After a 20-day ordeal in jail, JNUSU president Kanhaiya Kumar was granted bail for six months on Wednesday by the Delhi High Court bench of Justice Pratibha Rani with strictures that he should not engage in any activities amounting to "anti-national activity", leaving the scope of the case broad and wide enough for interpretation.
He was further asked to furnish a personal bail bond of Rs 10,000, with a guarantee provided by a JNU faculty memeber about his activities. "Apart from that, as president of the JNUSU, he will make all efforts within his power to control anti-national activities on the campus” said the court, keeping ball in his court for any activities which may take place in the campus.
Kumar was arrested on February 12 on charges of sedition alleging he raised “anti-national” slogans on the JNU campus on February 9, which he denied from the start and said he was intervening two groups which were clashing at the event.
Here is the full text of the judgement given by Delhi High Court Judge Pratibha Rani:
"IN THE HIGH COURT OF DELHI AT NEW DELHI
KANHAIYA KUMAR ….. Petitioner Through : Mr.Kapil Sibal, Senior Advocate, Ms.Rebecca M.John, Senior Advocate with Mr.Sushil Bajaj, Mr.Bankim Kulshreshtha, Ms.Vrinda Grover, Mr.Vishal Gosain, Mr.Victor Dhissa, Mr.Bajinder, Ms.Tarannum Cheema and Mr.Harsh Bora, Advocates.
STATE OF NCT OF DELHI ….. Respondent Through : Mr.Tushar Mehta, ASG, Mr.Sanjay Jain, ASG, Mr.Chetan Sharma, Senior Advocate with Mr.Anil Soni, Special PP, Mr.Shailendra Babbar, Special PP, Mr.Mukesh Gupta, Mr.Amit Gupta, Mr.Rishabh Juneja, Mr.Rajat Nair, Mr.Manan Popli, Mr.Aadit Khorana, Ms.Ruchi Jain, Mr.Sarfraz Ahmed, Advocate for the State. Mr.Rahul Mehra, Standing Counsel (Criminal) for Govt. of NCT of Delhi with Ms.Richa Kapoor, ASC, Mr.Sanjay Lao, ASC, Mr.Rajesh Mahajan, ASC and Mr.Aditya Swarup Aggarwal, Advocate.
PRATIBHA RANI, J. (Oral)
‘Rang hara Hari Singh Nalve se, Rang laal hai Lal Bahadur se, Rang bana basanti Bhagat Singh, Rang aman ka veer Jawahar se. Mere Desh ki Dharti sona ugle
Ugle here moti mere desh ki dharti’
This patriotic song from ‘Upkaar’ by Lyricist Indeevar symbolizes individual characteristics representing by different colours and love for motherland.
Spring season is a time when nature becomes green and flower blooms in all colours. This spring why the colour of peace is eluding the prestigious Jawaharlal Nehru University (JNU) situated in the heart of Delhi needs to be answered by its students, faculty members and those managing the affairs of this national university.
On 9th February, 2016 a programme was proposed to be organised under the title ‘Poetry Reading – The Country Without A Post Office’ at Sabarmati Dhaba, Jawaharlal Nehru University. Since the title of the programme did not suggest anything objectionable, permission was granted. When the posters of the said programme revealed the topic of the programme to be organized that evening, the authorities at JNU acted swiftly by cancelling the permission and communicating the same to the organizers as well the security staff. What followed thereafter has been recorded in FIR No.110/2016 under Section 124-A/34 IPC at PS Vasant Kunj North. The status report shows that now the case is under investigation for the offence punishable under Sections 124-A/120-B/34/147/149 IPC.
In the writ petition bearing W.P.(Crl.) No.29/2016 the Supreme Court on 19.02.2016 ordered for transmitting the record of bail petition of petitioner Kanhaiya Kumar to High Court of Delhi for hearing by passing the following order:-
‘After hearing learned counsel for the petitioner, learned Solicitor General and the submissions of other members of the Bar (who volunteered to make submissions in this matter), we are of the opinion that the present petition be transmitted to the Delhi High Court for consideration of the prayer for bail of accused Kanhaiya Kumar in FIR No.110/2016 filed at PS Vasant Kunj, New Delhi. We also grant liberty to the petitioner to file such further petitions or other material which he deems appropriate to bring the application in tune with the requirement of law. We permit the petitioner to move the Delhi High Court today. We request the Delhi High Court to consider the application expeditiously and pass appropriate orders in accordance with law. Having regard to the background in which the instant application came to be filed, certain apprehensions were expressed at the Bar on behalf of the petitioner and other learned members of the Bar that some special precautions are required to be taken which the proceedings are taken by the Delhi High Court to ensure the safety of the learned counsel appearing for the petitioner and also the journalists.
