Kanhaiya Kumar, Nationalism and the curious case of our Constitutional Courts

Two years ago, I had penned a piece with a similar title on the role of the country’s top law officers in defending the UPA government. In the piece, I had delved into the often desperate efforts made by the law officers to defend a government which was rocked by one scam after another, eventually leading to the unceremonious exit of one of the Additional Solicitor Generals..Two years down the line and I find myself going on a similar rant – this time, however, against the Bench..Supreme Court, Article 144 and the Delhi Police: An opportunity lost?.Violence in the district courts of Delhi, and elsewhere for that matter, is not uncommon. But the violence that erupted at Patiala House on February 15 and February 17 had a different face to it..It was a case of a large group of lawyers who were given a free hand to go on a rampage against anything and everything they felt to be against their self-proclaimed righteousness, and in the process, hold the court to ransom. That anyone with a pen or camera was singled out as a “presstitute” evidenced the mindlessness of the attack..But this is not where the matter ends..In fact, it is the treatment of the incident by the Supreme Court which, in all frankness, leaves a lot to be desired. After the first round of violence in a court barely a kilometre away, the Supreme Court of India was seized of a PIL for adequate security to persons inside the court complex during Kanhaiya Kumar’s trial. The stretched out hearing that occurred on February 17 eventually led to a clear, unambigious order at 1 in the afternoon..The Delhi Police was instructed to take “appropriate measures” to ensure that law and order is maintained. Below are the excerpts:.“We are also informed that there is a possibility of a large gathering of various groups including the students and political parties at the Court when the matter is taken up. We are inclined to agree with such anticipation and we, therefore, deem it appropriate to direct the Commissioner of Police, Delhi to take such appropriate measures as he may deem fit to maintain the law and order situation in accordance with law.”.However, what happened subsequently, something that the Supreme Court has omitted to acknowledge, was a clear case of a police force refusing to obey the court’s orders. This needs serious introspection..Before I go into what ought to have been done by the Supreme Court, it would be appropriate to quote Article 144 of the Constitution..“Civil and judicial authorities to act in aid of the Supreme Court: All authorities, civil and judicial, in the territory of India shall act in aid of the Supreme Court.”.Article 144 assumes significance in that it enjoins all civil and judicial authorities in the territory of India to act in aid of the Supreme Court of India. It, thus, places a Constitutional obligation on all other courts and civil authorities to carry out the orders of the Supreme Court of India. It places the Supreme Court of India on the highest pedestal as far as the performance of duties by any civil or judicial authority is concerned..In other words, and it is vital that there be no doubt here, a direction/order from the Supreme Court should be of the highest predilection and any conflicting direction issued by any other institution or individual will be superseded by an order emanating from the Supreme Court..Reading Article 144 in conjunction with the order of the Supreme Court, what emerges is that there was a duty cast on the Delhi police commissioner to “take such appropriate measures as he may deem fit to maintain the law and order situation in accordance with law.”.By failing to act, the Delhi police has clearly brought itself under scanner. That is precisely what Senior Advocate Dushyant Dave wanted to convey when he said the following before the Supreme Court:.“I have told the DCP that you are under the orders from the Supreme Court and you shall not take orders from anyone else. But I fear this police cannot maintain law and order.”.The failure of the Supreme Court to get its directions implemented has not left a worthy precedent. In fact, it is rumoured that the manner in which the Supreme Court has handled the Patiala House issue has not gone down well with many judges in the higher judiciary..Just as notice for contempt has been issued to the lawyers accused of indulging in violence, the court should have summoned the Police commissioner and sought an explanation. The report submitted by the Delhi police explaining the reasons for failure to control the violence only reaffirms this stand of mine that the Court should initiate contempt action against the Delhi police; For if this is allowed to set a precedent, the implications for the country’s courts could be grave..It is not too late..Delhi High Court: Delivering judgments or lumpen rhetoric?.The order delivered on March 2 by the Delhi High Court in the bail petition filed by Kanhaiya Kumar can be summed up in one word – bizarre. The order begins by quoting a Hindi film song from the 1960s before proceeding to hurl a rather generous dose of lessons on patriotism mixed with a tenuous link between the armed forces and the freedom of expression..In a seemingly fervent appeal to instill a deep sense of patriotism, the court seems to have forgotten its primary task – to decide the bail application on facts and law..The decision in a bail petition is based on a number of factors that have been enumerated many a time by different High Courts and the Supreme Court. These include the existence of a prima facie case, gravity of the offence, severity of punishment, possibility of the accused absconding, chances of the accused tampering with witnesses, antecedents of the accused etc..Thus, in Chamanlal v. State of UP, the bail granted to the accused by the High Court was cancelled by the Supreme Court on the ground of non-application of mind by the High Court. The Court also categorically indicated the factors to be considered and indicated in an order granting bail. The Delhi High Court itself has reiterated the factors for grant or rejection of bail as in the case of Court On Its Own Motion v. Central Bureau Of Investigation wherein it held that “principles that govern the grant of refusal of bail in other kinds of cases and shall be followed in letter and spirit” before proceeding to enumerate those principles..Kanhaiya Kumar should have been granted or denied bail after ascertaining the facts and weighing it against the aforementioned factors. Instead, the Court has waxed eloquent about the sufferings of our armed forces and how the petitioner and other “such persons”, who belong to an “intellectual class” ought to have realised that the freedom to raise such slogans in a safe environment was 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.”.But perhaps the most disturbing aspect of the judgment is the likening of recent events to an infection that needs to be cured before it becomes an epidemic..This was no empty rhetoric – it was this line of thinking that eventually led the court to “provide a conservative method of treatment” by releasing the accused on interim bail for six months. If the consideration for grant of bail are factors outside of the established principles of criminal law, then it is high time that the judiciary indulges in a bit of introspection..As Constitutional courts of the country, the Supreme Court and High Courts also have a duty to ensure that the faith of the public in judiciary remains intact. Justice must not only be done but also seem to be done. The nation is watching.