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Why Kanhaiya Kumar’s Bail Order Is No Exception To The ‘Strange Ways Of Indian Judiciary’

By Radhakrishnan Puthenveetil

13 March, 2016

A news report, ‘Why Didn’t You Wash Underwears: Judge’s Memo to Woman Office Assistant‘, begins thus: “In an instance that laid bare the allegedly widespread abuse of official facilities, a sub-judge in Erode issued a memo to a woman court staff seeking explanation for not washing undergarments at his residence.” The report is doing rounds as hot news.

While critiquing the judge’s act in larger context, an editorial, ‘The Raj Hangover Of Sarkari Sahibs‘, commented: “This abuse of power is probably systemic. It is a reflection on the abuser, for how can a judge guilty of such flagrant malpractice be expected to deliver justice? Unfortunately, these people are the guardians of the system, so there’s precious chance that they will ever feel the weight of retribution.”

Another report, ‘Justice Karnan: A Timeline of Controversies‘, recounts Madras High Court judge C.S. Karnan’s judicial shockers from November 2011 to February 2016. Of these, Karnan’s judgement of June 17, 2013, in Aysha vs. Ozir Hassan equated adult sex and live-in relationship with marriage. Paragraph 16 (viii) of the judgement stated, inter alia, that the marriage formalities are only to comply with each one’s respective religious customs for the satisfaction of the society; if any couple, subject to their attaining the mandatory age of freedom, indulge in sexual gratification, then that would be considered as valid marriage and they could be termed as “husband and wife”.

The judgement came in for severe media criticism and ridicule. A Tamil daily, Dinamalar which interviewed me along with K Chandru (a former judge of the Madras High Court) and two others published our views in a write-up ‘Is Marriage Necessary Or Not‘ on June 23, 2013. In my position, that the judgement gave a crude and socially harmful twist to the very idea of consummation and cut at the root of the institution of marriage was highlighted. Among others, a report headlined ‘Indian Court Rules That Any Couple Who Sleeps Together Is Considered Married‘, The Washington Post stated that the verdict left many Indians confused – whether the verdict was forward-looking or prudish; did it allow unmarried couples to enjoy the rights of the formally wed, or did it force them into unwanted legal obligations.

Striking a different posture, a judge of a special fast track court in Delhi stated in his judgement of October 7, 2013 in a rape case (State vs. Sushil Kumar) that girls voluntarily elope with their lovers to explore greener pastures of bodily pleasure and on return to their homes, conveniently fabricate the story of kidnap and rape in order to escape scolds and harsh treatment from the parents; that the girls are morally and socially bound not to indulge in sexual intercourse before a proper marriage and if they do so, it would be to their peril and they cannot be heard to cry later on that it was rape.

The judgement courted a lot of controversy for its outrageous and sweeping statements. Stating that the fact that the judge blurs the lines between rape and consensual sex before marriage demonstrates that he is not fit to make legal decisions about lives of sexual assault survivors, some activists had reportedly approached the registrar general of the Delhi High Court for action against the judge.

Last month Justice Karnan in a Suo Motu order stayed the CJI order of his transfer to Calcutta High Court; asked the CJI to submit a written statement on the issue by April 29; and told the media that he would direct the Chennai police to register an FIR under the SC/ST (Prevention of Atrocities) Act against the two judges of the Supreme Court who restrained him from undertaking any judicial work. Karnan later wrote to the CJI, that he passed an “erroneous order” due to his mental frustration resulting in “loss of mental balance”. The crucial issue to note here is, after losing mental balance how was Karnan allowed to continue working; as such judges can cause a lot of harm to litigants approaching the judiciary for justice.

Though the above gleanings are only illustrative samples of the dangerous swings of Indian judiciary, the latest to note is the order of March 2 releasing JNUSU leader Kanhaiya Kumar on interim bail by Delhi High Court judge Pratibha Rani.

Of the bail order spread over 23 pages, paragraph 4 refers to the JNU event on February 9 and the consequent arrest of Kanhaiya Kumar; paragraph 31 states that the limited controversy as on date (March 2) is whether the petitioner was actively participating in the alleged “anti-national activities” that day or he was present there only to intervene between rival factions of the students; what was the role played by the petitioner on that day is subject matter of investigation and it is desirable at this stage to leave it to the investigating agency to unearth the truth; paragraph 32 has reproduced Section 124-A of Indian Penal Code, on sedition: what constitutes sedition and the punishments for it; and paragraph 40 states that it is a case of “raising anti-national slogans which do have the effect of threatening national integrity”.

Of the remaining text of the bail order, the following paragraphs are very important to place in perspective the media debate on its bizarre nature.

