Critical reflections on Kanhaiya Kumar's bail judgment #JNU

Can an anti-national attitude by itself and by definition subjectively determined be a reason to keep anyone in jail? 

Is a student union president really “responsible” and “accountable” for any and all anti-national activity on campus? Does becoming a student union president mean you become the campus policeman?

Yes, we must appreciate our military and the sacrifices involved. We must also condemn military atrocities on civilians when they occur. But does the existence of our military curb our freedom of speech especially if we are not at war and such speech does not aid the enemy?

I think the Judge committed an error when she prejudges the case before trial and states: “It is a case of raising anti-national slogans which do have the effect of threatening national integrity”.

Para 41 was not needed. Just because a citizen might not be fit enough to serve in the army or might choose not to serve in the army, does not make such citizen a second class citizen compared to a soldier on the border.

Any kind of alleged demoralizing effect of slogans on families of dead soldiers is not a ground for a restriction on freedom of speech under Article 19(2). Next the RSS might claim the slogans had a demoralizing effect on its cadres doing flood relief work.

Fundamental rights cannot be curtailed by referring to fundamental duties.

I have no issue with the Judge stating a need for introspection at JNU. That sentiment is good and that indeed is what the Government should have aimed for through communication instead of arbitrary arrests and sedition charges.

Para 46 is troubling because it suggests that merely raising slogans on Afzal Guru’s death anniversary is anti-national without any kind of nuance as to the nature or intent of such slogans. Again this relates to the contested narratives about who really Afzal Guru was and how do we remember him. Can there be a State issued narrative that we all must accept without question?

The second sentence of paragraph 47 is also troubling. How can mere thoughts be policed by the State. This sentence again prejudges the case.

The statement on infection also amounts to prejudging the case.

JNU is very much part of the mainstream as is AISA.

The direction for an undertaking that Kanhaiya will not actively or passively participate in anti-national activity is troubling. Who will define this anti-national activity? Where does the law define this? What will amount to passive participation? This direction is an unreasonable restriction on Kanhaiya’s fundamental rights. Again let us remind ourselves, there is no law which criminalizes behaviour by using the term anti-national. And this is a good thing because anti-national is not something that can be easily defined.

Why place the burden on Kanhaiya to prevent anti-national activities in JNU? Surely that can only be the responsibility of the University administration which can be directed only by the Government and not by the Judge hearing Kanhaiya’s bail application.

Why should Kanhaiya’s surety channelize his thoughts in any way? So does the surety also have to undertake to channelize Kanhaiya’s thoughts and ensure that Kanhaiya acts as the campus policeman?

But it is good that Kanhaiya has got bail. As someone tweeted, Kanhaiya would not have got bail if the police had had even a shred of evidence of sedition against him.