An Open Letter to India’s Judges On What Counts as ‘Anti-National’

In response to the bail order granting bail to JNU Student Union president Kanhaiya Kumar, Indira Jaising reminds us that there can be no anticipatory restraint on free speech

JNU student leader Kanhaiya Kumar with supporters on the university campus after he was released from jail on bail Thursday evening. Credit: Shome Basu

JNU student leader Kanhaiya Kumar with supporters on the university campus after he was released from jail on bail Thursday evening. Credit: Shome Basu

Dear Judges,

The time has come for us to remind ourselves what nationalism is, and what constitutes ‘anti-national’ activity. Surely, as judges, you all know that there is no such offence as an ‘anti-national’ act in any of the statute books in India.

No doubt our forces protect our borders, but think, why do we face external aggression on our borders in the first place? Why have we not succeeded after 68 years of independence in making peace with our neighbours who, until 1947, were part of one nation? A generation of us are still around, including myself, who belong to the other side of the border, and all that we want is peace and nothing but peace. What have you done to guarantee us this peace?

Defining freedom

We don’t want our soldiers coming home in coffins in the name of nationalism. We want peace and justice for all, including our neighbours.

So, notwithstanding the onerous, oppressive and unconstitutional undertaking demanded from Kanhaiya, it was all worth it to listen to that one speech and feel that all is still well with the nation, and we are still safe in the hands of the young. We have succeeded, after all, in passing on a legacy which was created, built, and forged during the non-violent freedom movement. We have succeeded in defending freedom zealously in the courts.

The task of the judiciary

But to come back to what is anti-national, let us look at the constitution once again.

Judges take an oath to bear true faith and allegiance to the constitution, and to protect the sovereignty and integrity of India. But look at Article 352, the power to declare an emergency, and it will give you the clue as to what threatens the integrity of the nation.  It is external aggression, and the remedy for that is with the executive, not the judiciary.

The job of the judiciary is not to allow the law to be drowned by the clash of arms, but to keep the flame of justice and liberty alive. The executive did its job, you do yours while granting bail. Leave the anti-national debate to the government of the day, leave the debate to embedded journalists. It is not without reason that Article 352 refers to external aggression; internal sovereignty belongs to us – We the People.

History has not forgiven the judges who wrote the ADM Jabalpur majority judgment in 1976 since it robbed the people of their liberty. Remember, majoritarian is an illusion. It was the same NDA (then known as Janata Party) government that undid the judgment and ensured that Article 21 can never ever be suspended. Bail is in the realm of Article 21 after all. To those of you who grant bail, and before a song from Bollywood becomes our national anthem, read the dissenting judgment of the late Justice H. R. Khanna. Then decide what is anti-national.

In living memory, those who were in prison during the emergency  are today ruling the nation. If they were not asked to comply with onerous conditions for liberty “actively or passively”, then why such a demand on Kanhaiya today? There can be no anticipatory restraint on free speech.

Truth and justice

Tell us, while delivering his speech yesterday on campus, was Kanhaiya national or anti-national? We the people of India want peace and justice. There is no justice without access to justice. There is no justice without human rights defenders being protected from attack, whether in the name of foreign funding, or in the name of nationalism, or by any other name.

While arguing a case in the Supreme Court recently, I had occasion to tell the judges, “Your tragedy is you enter a court from the back door, you don’t see what is written over your heads. I enter from the front door, the first thing I see every morning is Satyameva Jayate.”  

That one sentence would be sufficient to help you in interpreting the law which is given in your hands for safe custody. And what is more, the Supreme Court has something more than truth written above: Yato dharmas tato jaya.

The judges of the Supreme Court of India may figure out this one for yourselves.

Indira Jaising is a senior lawyer, a co-founder of Lawyers Collective, and the former Additional Solicitor General of India.

  • Sujad Syed

    Absolutely right, madam! You are easily one of India’s best activist-lawyers & I, being from the Bar, salute you!

  • Swaraj

    Well said Ms Jaisingh. I am still waiting for all the Judicial reforms. Hope somebody can show a mirror to all these judges.

  • DA

    Just as a reminder, the Indian constitution enables the legislature to impose certain restrictions on free speech under following heads:

    I. security of the State,

    II. friendly relations with foreign States,

    III. public order,

    IV. decency and morality,

    V. contempt of court,

    VI. defamation,

    VII. incitement to an offence, and

    VIII. sovereignty and integrity of India

    • Biswarup

      Just go through the various restrictions (described later in the constitution ) that have been imposed on these restriction themselves so that they can not be abused.

    • Bipin

      The colonial legacy has to be abolished, these are the colonial laws, legal processes which enslave us and defraud our freedom allowing state repression , which violates the fundamental rights and the constitution. The role of the judiciary to uphold the fundamental rights of the citizen, democracy, and not allow their violations otherwise it looses its credibility and raison d’etre.

  • Asheesh Patel

    You want peace with neighbours like pakistan and china .
    1.first let talk about pakistan they have home grown terrorists and a military ruled state which hates india because they want kasmir but let suppose india give kasmir to pak then you certainly tell me that furthur attacks will not happen i can tell that no. because they
    have not problem with kashmir but they hate india .why i dont know .so be logical dont be political and be opportunist in nation security issue.atleast have some commonsense.this is not bajrangi bhaizan .

    2. Let’s talk about china what do you think that india never tried to settle down that issue but they dont accept border line.second is Tibet issue what china did all of us know .so if you are a lawyer dont do stupid things have common sense and courage to analyse things in reality .

  • Bipin

    How long we perpetuate European supremacy even in judicial process, it has failed to deliver justice, and has been designed to protect the privileges of the aristocracy, which came into existence from slave trade and piracy. Ignoring our own juridical heritage, state craft and aping the West as advanced model for the world is a reflection of the intellectual bankruptcy and mental slavery,a colonial legacy.

  • Anjan Basu

    Marvellously well-written! The only I problem I see here is this: will this sink in where it should? Please recall what Kanhaiya Kumar happened to mention in his ‘comeback speech’ the other day. He talked of people who are literate, but who refuse to be educated nevertheless. I hope this is not contempt of court, but, like most other professions, the legal profession also requires bare literacy and not much else. There are fabulously enlightened practitioners of the law — and Indira Jaisingh is surely one of them– but they are very hard to come by. Judges need be literate, and it may not be fair to expect most of them to be truly educated.
    Anjan Basu

  • Kiran

    So you are basically holding the court in contempt?