Judge's comments uncalled for

It was expected that JNU students’ union president Kanhaiya Kumar, who was arrested by the Delhi Police on sedition charges, would be granted bail by the Delhi High Court. Bail is the judicial norm even in cases where the charges are serious and there is evidence of commission of offence. In Kanhaiya Kumar’s case, the charges are serious, but it was clear to everyone that the evidence was flimsy and trumped up. Judge Pratibha Rani granted him bail, but many comments she made in the bail order were uncalled for. The advice she proffered and the caution that she sounded to Kanhaiya Kumar, to students in general and to the teachers of the university were unnecessary and inappropriate. She sounded as if she believed some of the charges, though she could not deny bail to Kanhaiya as there was no evidence against him. In the obiter dicta, the judge waded into areas she need not have entered.

There was no need for the judge to give a lecture to Kanhaiya Kumar on the duties of a citizen and to refer to what is called “passive anti-nationalism”. The order required him to undertake that he “will not participate actively or passively in any activity which may be termed as anti-national”. There is a hint here that anti-national activities took place on the campus. Who judges them? The police? This condition even opens up the chance that he may be arrested again on an issue which the police considers anti-national. The judge’s idea that the soldiers guarding the borders ensure the citizen’s freedom of expression is also curious. All citizens’ freedoms are derived from the Constitution. It is bizarre, and even mischievous, to posit soldiers against students and others in a discussion on rights. The reference to the “thought” reflected in some slogans as an “infection” which needs to be treated or cured is again controversial. The remark that amputation is the only treatment if the infection develops into gangrene is not very clear in its implication, but it is a chilling reminder of the methods available to smother the rights of citizens. The court tells Kanhaiya Kumar to introspect, and this is also an unwarranted advice which assumes that there was some wrong-doing on his part.

The judge should have stuck to the strict point of law about grant of bail and need not have made these undesirable comments. They make condemnations without indictment, and give a distorted view of important rights of citizens. They have set a bad precedent. Legal possibilities of removing these comments from judicial records should be explored.