particularly where the accused is charged of having committed a serious offence. Any order devoid of such reasons would suffer from non-application of mind.” Thus, from the principles enunciated in this bail order itself, it appears that Justice Rani’s mandate was to

1. Indicate the existence of a prima facie case through a brief examination of the evidence and;
2. Provide prima facie reasoning for granting bail.

While discharging its duty to note the existence of a prima facie case, the Court may have gone a step too far and violated its own principle: “to ensure that there is no prejudging and no prejudice”. After demanding the need for “introspection by the student community”, the Court states “… 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.”

Thereafter, in no uncertain terms, the Court remarks that “[t]he 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.” The effect of this statement may have done irreversible damage to the trial of Kanhaiya. Remember, the magistrate needs to answer both whether Kanhaiya was involved in the sloganeering activities and whether these activities constitute sedition under sec. 123A of the IPC. Admittedly, the Court clarifies near the end that its observations are not “an expression on merits”. However, the visceral effects of the order on the Magistrate cannot be discounted.

On the next requirement for prima facie reasoning for granting bail, the order appears to have devoted little analysis. It states

During the period spent by the petitioner in judicial custody, he might have introspected about the events that had taken place. 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.

While orders granting or denying bail decisions are inherently discretionary, the present order uses only speculative reasoning to satisfy a “prima facie conclusion” for granting bail. Further analysis was warranted.

Justice Rani’s order reads as an essay on paternalism dressed in banal rhetoric. The order expressly connects considerations of granting bail with the toils of the army. It reads

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.

This reasoning appears very whimsical. Considerations in any bail matter range around the gravity of the alleged offence, offender’s history, apprehensions of witness tampering, offender escaping jurisdiction etc. In essence, these considerations have some correlation to the matter at hand. The coordinates of the army on a map do not and cannot be a factor to be considered generally.[1]

At another point, as if to justify this fanciful connection, the Court draws on this stronger. It states

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 consequence of this order is that Kanhaiya has been granted interim bail for six months. Yet, at the same time, he may have to begin his trial before the Magistrate in the backfoot. Apart from fighting the charge that he was not involved in the sloganeering in any way, the burden will effectively shift on him to prove why the slogans do not constitute “anti-national activity”, which is anyway not recognized under sec. 123A.

On a quick aside, while dealing with questions of nationalism and “anti-national attitudes” from a judicial sense, there is much we can learn from the US Supreme Court in Barnette. This case sprung up in the midst of World War II, where hysteria and hyper-nationalism were ubiquitous among all sparring nations. When the West Virginia Education Board made flag salutes compulsory, the US Supreme Court struck down the obligation, articulating one of its most passionate statements on the meaning of liberty and dissent. It held

[1] Of course specific instances when the army is instrumentally involved in the matter is another question.