The words of Delhi high court judge Pratibha Rani in granting interim bail to JNUSU president Kanhaiya Kumar in a sedition case has raised eyebrows, and understandably so.
In invoking ‘obiter dicta’, the judge is well within her institution’s parameters. However, there is more to this in a context where the limits of the Constitution are being stretched, as we have seen in the fallout of an event at the university where three sets of slogans were raised by three categories of people present.
Civil liberties and freedom of expression are critical to the foundations of our republic. The judge, however, invoked an idea of “passive anti-nationalism” as she lectured Mr Kumar on his duties as a citizen. In a sensitive matter, conditional bail with vague caveats is difficult to police and liable to be misused.
In a nation of many social classes with conflicting interests, patriotism cannot be defined in a narrow manner. The judge’s implied criticism of “anti-national” attitude can be taken in the right spirit, but must also allow room for discussions on a number of pertinent issues in a larger social context. There is in this the question of whether and how much one can stretch individual interpretations of patriotism, especially when “passive” acts or silence can be interpreted as evidence of sorts to discuss a charge so grave as sedition. Some of the issues in question fall in the political rather than the judicial realm.
In the Kanhaiya Kumar case, sedition is no doubt a severe charge, but the anti-sedition law’s relevance itself is being questioned in the public domain. The judge’s words are no doubt founded on good intentions. But she should have been aware that every word of hers will be scrutinised in a surcharged atmosphere. Separately, in contrast to the high court’s words, the Chief Justice of India, while heading a bench in a case challenging a bar examination, has said that not everyone who wears black robes deserves the label of a lawyer. We are tempted to view that in the context of the violence by lawyers at Patiala House courts.
The nation is sacred, but so is rule of law and the Constitution. The CJI’s words are reassuring in the context of tensions involving the judiciary and should be viewed as a benchmark against which words from lower court judges must be assessed. Perhaps the judiciary itself can introspect more on how to function better in a democracy where free speech is increasingly a preferred route to debate rights and wrongs.