That JNUSU president Kanhaiya Kumar, arrested for sedition, has got bail, brings a heartening moment in a dispiriting saga. Even as Kanhaiya walks out of jail, however, there are intimations of the wearying battle that still lies ahead — not just for Kanhaiya, but for all those who have stakes in protecting and extending the citizen’s freedom of expression.
The Delhi HC order can be divided into two parts — that which pertains to the letter of the law on sedition and bail, and observations on the case. A careful reading of the first part suggests that there are thin grounds to keep Kanhaiya in jail. By all accounts, he was present at the protest in which allegedly anti-national slogans were raised, but claims that he actively participated in the activities are controversial. Serious questions have been raised about the veracity of the video that the FIR depends on. And Kanhaiya’s own speech after the event, showcasing his repeated assertions of faith in India’s constitutional framework, is hardly the stuff of sedition. There are fundamental questions, too, about the interpretation, applicability and relevance of the law of sedition. Among other things, these have to do with the degrees of separation that lie between discussion, advocacy and incitement.
The second part of the same order, however, raises concerns about the commitment of the judiciary to the protection of the individual citizen’s rights and freedoms from encroachment by the state, notwithstanding the Delhi HC’s decision to grant bail to Kanhaiya Kumar. These freedoms, the court suggests here, are assured by the “armed and paramilitary forces” that are “protecting our frontiers in the most difficult terrain”.
The slogan-shouting students “may not be even able to withstand those conditions for an hour even,” it says. While there is no disputing the role of the armed forces in guarding the country’s integrity, just why does the court deem it necessary to mention it in an order concerning the freedom of speech? In its praise of the military as guarantor of individual freedoms, is the court abdicating its own responsibility to uphold them? It is disturbing also that the court should liken “thoughts reflected in the slogans” to “a kind of infection” which “needs to be controlled/ cured before it becomes an epidemic”. Its talk of “gangrene”, “antibiotics”, “surgical intervention” and “amputation” is deeply troubling.
Further, the court asks Kanhaiya to furnish an undertaking that he will not participate “actively or passively” in any activity “which may be termed as anti-national”, disregarding the fact that this case has provoked a debate on what is anti-national. It asks that a member of the faculty should assure the court “not only with respect to appearance before the court, but also to ensure that his thoughts and energy are channelised in a constructive manner”. The impression is inescapable: Even as it grants bail to the JNUSU president, the court order may encourage the further policing and shrinking of the space for free speech. Given that India has traditionally looked up to the court to protect and extend this space, this is a disquieting portent.