This is a guest post by KANAD BAGCHI
The Supreme Court has time and again emphasized the significance of adducing reasons while rendering administrative and judicial orders. Indeed, a reasoned opinion is arguably the fullest expression of the principle of audialterampartem and is a sine quo non in the dispensation of justice. It appears, one might argue, that the Delhi High Court (hereinafter ‘Court’) in its order granting interim bail to Kanhaiya seems to have taken the dictate of the Supreme Court rather earnestly in what was, needless to say, a very ‘detailed’ and ‘incisive’ analysis of the bail application.
While poetic prose is neither repugnant nor unknown to our Court’s jurisprudence, and the present order is yet another captivating addition to that, it is when prose and poesy subsumes legal reasoning, one begins to wonder whether the rule of law would be better served without it. It is more worrisome however, when the judiciary sidesteps its role from enforcing a strict interpretation of criminal law in an attempt at articulating its own perceived sense of nationalism, loyalty and allegiance, wholly divorced from the Constitution and the laws.
In its order, the Court at the outset, set a superfluous ‘patriotic’ tenor to the issues presented, eulogized by its opening couplets (“Mere DeshkiDhartisonaugleUgle here moti mere deshkidharti’”), which finds an uncanny yet enduring presence throughout the order. “…Our forces are protecting our frontiers in the most difficult terrain in the world i.e. Siachen Glacier or Rann of Kutch…” and that the JNU community “…are in this safe environment because our forces are there at the battle field…”Not to mention that the commitment, valor and sacrifice of our defense forces (for whom I have the deepest admiration and respect), does not have the slightest legal or Constitutional implications on a petition for bail in the present instance. Oddly enough however, for what did have implications, the Court simply asserted that “…the anti-national attitude which can be gathered from the material relied upon by the State should be a ground to keep him[Kanhaiya] in Jail…” as if it were that ‘anti-national’ is a new class of penal offense, which has now ghostly appeared and operates to circumscribe the freedoms under the Constitution. The order of the Court is replete with and persistently alludes, to alleged ‘anti-national’ activities by the JNU students, without however, expounding on the true meaning, scope or legal contours of what ‘anti-national’ activities are and how such activities may prima facie amount to ‘seditions acts’ under the section 124-A Indian Penal Code, 1860. ‘Anti-national’ with all its fleeting connotations, is a term which is neither recognized under the IPC nor under the Indian Constitution, and as AlokPrasanna reminds us, was expressly repealed as part of the 43rdamendment to the Constitution“…Article 31D confers special power on Parliament to enact certainlaws in respect of anti-national activities.It is considered thatthese powers of Parliament to make laws for dealing with anti-nationalactivities and anti-national associations are of a sweeping nature andare capable of abuse. It is, therefore, proposed to omit article 31D…”. How assiduously the Court remarked “…It is a case of raising anti-national slogans which do have the effect of threatening national integrity…” without an appraisal prima facie, of how slogan mongering by a group of students in the ‘comfort’ (Court’s own words) of a university campus could have a dissipating effect on the nation. While the Court rightly quoted the decision of the Supreme Court in Shreya Singhal (“…only when such discussion or advocacy reaches the level of incitement that Article 19(2) kicks in…”, the reasoning underpinning the same was completely abandoned. “The kind of slogans raised may have demoralizing effect on the family of those martyrs who returned home in coffin draped in tricolor…” was perhaps the only bit of reasoning that the Court could muster to substantiate its analysis of appreciable ‘threat’ and ‘incitement’. While one can only harbor profound and overwhelming reverence for our martyrs and their families, it is equally astounding to imagine that a particular legal contention, agitated before a court of law, would call for such an impassioned plea.
That apart, the Court seems to have propounded an entirely novel approach towards striking a ‘delicate’ balance between, on one hand, a citizen’s fundamental right (speech) and on the other, reasonable restrictions, wherein one’s right is no longer guaranteed, contained or defined, on the touchstone of Constitution. “…While dealing with the bail application…all concerned that they are enjoying this freedom only because our borders are guarded by our armed and paramilitary forces…” The Court need not have looked any further than the decision of the Supreme Court in L.I.C. vs. Professor Manubhai D. Shah to remind itself that, “…Freedom of speech and expression is thus a natural right which a human being acquires on birth. It is, therefore, a basic human right…” and hence cannot be left suspended on extraneous grounds. It is one thing to suggest that indeed, citizens ought to be indebted to the country’s defense forces, and entirely another, to find an expression of the same operating as an exception to Constitutionally recognized rights. Any student of Constitutional law will recollect that a possible infraction of one’s fundamental right to speech and expression ordains the strictest review of the measure in question, and is tolerated only if it operates within clearly demarcated Constitutional bounds.
Further still, the Court reprimanded and reminded the petitioner of his ‘fundamental duties’ under the Constitution, while simultaneously deciding to completely ignore Art. 51A of the same “(h)…to develop the scientific temper, humanism and the spirit of inquiry and reform…”. Surely, the Constitution does not envisage a hierarchy of fundamental duties within its scheme and not one is more important than the other. Lastly, one is amazed at the Court’s invocation of ‘interdisciplinary scholarship’ in combining aspects of medicine and the law, towards a singular continuing association. “…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…” and “…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…”. Perhaps, the Court’s stride into medical science was as a result of feeble evidentiary value of the allegations recorded against Kanhaiya, his presence and his role in the unfolding events at JNU.
Both Indira Jaising and ArghyaSengupta have succinctly argued that judges ought not to be swayed by ‘national’ or ‘patriotic’ sentiments, lest judicial decisions may exhibit a pattern of political rhetoric. Avowed notions of loyalty, commitment and patriotism, need only to seep into judicial reasoning, as Prof. Baxi posits, through and by the process of ‘Constitutional patriotism’ as distinct from ‘statist patriotism’. Indeed, if India is to be a living example of unity in diversity (Court’s own words), Constitutional guarantees cannot and should not be left to popular notions of nationalism and pride, but evaluated through Constitutional mechanisms alone, as the Constitution remains “…the very pillar upon which the democracy of India stands…” (Union of India v. Naveen Jindal (SC)).
[Kanad Bagchi is currently pursuing his studies in law at the Faculty of Law, University of Oxford, England]