Paragraph 38: Today I [the judge] find myself standing on a crossroad. The FIR in question has been registered only on 11th February, 2016. Investigation is at the initial stage. The petitioner is the President of Jawaharlal Nehru University Students Union. His presence at the spot on 9th February, 2016 has been claimed on the basis of raw video footing of that day i.e. 9th February, 2016. The petitioner at present is in judicial custody. The question is, in view of the nature of serious allegations against him, the ‘anti-national attitude‘ which can be gathered from the material relied upon by the State should be a ground to keep him in Jail.

Paragraph 39: As President of Jawaharlal Nehru University Students Union, the petitioner was expected to be responsible and accountable for any anti-national [emphasis added] 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.”

Paragraph 47: The investigation in this case is at nascent stage. 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.

Paragraph 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.

Paragraph 49: During the period spent by the petitioner in judicial custody, he might have introspected about the events that had taken place. To enable him to remain in the mainstream, at present I am inclined to provide conservative method of treatment.

Paragraph 50: Taking into consideration the facts and circumstances, I am inclined to release the petitioner on interim bail for a period of six months.

Paragraph 52: The time is ripe that while giving some concession to the petitioner on monetary aspect for purpose of furnishing the bond, he can be required to furnish an undertaking to the effect that he will not participate actively or passively in any activity which may be termed as anti-national. Apart from that, as President of JNU Students Union, he will make all efforts within his power to control anti-national activities in the campus. His surety should also be either a member of the Faculty or a person related to the petitioner in a manner that he can exercise control on the petitioner not only with respect to appearance before the Court but also to ensure that his thoughts and energy are channelized in a constructive manner.

The nature of the bail order has flustered sections of the media, the public and senior lawyers – barring of course, the sections which support the BJP and the Sangh Parivar. In fact, some of the observations in the bail order may turn out to be grist to the anti-JNU ABVP-Sangh Parivar mill.

An editorial, ‘Welcome Release, Strange Remarks‘, faulted the judge for her unusual observations strengthening the police theory that the entire JNU campus suffers from some unpatriotic and anti-national infestation that requires cleansing through pro-active policing; and for her reference to “conservative method of treatment” for a supposedly serious infection that would otherwise require surgery. The editorial contended that in many respects the bail order accepts the prosecution’s case; it concludes that the activities at the event were anti-national, but does not say if the essential ingredients for invoking the sedition charge were present; it declares that Kumar cannot invoke the freedom of speech under Article 19(1) (a), and appears to anchor its decision to grant bail on the sole ground that he should “remain in the mainstream”; the court’s condition that Kumar should furnish an undertaking that he would not actively or passively participate in any activity that may be termed anti-national is a vague stipulation; in a democracy, the court should seek to have a restraining influence on the executive, but should not be seen as contributing to any partisan discourse that pits radical campus politics against a narrow notion of nationalism; as the country is witnessing a disturbing trend of left-wing students, and liberal intellectuals backing their right to practise their brand of politics, being dubbed ‘anti-national’, while the Army and its admirers are placed in patriotic counter position to them, courts should not give the judicial imprimatur to the bogus binary sought to be created between “seditious students” and “selfless soldiers”; and that student activists cannot be portrayed as enemies of the families of martyred soldiers.

Another editorial, ‘A Free Man?‘ asked how will Kanhaiya, who went to jail despite no documentary evidence of anti-national activity, decide which of his actions could be construed as “anti-national” in future. The editorial stated that rather than evaluate the police investigation into the case, Kanhaiya’s role in the alleged offence, and whether Kanhaiya’s stay in custody was necessary any longer, the order needlessly conflates the alleged sloganeering of JNU students with the bravery of soldiers at the border; likening purported free speech violations to an “infection” which needs to be cured before it becomes an “epidemic” insults the intellectual capacity of university students to think for themselves and evolve as responsible citizens of a democratic republic; and that more worrying is a contention in the order that “if the infection results in… gangrene, amputation is the only treatment”.

There are several other views against the bail order, of which senior lawyer Prashant Bhushan’s views (In Karan Thapar’s show To The Point) are very important to note. Highlighting the absurd nature of the order passed by the judge, Bhushan said: “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 make it more of a political speech rather than the judgement 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.”

The purpose of having judges in courts is to find solutions to legal and social problems; but if the judges themselves become problems, who will find the solutions? Stated differently, if law is an ass, what could be its ambience, what of its abhorrent practitioners and their victims in society?

Radhakrishnan Puthenveetil is Professor of Sociology at the Madras Institute of Development Studies, and a media commentator on public affairs.



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