Kanhaiya's Bail Judgement Begins With ‘Mere Desh Ki Dharti'

02/03/2016 11:12 PM IST | Updated 15/07/2016 8:26 AM IST

Metaphors abound in the Delhi High Court judgement that gave bail to JNU students’ union president Kanhaiya Kumar – metaphors that seek to emphasise the value of nationalism.

Justice Pratibha Rani begins her judgement granting bail to Kanhaiya Kumar by quoting from the famous patriotic song ‘Mere desh ki dharti’.

“This patriotic song from ‘Upkaar’ by lyricist Indeevar symbolizes individual characteristics representing by different colours and love for motherland. Spring season is a time when nature becomes green and flower blooms in all colours. This spring, why the colour of peace is eluding the prestigious Jawaharlal Nehru University (JNU) situated in the heart of Delhi, needs to be answered by its students, faculty members and those managing the affairs of this national university,” she writes in the judgement.

The judgment also has photographs of the 9 February JNU event for which Kanhaiya Kumar was charged with sedition and criminal conspiracy by the Delhi Police. It even has the poster of the event. But the poster does not have Kanhaiya’s name as one of the organizers.

Granting him conditional bail for six months, the court said it was still a matter under investigation, not related to the limited matter of bail, whether Kumar organized the 9 February event and raised anti-national slogans.

Referring to Kumar’s well-know speech on 11 February, the judgement observes, “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.”

The judgement considers the argument on freedom of speech, and quotes from the Supreme Court’s recent judgement striking down Section 66A of the IT Act. In that judgement, the apex court had said that the reasonable restrictions [Article 19(2)] to freedom of expression kick in only when the act of speech goes beyond discussion and advocacy into incitement of action.

While granting him bail, the judgement expresses concern over the anti-national slogans and reads, “As President of Jawaharlal Nehru University Students Union, the petitioner was expected to be responsible and accountable for any anti-national event organised in the campus. Freedom of speech guaranteed to the citizens of this country under the Constitution of India has enough room for every citizen to follow his own ideology or political affiliation within the framework of our constitution. 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.”

The judgement sees the use of anti-national slogans in JNU as a bodily infection.

“The 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. 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,” the judgement says.

“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,” it adds.

Concluding the judgement, Justice Rani hoped that Kanhaiya Kumar had time in jail to introspect on the events that took place in JNU on 9 February. Therefore, “To enable him to remain in the main stream, at present I am inclined to provide conservative method of treatment,” she said.

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