Thursday, 3 March 2016

The Curious Case of Kanhaiya Kumar's Bail

A single judge of the Delhi High Court passed an order on March 2, 2016, granting interim bail to Kanhaiya Kumar, after he was arrested on February 12, 2016 on charges of sedition and conspiracy, arising out of events that are said to have transpired on the campus of Jawaharlal Nehru University (JNU) in Delhi.

Certainly, an order of conditional bail for 6 months provides some relief and joy to Kanhaiya Kumar and the sizeable number of people across India and the world who came out in support for him. But a deeper reading into the order reveals that it is problematic on more than one count.

I. The grant of interim bail: what considerations apply?
The chief offence that Kanhaiya Kumar has been charged with is sedition, under Section 124-A of the Indian Penal Code, 1860 (IPC). This is a cognizable, non-bailable offence, punishable with up to imprisonment for life. While the Code of Criminal Procedure permits the granting of bail in non-bailable offences, it is the courts which have developed the jurisprudence relating to the circumstances in which a court can or should grant bail.

A series of cases of the Supreme Court have held that bail should be granted based on the following considerations:

(a) the nature of accusation and the severity of punishment in case of conviction and the nature of       supporting evidence;
(b) reasonable apprehension of tampering of the witness or apprehension of threat to the     complainant;
(c) prima facie satisfaction of the Court in support of the charge.

One of the leading Supreme Court judgments containing this proposition was cited by the Delhi High Court in Kanhaiya's Bail Order (Kalyan Chandra Sarkar v. Rajesh Ranjan @ Pappu Yadav & Anr. (2004) 7 SCC 528), with the Delhi High Court duly acknowledging that the Kanhaiya's Bail Application would need to be decided within this "limited scope".

II. Is being "anti-national" an offence?
After recording the submissions on behalf of Kanhaiya and the State, at Paragraph 31 of the Bail Order, the Delhi High Court lays down the issue, which in its opinion should form the basis for assessing Kanhaiya's bail application:

"The limited controversy as on date is whether the petitioner was actively participating in the alleged anti-national activities on that day or he was present there only to intervene between two rival factions of the students."

Further, at Paragraph 38, it is reiterated:
"The question is, in view of the nature of serious allegations against him, the anti-national attitude which can be gathered from the material relied upon by the State should be a ground to keep him in jail."

The very premise of the inquiry in the case appears to not only be misplaced, but also at variance with the certain other parts of the order. In the subsequent paragraph, the Order sets out the text of the offence of sedition as contained in Section 124-A, which seeks to inculpate a limited class of offenders, i.e. "[w]hoever, by words, either spoken or written, or by signs, or by visible representation, or otherwise, brings or attempts to bring into hatred or contempt, or excites or attempts to excite disaffection towards, the Government established by law in India..."

It is well known that Indian courts have watered down this offence from the colonial era to instances where there is a clear "incitement to violence", and excluded from its purview instances where the government is merely criticized, including through speeches. A helpful summary is available here.

In fact, the Delhi High Court's Bail Order itself makes a reference to a very recent judgment in the Hardik Patel case, where the Gujarat High Court had occasion to consider the constituent elements of the offence of sedition and observed: "...a speech or a statement, in which the speaker exhorts the persons, who are listening to him, to resort to violence, prima facie, could be said to be intended to excite disaffection towards the established Government and amounts to an offence under Section 124A of the Indian Penal Code."

Even in its own assessment, one of the tasks before the Court in this case was to satisfy itself of the charge made out against Kanhaiya Kumar. Such an exercise would necessarily entail an examination of the ingredients of the alleged offence in question, and the formulation of a prima facie view as to whether there is a possibility of such an offence having been made out. Instead of proceeding to analyze whether there exists a prima facie case that Kanhaiya incited his audience to resort to violence (and thereby met the pre-requisites of Section 124-A), the entire judgment proceeds to discuss whether Kanhaiya took part in "anti-national" activities.

This case has seen tremendous media coverage, with the discourse being framed in terms of whether the acts of Kanhaiya Kumar and other students were "anti-national". Surely a court of law, instead of being swayed by these semantics, should refrain from travelling beyond the confines of the statute, and endeavour to assess a bail application in a more nuanced manner. A reading of the order reveals that the Judge has proceeded on her subjective assessment of "anti-national" conduct, whereas even by its own admission, the offence in question is quite different.

The treatment of "anti-national" activities as an offence is problematic because it has the potential to destroy the jurisprudence of sedition carefully crafted by Indian courts over decades: that which seeks to protect fair and legitimate criticism of the State. When the adjudication of an application for grant of bail bypasses the very offence the accused is sought to be tried for, faith in the judicial process is eroded.

III. Evidence and Conclusions
As discussed above, while dealing with a bail application, the Court must exercise its discretion in favour of granting/withholding/cancelling bail by satisfying itself of the prima facie case in support of the charge made against the accused.

