Jail or bail; bail or jail; jail if not bail; bail if not jail - This was the swinging proposition of heated debates since 12th February when Kainhaiya Kumar was arrested by Delhi Police. Under Hindu Mythology, Lord Krishna (another name for whom is Kanhaiya) was born inside jail. His mother was jailed by the maternal evil uncle Kansa as he was apprehensive of death by hands of Krishna. The then Kanhaiya made a narrow escape from the prison, killed Kansa, played a vital role in Hindu epic Mahabharata and dictated Bhagwat Gita to Arjuna during the war. The present day's Kanhaiya has a similar story. Kanhaiya was jailed by the state for going against the state and bailing him out of it was no less than crossing the overflowing river in rain with irrelevant observations made by the High Court judge after the Supreme Court rightly refused to bail him out. Whether he will kill the Kansa or what role he will play is yet to be seen. I will not repeat the debate on whether it was sedition or whether Art 19(1)(a) covers it and concentrate only on remarks made by the High Court judge.
It is settled law that jail is an exception and bail is the rule. It is also trite law that in a bail application, the court must rule, not ruminate and discriminate. Firstly and fore mostly, I have serious objection to reserving the order on 29th February for judgment on 2nd March but instead of being prepared with the judgment dictating the order on 2nd unusually after the court hours. If the judge had already made up mind or was inclined to grant bail after hearing both parties, the best course would have been to grant bail immediately with a detailed order to follow later. This would have saved the accused from extra 52 hours of imprisonment. Goes without saying, in prison every minute counts a lot. What pains me more immensely are the observations in Para – 40,42,45,46,48,49 and 52.
The order starts with lyrics of a Bollywood song. It has been used as a symbol of individual characteristics representing different colours and love for motherland. It is beyond my limits of comprehension how is the lyrics relevant with bail order at all. In any case, in Para 27 the order records that a detailed examination of the order shall be avoided. In para 38, the judge finds herself standing on a crossroad. Here for the first time, the judge remarks that an ‘anti national attitude’ can be gathered from the material relied upon by the state, and the question is that whether it is a ground to keep him in jail. In the very next paragraph, the judge notes that president of the student’s union is ‘responsible’ and ‘accountable’ for any ‘anti national event’ organized in the ‘campus’. JNU has a vast campus and events which can be termed as ‘anti national’ whimsically are being held by different groups of students day and night. In Para 40, the judge goes one step ahead and writes authoritatively that it was a case of raising ‘anti national slogans’ which do have the effect of threatening national integrity. Interestingly, this statement works as the judgment on the subject matter itself. The accused sought protection u/a 19(1)(a) which is excepted against ‘threat to national integrity’ u/a 19(2). In Para 42, the judge again repeats that the kind of slogans raised may have demoralizing effect on the family of martyrs. In Para 45, the judge instructs the faculty of JNU to show ‘right path’ to ‘them’. By them the order implies the slogan raisers. In Para 46, once again the judge reiterated that the reason behind ‘anti national views’ of students requires remedial steps so that such incidents do not recur. In Para 47, 48 the Judge emphatically called such slogans as an ‘infection’ which needed to be cured. In Para 49, the accused is sought to be helped in remaining in the ‘main stream’ for which a conservative method such as bail has to be adopted.
Interestingly, in Para 52, the judge encircled the accused as a condition of the bail that he will not participate actively or passively in any activity which may be termed as ‘anti national’. I ask myself, what is being 'anti national'? This expression is strange to our Constitution, Indian penal code or for that matter any statute book. Bail is a statutory claim. It directly flows from right to life and personal liberty under the Constitutional scheme. Being national or anti national in views of media or of a judge not hearing the case on merits is totally irrelevant. Moreover, the whole order is based on the misconception about army. An army does not guide only the territory of the state but also the thought process of its citizens.
Although in Para 56 the judge quotes the routine statement that the remarks made in the operative part of the order a obiter shall not affect the merits of the case, but why record such statements when one knows they may affect the trial.
This case is a poster example of doing a quality assessment at grass route level for a thorough change in applying law. The bailed rebel poses big questions to the state and the over vocal judge poses bigger ones.
Read the Order Here
Namit Saxena is a lawyer and can be reached at firstname.lastname@example.org
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