Calcutta Notebook


The bizarre nature of the judgment releasing Jawaharlal Nehru University (JNU) Students Union President Kanhaiya Kumar on bail by the Delhi High Court compels analytical scrutiny.

The judgment releasing on interim bail begins with the words of the famous patriotic song from the film 'Upkaar'—"Mere Desh ki Dharti sona ugle, Ugle here moti mere desh ki dharti". Often beginnings are crucial indicators and offer clues as to the subtext of the body or text to follow.

Invariably, all the laws in the arena of "terrorism", "secession" and "naxalism" severely curtailing civil liberties like the Terrorism and Disruptive Activities (Prevention) Act, (TADA) and Prevention of Terrorism Act, 2002 (POTA), Unlawful Activities Prevention Act (UAPA) or the Armed Forces (Special Powers) Act (AFSPA) have been held to be constitutional and valid by courts. The extreme prejudice caused by the mere levelling of allegations of sedition, referred to by Gandhiji in his trial for sedition in 1922 as "the prince among the political sections of the IPC designed to suppress the liberty of the citizen", ensures rejection of the application for release on bail by courts.

In fact, paragraph 1 of the Kanhaiya bail order comprises half a dozen lines of the song like 'Rang laal hai Lal Bahadur se, Rang bana basanti Bhagat Singh...desh ki dharti' and offers pointers to the probable under the surface processes at play which on rare occasions come through in the written texts of judgments. In the absence of the availability of the free association of judges, at best, speculations can be offered as to the intra-psychic processes at play. The positive feelings of individual judges towards their mother and motherland come into play and could get mobiIsed in trying cases of 'sedition' and 'terrorism' as well as in the consideration of the constitutional validity of the legislation. The material produced in the proceedings to justify the law like instances of bomb blasts and attacks could arouse feelings of anxiety and distress with regard to inimical forces waiting to pounce and violate the mother. This in turn may conflate with dismembering and the breakup of the motherland into fragments. The trauma of the partition of India and the formation of Pakistan lends special potency to these anxieties.

The paragraph 30 of the Kanhaiya bail order refers to seven slogans which are put down in capitals for emphasis in the judgment. The contents of the slogans put down in the judgment seem to offer some substantiation of the speculations offered as to the dynamics at play. Thus one has "BANDOOK Kl DUM PE LENGE AAZADI" and "BHARAT TERE TUKKDE HONGE- INSHAALLAHA INSHAAILAHA" which directly evoke and feed into anxieties about dismemberment of parts of Bharat Mata.

Anxieties are suppressed into the unconscious as they are distressful and seem to need a degree of distortion to surface in the conscious. The judgment categorises the JNU 9th February meeting as an 'infection' and goes on to observe that: " 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." Thus one finds reflected in amputation of limb the anxiety of dismemberment of the 'nation'. Simultaneously, the otherside of the loving mother is the 'castrating-amputating' mother in the psychoanalytical framework.

The vague inimical forces waiting to pounce get reified in the stereotype of the bloodthirsty bearded AK-47 toting "terrorist" out to destroy. Afzal Guru who attacked Parliament and Maqbool Bhat ambushed police and the slogan put down in the judgment 'AFZAL GURU MAQBOOL BHATT JINDABAD' seems to directly feed into the individual's feelings of the dreaded attacker being raised to martyrdom dethroning India's brave boys. Childhood fantasies of protecting mother against the bad father may mesh in with those of the macho soldier and brave patriot son defending the Mother Nation. In the context of the fundamental rights to freedom of speech and expression the judgment points out that the freedom is enjoyed because armed forces guard the country's frontiers and observes that: "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".

The plethora of feelings which may get provoked impact fair, balanced and rational application of mind with regard to the validity as well as the working of laws dealing with subjects like 'sedition', 'terrorism', 'secession' and 'naxalism'. One finds love for mother and motherland, anxiety of partition, the inimical attacking 'terrorists', the brave son protecting mother/motherland and the amputating mother all playing out in the Kanhaiya bail judgment.

Vol. 48, No. 39, Apr 3 - 9, 2016