By definition, a prima facie finding can never be a final finding, and must only be based on a preliminary consideration of the evidence available. This is important, since bail applications are most commonly brought at the pre-trial stage, at which point the Court has not had an opportunity to consider the evidence in detail. In Martin Burn Ltd. v. R.N. Bangerjee [AIR 1958 SC 79], the Supreme Court noted:

"A prima facie case does not mean a case proved to the hilt but a case which can be said to be established if the evidence which is led in support of the same were believed. While determining whether a prima facie case had been made out the relevant consideration is whether on the evidence led it was possible to arrive at the conclusion in question and not whether that was the only conclusion which could be arrived at on that evidence."

In fact, at paragraph 27, the Delhi High Court itself concedes the limits of its inquiry, based on a Supreme Court ruling:
"At this stage, a detailed examination of the evidence is to be avoided while considering the question of bail, to ensure that there is no prejudging and no prejudice, a brief examination for satisfying about the existence or otherwise of a prima facie case is necessary."

A complete reading of the Delhi High Court's Bail Order reveals, however, that the "prima facie" threshold has been overstepped: the text of the Order is replete with sweeping assumptions and conclusory remarks about the facts and evidence, which at this early stage have not passed the muster of trial.

The Delhi High Court has gone on to list some of the slogans chanted (Paragraph 29), and makes certain value-loaded observations about those "shouting anti-national slogans holding posters of Afzal Guru and Maqbool Bhatt close to their chest honoring their martyrdom (Paragraph 41). Further, it is concluded that the fundamental right to freedom of speech and expression cannot extend to protect the chanting of such slogans, and "this is a kind of infection from which such students are suffering which needs to be controlled/cured before it becomes an epidemic."

This is a case where there continues to be a lack of clarity about exactly what transpired on the day the offences are said to have been committed, with many competing versions of facts. In fact, the mere fact of the allegedly seditious slogans having been chanted by Kanhaiya Kumar is at the centre of the controversy, and will form the subject matter of a detailed inquiry at the stage of trial.  It is now reported that a forensic report has found some of the slogans purportedly uttered by Kanhaiya to be doctored.

In a situation where facts are far from proved, there is a responsibility on the Court to treat the rivalling submissions with a certain degree of circumspection at such an early stage, instead of following an approach where they are deemed to have been established.

IV. Jingoism and the dilution of Fundamental Rights
While discussing Kanhaiya's argument based on the fundamental right to exercise freedom of speech and expression, it is surprising to find the invocation of the role of the armed forces of India.

At Paragraph 39:
"While dealing with the bail application of the petitioner, it has to be kept in mind by all concerned that they are enjoying this freedom only because our borders are guarded by our armed and paramilitary forces. Our forces are protecting our frontiers in the most difficult terrain int eh world i.e. Siachen Glacier or Rann of Kutch."

At Paragraph 41:
"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 lose to their chest honoring their martyrdom, may not be even able to withstand those conditions for an hour even."

These observations are unfortunate for not only is their relevance questionable, they also give the judgment in a jingoistic hue. But more worrying is the attempt to dilute the status of certain fundamental freedoms guaranteed by the Constitution of India. The point of Fundamental Rights under the Constitution of India, as envisaged by its framers in all their wisdom, is just that: they are fundamental, and form part of the Basic Structure of the Constitution. They exist to protect every citizen, and are certainly not contingent on the actions of the nation's armed forces or the volatile political situation at the country's borders.

V. The dangers of prejudicing a fair trial
It is noteworthy that the Bail Application was being heard by the Delhi High Court not as a matter of ordinary course, but for reasons of security after incidents of violence at the district court in Patiala House with jurisdiction to try the case. In the absence of any specific directions, the remainder of the trial will continue at Patiala House.

The Supreme Court has warned against the dangers of influencing a subordinate trial court in Kanwar Singh Meena v. State of Rajasthan and Anr. [(2012) 12 SCC 180], where it was highlighted that at the stage of granting bail, the court must restrict itself to whether a prima facie case exists against the accused, and refrain from undertaking "meticulous examination of the evidence collected by the police" or commenting on it. The rationale for this is that "[s]uch assessment of evidence and premature comments are likely to deprive the accused of a fair trial." In this case, the Supreme Court refrained from commenting on the credibility of certain evidence, categorically noting that since this was the function of the trial court, and if the Supreme Court were to undertake a detailed discussion of it at an early stage, it would likely influence the trial court.

Kanhaiya's Bail Order is riddled with contradictions, value-loaded statements and conclusions on issues where evidence has not yet been examined in detail. Such an order is dangerous for the impact it can potentially have on the process of a fair trial in the court with jurisdiction to try it, which is yet to appreciate the evidence in the matter and may well be influenced by the findings of the Delhi High Court.


  1. By far this is the most sensible and fact based analysis I have read.
    I would recommend you to send this to some media house so that more people can read it.