Kanhaiya Kumar’s Bail Order

“Do you even know what sedition is?”, was the question the Delhi High Court asked the Delhi Police on the day of Kanhaiya Kumar’s bail hearing. It proceeded to rap the police for lapses in the investigation. The preceding weeks had been dominated by reports that the videos ‘incriminating’ Kanhaiya were doctored. How would you have predicted the outcome of his bail application? I expected that the court will grant him unconditional bail and probably reprimand the police for arresting him callously. I was wrong.

Bail orders are usually brief, not a pronouncement on guilt or innocence. The order granting Sanjay Dutt bail in 1995 doesn’t contain a sermon on terrorism. The order granting R.K Pachauri bail doesn’t append a lecture on the rampant sexual violence against women.

The order granting Kanhaiya bail differs. After recording arguments advanced by all sides, the court emphasises the need to avoid ‘prejudging’ and ‘prejudice’. Irony died a cruel death, shortly thereafter.

The court cites two judgments, but not any by the Supreme Court that directly deals with sedition – such as Balwant Singh v State of Punjab where the apex court acquitted those who raised slogans of ‘Khalistan Zindabad’. It also fails to cite its own judgment in Greenpeace employee Priya Pillai’s case – where the court observed that the phrase ‘Anti-National’ is not even defined in most dictionaries and that belligerence of views on nationalism can often lead to jingoism.

The court then observes: ‘Today I find myself standing on a crossroad.’ Defying law and logic, the question then framed is whether Kanhaiya’s bail ought to be denied in view of his ‘anti-national attitude’. The phrase ‘anti-national’ can neither be found in the constitution of India nor in the Indian Penal Code. I wish the court had done all of us a favour and drawn up an exhaustive list of what constitutes an anti-national attitude since our freedom depends on it. Although, after this endorsement of the phrase by the court, I’m certain police stations and courts are going to be flooded with complaints of people exhibiting an anti-national attitude. The only crossroad I can imagine is where one road leads to upholding the constitution and the other leads to acting against anti-nationals- a conflict which is bothering many institutions and political representatives right now.

Whatever the phrase may mean, the court conclusively asserts that its existence can be gathered from the material before it. It then declares that as a president of JNU’s student’s union, Kanhaiya is accountable for all anti-national conduct on campus. I’m sure Kanhaiya wishes that the allegations against him were of being a nationalist and beating up journalists, since no one is being held accountable for that. The court also holds that the armed forces guarding our ‘frontiers in the most difficult terrain in the world’ have to be kept in mind while deciding bail. It observes that the slogans will have a demoralising effect on the families of martyred soldiers.

Why? Every bail application is an application asserting the right to liberty. Why do the sacrifices of the armed forces not have any bearing when the bail applications of those accused of encounters, riots, rapes etc. are decided? More importantly why must everyone stop asserting their rights or expressing discontent because the army guards our borders? Is the army guarding a piece of land or the liberty of people who live on it? How is it that the reasoning of a judgment echoes not the law but the statements of politicians and the arguments on social media?

The court then condemns the alleged slogans – slogans whose utterance is yet to be proved by anyone. It condemns students who grieve for Afzal Guru, conveniently forgetting that Justice AP Shah, a former judge of the Delhi High Court and aformer chairman of the Law Commission, publicly stated that he believed that Guru’s and Yakub Memon’s executions were politically motivated.

In the middle of this preaching is a declaration that the alleged slogans are not protected by the right to freedom of speech and expression. That’s problematic. First, the court exceeds jurisdiction -the only question before it is whether Kanhaiya is entitled to bail or not. Second, this line of enquiry requires that the court specify the constitutional restriction to speech under which the act falls, and it doesn’t do that. Third, the court prejudices the mind of the trial court which will be adjudicating in the case.

The most inhumane part of the judgment is however saved for the conclusion where the court calls the thoughts of those who may or may not have raised the alleged slogans an ‘infection’. It adds if the infection is not cured with antibiotics it may need to be ‘amputated’.

Where does this metaphor originate from? An excerpt from the book ‘Genocide and Fascism: The Eliminationist Drive in Fascist Europe’ written by Aristotle Kallis is pertinent here:

Weindling detected in the growing medicalisation of both ‘health’ and disease’ the seeds of a trend that would become ubiquitous in all cases of twentieth century genocide: the extension of the medical metaphor… from the condition itself to the individual carrying it… The strategy deployed to deal with such problems Weindling argued, was confinement and disinfection- all within a medicalised imagery of elimination that was depicted as the only sensible solution for restoring the ‘health ‘of the affected collectivity. It should come as no surprise, then that discourses associated with genocide have always tended to present the chosen victims in terms of a lethal medical threat (vermin, pest, plague etc.).

This article was first published in Mumbai Mirror


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