#dnaEdit: A free man?

Jawaharlal Nehru University (JNU) Students Union president Kanhaiya Kumar has deservedly secured his freedom after three tortuous weeks in police and judicial custody. In the period that the Delhi Police swooped down on the JNU campus and arrested him without building a watertight case, Kumar has been defamed as an anti-national in the media, violently assaulted by vigilante mobs, and was the victim of a conspiracy that went to the extent of doctoring videos to claim that he shouted anti-national slogans. In its tearing hurry to arrest Kanhaiya, the Delhi Police has only itself to blame for the hard knocks it has received in these days. The latest is the revelation by Hyderabad-based Truth Labs which found at least two tapes implicating Kanhaiya to be doctored. Kanhaiya’s case substantially rested upon documentary evidence and the Delhi Police’s first task was to ensure that these were in order. But in the rush to make a spectacle and example of Kanhaiya and his university, the serious business of criminal investigation went for a toss and constitutional rights became a bigger casualty.

However, those who would have been gladdened by Kanhaiya’s release will no doubt be disappointed by the Delhi high court order granting him interim bail for six months. Kanhaiya may be a Ph.D research scholar, but he is also a student leader and a political activist. The bail order requiring him to furnish an undertaking to the effect that he will not “participate actively or passively in any activity which may be termed as anti-national” will have a chilling effect on his public engagements, not to mention his intellect. A restraint from violent or criminal activities is understandable but how will Kanhaiya, who went to jail despite no documentary evidence of anti-national activity, decide which of his actions could be construed as “anti-national” in future? Rather than evaluate the police investigation into the case, Kanhaiya’s role in the alleged offence, and whether Kanhaiya’s stay in custody was necessary any longer, the order needlessly conflates the alleged sloganeering of JNU students with the bravery of soldiers at the border. 

Freedom of expression is by no means absolute. But the judge’s premise that soldiers guarding the border help us enjoy our freedoms also does disservice to our Constitution, the executive, judiciary, legislature, media, political class, civil society, and last but not least, the individual citizen. All these institutions and individuals are equally bound to obey the Constitution and act in protection of our fundamental rights, and dissent is one of those legitimate means of safeguarding our freedoms. The judge is well within her rights to believe and rule that the alleged slogans raised at JNU cannot be protected under the fundamental right of speech and expression.

But likening such purported free speech violations to an “infection” which needs to be cured before it becomes an “epidemic” insults the intellectual capacity of university students to think for themselves and evolve as responsible citizens of a democratic republic. More worrying is a contention in the order that “if the infection results in... gangrene, amputation is the only treatment”. The judge does not clarify what this idiom is supposed to mean, but if the intention is to convey that courts will not grant liberty to those arrested for alleged “seditious” speech or that they should not approach courts for relief, the consequences would be very unfortunate. The judiciary is the guardian of the citizen’s fundamental rights, even an erring citizen’s rights.