Having regard to the history of the case, we deem it appropriate to request the High Court to take such appropriate steps at it deems fit and proper to ensure the peaceful conduct of the proceedings. We also place on record that the learned Solicitor General appearing for the Union of India as well as the Commissioner of Police, Delhi assure that all necessary precautions will be taken in consultation with the Registrar India. He has also to be reminded that under Part-IV under Article 51A of Constitution of India fundamental duties of every citizen have been specified alongwith the fact that rights and duties are two sides of the same coin.
The petitioner belongs to an intellectual class pursuing Ph.d. from International School of Studies, Jawaharlal Nehru University, which is considered as hub of intellectuals. He may have any political affiliation or ideology. He has every right to pursue that but it can be only within the framework of our Constitution. India is a living example of unity in diversity. Freedom of expression enjoyed by every citizen can be subjected to reasonable restrictions under Article 19(2) of our Constitution. The feelings or the protest reflected in the slogans needs introspection by the student community whose photographs are available on record holding posters carrying photographs of Afzal Guru and Maqbool Bhatt.
The faculty of JNU also has to play its role in guiding them to the right path so that they can contribute to the growth of the nation and to achieve the object and vision for which Jawaharlal Nehru University was established.
The reason behind anti-national views in the mind of students who raised slogans on the death anniversary of Afzal Guru, who was convicted for attack on our Parliament, which led to this situation have not only to be found by them but remedial steps are also required to be taken in this regard by those managing the affairs of the JNU so that there is no recurrence of such incident.
The investigation in this case is at nascent stage. The thoughts reflected in the slogans raised by some of the students of JNU who organized and participated in that programme cannot be claimed to be protected as fundamental right to freedom of speech and expression. 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.
Whenever some infection is spread in a limb, effort is made 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. However, if the infection results in infecting the limb to the extent that it becomes gangrene, amputation is the only treatment.
During the period spent by the petitioner in judicial custody, he might have introspected about the events that had taken place. To enable him to remain in the main stream, at present I am inclined to provide conservative method of treatment.
Taking into consideration the facts and circumstances, I am inclined to release the petitioner on interim bail for a period of six months. Once the decision of releasing the petitioner on interim bail is taken, now the question comes as to what should be the amount for monetary security. In his speech dated 11th February, 2016 the petitioner has claimed that his mother works as Anganbadi worker and earns ₹3000/- per month on which the entire family survives. If this aspect is considered then the amount to be required to be filled in the personal bond and surety bond cannot be so high as to put him in a position that he cannot avail the interim bail.
The time is ripe that while giving some concession to the petitioner on monetary aspect for purpose of furnishing the bond, he can be required 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. Apart from that, as President of JNU Students Union, he will make all efforts within his power to control anti-national activities in the campus. His surety should also be either a member of the Faculty or a person related to the petitioner in a manner that he can exercise control on the petitioner not only with respect to appearance before the Court but also to ensure that his thoughts and energy are channelized in a constructive manner.
I may record here that the affidavit filed alongwith this petition is by Professor Himanshu as parokar, Resident Warden 3, Jhelum Hostel, Jawaharlal Nehru University, Delhi. The petitioner is granted interim bail for a period of six months on his furnishing personal bond in the sum of ₹10,000/- and an undertaking on above lines, with one surety, who should preferably be a Faculty member of Jawaharlal Nehru University, to the satisfaction of learned concerned Metropolitan Magistrate/Link Metropolitan Magistrate, with the condition that he shall not leave the country without the permission of the Court. The surety shall also furnish an undertaking on the lines similar to that of the petitioner.
The writ petition stands allowed in above terms.
The observations made above are only for the purpose of deciding the bail application and shall not be considered as an expression on merits.
A copy of this order be sent to the concerned Jail Superintendent for information and compliance. Copy of the order be given dasti to the parties under the signature of Court Master.
PRATIBHA RANI, J. March 02, 2016."