New Delhi: “It is a case of raising anti-national slogans which do have the effect of threatening national integrity.”
“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 of Afzal Guru and Maqbool Bhatt close to their chest honouring their martyrdom, may not be even able to withstand those conditions for an hour even.”
“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.”
These are some of the observations in the bail order of Kanhaiya Kumar, and they seem to suggest the way the court will think when his case eventually comes up.
It also seems to suggest the way the High Court views freedom of expression.
Kanhaiya Kumar’s bail order ends with a line which says that the observations made in it are only for the purpose of bail and shouldn’t impact the main case.
Judicial orders often carry such disclaimers—that the observations will not have an impact on the main case. Verdicts have been passed saying that they will not be used as a precedent for other cases.
But what does it say about judicial reflection on a particular incident, such as this one?
Alok Prasanna Kumar, who heads the judicial reform vertical at think tank Vidhi Centre for Legal Policy, says that the order fails to show any preliminary finding of sedition.
“I don’t think there is a prima facie finding at all because the order just does not get down to applying the law to the facts at all. It does not even examine what is sedition and whether it is made out even prima facie. There’s little or no reasoning to speak of in the order,” he said.
Kumar’s bail is temporary and will last for six months.
Eminent jurist Fali S. Nariman, on 16 February, wrote in The Indian Express that being anti-national was not an offence in India. Nariman pointed out that pride in the nation was not a constitutional requirement.
“Mere expressions of hate, and even contempt for one’s government, are not sedition. When a person is dubbed ‘anti-Indian’, it is distasteful to India’s citizenry, but then to be ‘anti-Indian’ is not a criminal offence, and it is definitely not ‘sedition’,” he wrote.