Delhi HC’s bail order vindicates those baying for Kanhaiya’s blood


Abhishek G Bhaya 
What if radical elements take law into their hands in an effort to ‘cure’ the so-called ‘infection’ of ‘anti-national’ thoughts by ‘amputation’?

“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.”


At first glance, I couldn’t believe these lines were a part of the official Delhi High Court order on Kanhaiya Kumar’s bail plea, when a loudmouth right-wing person (an old colleague from the media fraternity) wrote on his Facebook post mocking those, who welcomed and celebrated the JNUSU leader’s release from judicial custody after a span of 22 days.

This rather garrulous individual is notorious for posting and sharing misleading news and half truths churned out by supporters of the RSS, BJP and their front organisations.

Earlier on the same day, he had shared a post claiming that Turkey had issued a postal stamp on Narendra Modi to ‘honour the greatest leader of the world’.

I had to correct him that it was part of the commemorative stamps brought out during G20 Antalya Summit last November and included the stamps on all the participating world leaders, and so it was certainly not an individual honour to Modi, as he would have us believe.

Shocking analogy

So, when I saw the post on my timeline, using a medical analogy to imply that the alleged anti-national thoughts expressed by JNU students were an ‘infection’ that ought to have required a ‘cure’ and an eventual ‘amputation’, it naturally appeared to me as yet another right-wing propaganda.

Impulsively, I urged my former colleague to stop spreading such falsehood. In response, one of his right-wing allies posted a link to Justice Pratibha Rani’s now much-debated bail order. After going through the 23-page judgment in great details, and with some shock, I had to eat my words.

I apologised for suggesting they were spreading rumours, however I still expressed my reservations on the language used by the judge in her observations.

They sounded triumphant, and I could sense why.

I am sticking my neck out at the risk of facing contempt of court but I have to say this: Justice Pratibha Rani’s order appears almost an indictment of Kanhaiya, even before the trial is over. I find it alarming.

No wonder, despite JNUSU leader getting bail, the judicial order that made it possible is ironically being seen as a vindication of those baying for his blood on charges of sedition.

Further, the usage of medical analogy in the judgment is rather inflammatory. What if radical elements take law into their hands in an effort to ‘cure’ the so-called ‘infection’ of ‘anti-national’ thoughts by ‘amputation’? Her remarks, particularly in the aftermath of the Patiala House court violence by lawyers (or hooligans?), are extremely dangerous.

Kanhaiya’s lawyers must file an appeal in Supreme Court against the unnecessary references in Justice Pratibha Rani’s order as such remarks have the potential to influence the course of proceedings in the trial court.

Likeness with rightwing rhetoric

Justice Rani’s order has several passages that have an uncanny likeness with the language and rhetoric typically used by the followers of RSS, BJP and their ilk. Let’s take a look at what she said:

The judgment begins with a few lines from popular ‘patriotic’ song ‘Mere Desh Ki Dharti Sona Ugle’ from film Upkaar. Although Justice Rani attribute the lyrics wrongly to Indeevar, in place of Gulshan Bawra (who even won a Filmfare Award for best lyricist for the song in 1968), the song sets the ‘patriotic’/’nationalist’ theme – so popular with rightwingers – for the rest of the order.

In the very next para (Para 2), Justice Rani nearly blames the JNU students, faculty and management of disrupting the peace on the campus:
“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.”

Later in the order (Para 39), the honourable judge while defining the parameters of freedom of speech, puts the onus on Kanhaiya for anti-national events in the campus:

“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.”

In the same para, Justice Rani invokes the patriotism of our soldiers and martyrs and pits it, rather unfairly, against Kanhaiya’s defence. This, surprisingly in a language similar to those of BJP, RSS and ABVP spokespersons and perhaps even News Anchor Arnab Goswami at his jingoistic best on the topic of military patriotism:

“While dealing with the bail application of the petitioner [Kanhaiya], it has to be kept in mind by all concerned that they are enjoying this freedom [of speech] 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.”

Continuing in the same breath in Paras 41 and 42, Justice Rani says:

“Suffice it to note that 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 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.”

“The kind of slogans raised may have demoralizing effect on the family of those martyrs who returned home in coffin draped in tricolor.”

Then, comes the chilling verdict (Para 47) which precedes the medical analogy (Para 48), mentioned at the beginning of this blog:

“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.”

There’s a pattern in Justice Pratibha Rani’s arguments, which is identical to those promulgated by the right-wing ideologue. Replace her with a BJP MP in the parliament or the party’s spokespersons on television debate on JNU row, and you’ll hear the same line of reasoning soaked in emotional nationalism.

It is increasingly becoming a trend by politicians and followers of a particular ideology to invoke the martyrdom and sacrifice of our soldiers to set the benchmark of nationalism. While this appears okay in political discourse and primetime TV debates, the same could not be said of a judicial document. After all, who is to decide if a farmer’s nationalism is any lesser than that of a martyr? This argument is not only fallacious, but also dangerous as it attempts to create a false binary, as rightly pointed by Kanhaiya in his speech.

‘Model of what not to write’

Senior lawyers and academics have strongly criticized the political nature of Justice Rani’s observations, with Prashant Bhushan even dubbing the High Court order as ‘absurd’.

“Nationalism or anti-nationalism is not offence under any law. It’s not defined by any law. Her view to expound on nationalism or anti-nationalism was totally uncalled for. Her inputs on infection, gangrene, surgery makes it more of a political speech rather than the judgment of a court. She had no business to go about saying what was happening in JNU was anti-national. These are the kinds of political speeches BJP spokespersons go on making,” Bhushan said.


Lawyer Sanjay Hegde thought that the beginning of the verdict was inconsequential.

“The 23-page bail order could have been finished in three lines,” Hegde said. “This judgment by Pratibha Rani may later be used as a model for what not to write in a judgment,” Sanjay Hegde added.

“Equally unbecoming is her view that the freedom of expression is the gift of the armed forces guarding our borders. It raises fantastic images of enemy forces marching across our unguarded frontiers and stultifying our right to free expression. This view might find a natural home in political rhetoric, but not from a High Court judge,” writes Arghya Sengupta, Research Director, Vidhi Centre for Legal Policy, in a blog in Times of India.

“The freedom of speech is a gift of the Constitution – many institutions protect it, including the judiciary itself. Singling out one, particularly the army, is a rhetorical sentiment that has little place in a judgment,” he rightly points out.

“Judged on these terms, Justice Rani’s views come up short. Not only is her reasoning poor but also her final order granting Kanhaiya bail subject to the condition that he will not participate in any ‘anti-national’ activity is simply unenforceable. ‘Antinational’ is a political term; it is not clear in the eyes of the law what it would mean,” Sengupta concludes.

The author is a Gulf-based journalist. The views expressed here are his own and do not necessarily represent those of JantaKaReporter)