(Guest Post by Rahul Bajaj)
On Wednesday, after much anticipation, a single judge of the Delhi High Court delivered her verdict in the bail application filed by Kanhaiya Kumar, the President of the JNU Student Union, who was arrested under Sec. 124A and 34 of the IPC for his role in the activities that transpired on the JNU campus on 09.02.2016. The bail order begins with the invocation of the song ‘Mere Desh ki Dharti sona ugle’, extolling the virtues of the national flag, which sets the tone for the rest of the order and firmly fortifies the argument that the order appears more like a lecture on patriotism to erring students than a rigorous legal analysis of the relevant free speech and criminal law principles that ought to inform the court’s inquiry in this case. In order to constructively critique the judgment, it would be apposite to divide its holding into three parts.
Examination of evidence against the accused
The court, in keeping with well settled principles governing the grant of bail, notes in para 27: “At this stage, a detailed examination of the evidence is to be avoided while considering the question of bail, to ensure that there is no prejudging and no prejudice, a brief examination for satisfying about the existence or otherwise of a prima facie case is necessary.” Further, in para 28, it refers to a controlling Supreme Court precedent in support of the proposition that a court only has to consider 3 factors while analyzing such applications: the nature/severity of the accusation and supporting evidence; reasonable apprehension of tampering of the witness/ injury to the complainant; and prima facie satisfaction of the court in support of the charge. The court then embarks upon an analysis of the evidence put forth by the prosecution against the petitioner which principally consists of the slogans that were raised by some JNU students on 09.02.2016 and the photographs of the incident that were captured by the police. Significantly, the court notes in para 31:”…The limited controversy as on date is whether the petitioner was actively participating in the alleged anti-national activities on that day or he was present there only to intervene between two rival factions of the students. 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…” Further, in response to the petitioner’s contention that the speech that he delivered on 11.02.2016 is indicative of his allegiance to the Constitution, the court notes: “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…” Three inexorable conclusions flow from these observations: First, even though the accusations against the petitioner are grave, the supporting evidence does not demonstrate, in a cogent and compelling manner, that the petitioner was actively involved in the raising of ‘anti-national’ slogans; second, there is nothing on record to show that the petitioner is likely to obstruct the investigation or tamper with the evidence on being released; and, third, on the basis of the limited inquiry that the court has to conduct at this stage, the court is not prima facie satisfied about the guilt of the accused. However, as I shall soon discuss, the court goes on to make some rather objectionable remarks that do not flow from the observations quoted above and are completely untethered to the principles and precedents that it refers to.
Freedom of speech of the accused
In response to the petitioner’s argument that his conduct amounts to protected speech under Article 19(1)(a), the court quotes para 13 of Shreya Singhal which draws a distinction between mere advocacy/discussion of objectionable ideas and incitement to commit violence and clearly states: “Mere discussion or even advocacy of a particular cause howsoever unpopular is at the heart of Article 19(1)(a). It is only when such discussion or advocacy reaches the level of incitement that Article 19(2) kicks in.” However, instead of analyzing whether the slogans raised by the petitioner, assuming for the sake of argument that he was involved in the raising of the slogans, amounted to incitement and fell beyond the ambit of protected speech, the court notes in para 43: “The petitioner claims his right regarding freedom of speech and expression guaranteed in Part-III under Article 19(1)(a) of Constitution of India. He has also to be reminded that under Part-IV under Article 51A of Constitution of India fundamental duties of every citizen have been specified along with the fact that rights and duties are two sides of the same coin.” On an objective analysis of this line of reasoning, at least 3 glaring flaws come to light. First, I know of no precedent, and I venture to guess that there is none, in support of the proposition that Article 19(1)(a) is subject, not to reasonable restrictions under Article 19(2), but to fundamental duties under Article 51A which must constrain the exercise of this freedom. Second, the court summarily dismisses the petitioner’s 19(1)(a) argument in para 44 on the following ground: “Freedom of expression enjoyed by every citizen can be subjected to reasonable restrictions under Article 19(2) of our Constitution.” It is difficult to fathom how the court can adopt such a line of reasoning, if this offhand remark can be described as such, without engaging in a meaningful discussion about whether the conduct of the petitioner amounts to advocacy, discussion or incitement. Third, the Supreme Court unequivocally held in the case of Balwant Singh versus State of Punjab that casual slogans, objectionable though they may be, without any overt act do not constitute sedition and would, therefore, amount to protected speech. In light of this binding precedent, it is difficult to fathom how the court could have held that offensive slogans, not backed by any act of violence, would attract the mischief of Article 19(2). It may be legitimately argued that the slogans in this case were of a far more serious nature and therefore cannot be treated on the same footing as the slogans at issue in Balwant Singh, but any such argumentation is conspicuous by its absence in the court’s reasoning.
Comments on anti-national remarks
In light of the fact that the court was only called upon to adjudicate upon the bail application of the petitioner, it is surprising that the court decided to arrogate to itself the power to lecture the petitioner and other students, whose conduct as the court itself repeatedly notes is still under investigation, about the importance of maintaining a suitable national morale for the soldiers who guard the country. For instance, the court notes in para 41: “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.” While the judge is certainly entitled to personally condemn the raising of such abominable slogans, as all right-thinking Indians would, one wonders whether it is apposite for the judiciary to weigh into the anti-national debate in this manner.
Considering that former UPA home and finance minister P. Chidambaram has clearly said that it is possible for people to hold an honest opinion that Afzal Guru was wrongly convicted for the 2001 parliament attacks, it is difficult to understand how the court can state as an absolute proposition that those who question his hanging are suffering from an infection which needs to be cured before it becomes an epidemic (para 47). Curiously, while granting interim bail to the petitioner for a period of six months, the court asks him to give an undertaking to the effect that he will not participate in any anti-national activity and will do everything within his power to control activities deemed anti-national on the JNU campus (para 52). Implicit in such a direction is the belief that the petitioner was involved in anti-national activities or possessed the power to prevent the incident on 09.02.2016 from occurring. If this doesn’t amount to reversing the presumption of innocence, one wonders what does. Further, one cannot help but observe that the use of phrases such as ‘anti-national’ and ‘intellectual class’ by the court seems to be actuated by the sole object of playing to the gallery and is likely to further fuel the media-generated hype that surrounds this case.
In the final analysis, although the grant of interim bail to Kanhaiya Kumar is a welcome move, this decision is likely to chill free speech, judicially sanction the reversal of presumption of innocence in this case and make our democracy less, and not more, vibrant.
(Rahul Bajaj is a fourth-year law student at the University of Nagpur)