കനയ്യ കുമാറിന്റെ ജാമ്യം - ചില ഓർമ്മപ്പെടുത്തലുകൾ

ഡൽഹി ജവഹർലാൽ നെഹ്രു യൂണിവേഴ്സിറ്റിയിൽ 09/02/2016നു നടന്ന മുഹമ്മദ് അഫസൽ അനുസ്മരണവും തുടർന്നുണ്ടായ നടപടികളും ഏറെ വിവാദമായതാണല്ലൊ. ഈ കേസുമായി ബന്ധപ്പെട്ട് അറസ്റ്റിൽ ആയ ജവഹർലാൽ നെഹ്രു യൂണിവേഴ്സിസ്റ്റി സ്റ്റുഡന്റ്സ് യൂണിയൻ പ്രസിഡന്റ് കനയ്യകുമാറിനു ഇടക്കാല ജാമ്യം അനുവദിച്ചുകൊണ്ട് ഡൽഹി ഹൈക്കോടതി പുറപ്പെടുവിച്ച ഉത്തരവ് ഇവിടെ വായിക്കാം. ഈ ഉത്തരവിലെ 38 മുതലുള്ള ഖണ്ഡികകൾ ചുവടെ ചേർക്കുന്നു. ഈ വിധി തീർച്ചയായും ഒരു ഓർമ്മപ്പെടുത്തൽ ആണ് ഒരു പൗരനു ഭരണഘടന ഉറപ്പ് നൽകുന്ന അവകാശങ്ങളേയും അതോടൊപ്പം ഭരണഘടനയോടും രാജ്യത്തോടും ഒരു പൗരനു ഉണ്ടായിരിക്കേണ്ട കടമകളേയും കുറിച്ചുള്ള ഓർമ്മപ്പെടുത്തൽ. ആ രീതിയിൽ ഈ വിധിയെ നോക്കിക്കാണാനാണ് ഞാൻ ഇഷ്ടപ്പെടുന്നത്. വിധിയുടെ 38 മുതലുള്ള ഖണ്ഡികകൾ:-

38.  Today I find myself standing on a crossroad. The FIR in question has been registered only on 11th February, 2016. Investigation is at the initial stage. The petitioner is the President of Jawaharlal Nehru University Students Union. His presence at the spot on 9th February, 2016 has been claimed on the basis of raw video footing of that day i.e. 9th February, 2016.The petitioner at present is in judicial custody. 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.

39. As President of Jawaharlal Nehru University Students Union, the petitioner was expected to be responsible and accountable for any antinational event organised in the campus. Freedom of speech guaranteed to the citizens of this country under the Constitution of India has enough room for every citizen to follow his own ideology or political affiliation within the framework of our Constitution. 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 in the world i.e. Siachen Glacier or Rann of Kutch.

40. It is a case of raising anti-national slogans which do have the effect of threatening national integrity. The averments made in para 14 of the writ petition is extracted as under :-

14. That the petitioner has committed no offence whatsoever,and the wild and baseless allegations being made against him are not only irresponsible and false, but have also caused serious harm to his reputation. As a responsible students’ union President, the petitioner has never sought to subvert the law.The petitioner is a proud citizen of India and has always affirmed his faith in the Constitution of India. The petitioner now seeks the protection of his life, liberty and rights as guaranteed under the Constitution of India. The utterances (speech or slogans) attributable to the petitioner, is not in violation of any law, or the Constitution of India, and as such the petitioner has committed no offence.’

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 close to their chest honoring their martyrdom, may not be even able to withstand those conditions for an hour even.

42. The kind of slogans raised may have demoralizing effect on the family of those martyrs who returned home in coffin draped in tricolor.

43. The petitioner claims his right regarding freedom of speech and expression guaranteed in Part-III under Article 19(1)(a) of Constitution of 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 along with the fact that rights and duties are two sides of the same coin.

44. 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.

45. 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.

46. 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.

47. 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.

48. 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.

49. 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.

50. Taking into consideration the facts and circumstances, I am inclined to release the petitioner on interim bail for a period of six months.

51. 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.

52. 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.

53. I may record here that the affidavit filed along with this petition is by Professor Himanshu as parokar, Resident Warden 3, Jhelum Hostel, Jawaharlal Nehru University, Delhi.

54. 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.

55. The writ petition stands allowed in above terms.

56. The observations made above are only for the purpose of deciding the bail application and shall not be considered as an expression on merits.

57. 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,