"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 an open letter to India’s Judges, former Additional Solicitor General of India Indira Jaising has reminded the Judges that there can be no anticipatory restraint on free speech. Through the letter, In the letter published in 'The Wire ' Ms. Jaising responds to the bail order granting bail to JNU Student Union President Kanhaiya Kumar, wherein the Judge has been censured for overstepping the bounds of law and adjudicating a highly sensitive issue in the glare of the public eye.
Allowing Mr. Kumar’s bail application, the Judge had expressed his views on nationalism, observing that the thoughts reflected in the slogans raised by the students “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. 48. 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 Judge had observed. She had then directed Mr. Kumar to give an undertaking that “he shall not actively or passively participate in any activity that may be termed as anti-national”.
Expressing concern over the content of this order, Ms. Jaising wrote, “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.”
She referred to the undertaking demanded from Mr. Kumar as “onerous, oppressive and unconstitutional”. However, her writing displayed a peculiar pride while mentioning the speech that Mr. Kumar gave within the JNU Campus soon after being released on bail. She wrote that listening to the speech made her 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,” she added.
Ms. Jaising reminded the judiciary of the judgment in the infamous ADM Jabalpur case in 1976, when four Supreme Court Judges struck a lethal blow to the principles so dearly enshrined by makers of our Constitution.
“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”.
“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,” she wrote.
Read the Full Letter Here