Delhi High Court’s Justice Pratibha Rani, while granting interim bail on March 2 to jailed JNU student union president Kanhaiya Kumar, opens her order by extolling the virtues of nationalism with a stanza from the patriotic Mere Desh ki Dharti song from the Manoj Kumar-starrer Upkaar . The order goes on to agonise about why peace is eluding “the prestigious Jawaharlal Nehru University”, with questions directed at the students, faculty and administration.

These were not questions of law on Kumar’s right to bail, or on the charge of sedition under section 124-A of the Indian Penal Code, slapped by the Delhi police on the student leader and four others from JNU. The court’s observations were more in line with the debates artificially being drummed up on ‘ultra-nationalist’ news channels.

The order does not question why the Delhi police’s FIR was lodged a day after a cultural event (rather non-event) of February 9 was cancelled, as well the clash between its organisers and another group led by the ABVP (not named anywhere in the FIR or bail order). Nor does it question why the FIR was based entirely on uncorroborated Zee TV footage aired the next day. The order notes that the “situation was brought under control by 8.30 pm to 9.00 pm” without giving credit to Kumar for his role as a peacemaker who averted the clash.

On pages 12 and 13 of the bail order, there are eight photographs of students holding placards and raising slogans. Pages 14 and 15 show the invitation for the (cancelled) programme ‘The Country without a Post Office – Against the Brahmanical Collective Conscience/Against the Judicial Killing of Afzal Guru & Maqbool Bhat’. Nothing seditious here, nor can Kumar be seen in any of those pages. Next, the order refers to slogans such as “ desh ki barbadi, Pakistan zindabad ” without taking note that by March 2, when the order was passed, there was sufficient forensic evidence produced that the videos in question were doctored. The order pins the main responsibility of the events that unfolded on February 9 on Kumar.

The High Court order then strays into extra-judicial territory by playing the role of an arbiter on nationalism with a capital N. Justice Rani’s order pits the deaths of soldiers at the Siachen Glacier against the students’ constitutional rights of freedom of speech and association. She wonders whether Kanhaiya’s February 11 speech “contains his original thoughts and faith in the Constitution, and nationalist approach, or the speech was a safety gear for himself”. The order thus places the vague, undefined and non-legal notion of ‘nationalism’ on an equal footing with faith in the Constitution. It further holds that an accused has to somehow prove that if her or his avowed belief in the Constitution has to be original, and not a legal defence.

The icy-cold logic of Justice Rani order is that Constitutional freedoms can be sacrificed at the altar of paying homage to soldiers who “are there at the battlefield situated at the highest altitude of the world where even oxygen is so scarce that those who are shouting anti-national slogans… may not be able to withstand those conditions for an hour”. This skewed logic expends itself in paragraph 48, where Justice Rani likens student’s rights in JNU to an infection that “sometime may require surgical intervention also”, and that if the infection results in gangrene, “amputation is the only treatment”. These views seem clearly on par with the current political discourse that extols beheadings, chopping off of limbs, and cutting of tongues.

The entire sordid saga of the JNU sedition case, right from the doctored video footage, to pointed calls from BJP leaders for closure of JNU to Kumar’s brutal assault by a thuggish mob of lawyers at the Patiala courts, reeks of a well-executed conspiracy. The mass hysteria that is being drummed up today around JNU, as well as Kumar and his jailed colleagues, is reminiscent of the Dreyfuss affair that gripped France in the late 19th century. Alfred Dreyfus was convicted of treason in 1894 in a political scandal that divided France. It took him 12 years of public and courtroom trial before getting exonerated. Today, the Dreyfus trial is universally recognised as a symbol of miscarriage of justice based on press (read television in times now), and public opinion.

Exactly a year ago, on March 13, the Delhi High Court gave a landmark ruling, which questioned the false notions of ‘national interest’ and ‘anti-nationalism’. While quashing a lookout notice issued against Greenpeace activist Priya Pillai by the newly sworn in BJP government, Justice Rajiv Shakdher held “among the varied freedoms conferred on an individual (i.e. the citizen), is the right of free speech and expression, which necessarily includes the right to criticise and dissent. Criticism, by an individual, may not be palatable; even so, it cannot be muzzled. Many civil right activists believe that they have the right, as citizens, to bring to the notice of the State the incongruity in the developmental policies of the State. The State may not accept the views of the civil right activists, but that by itself, cannot be a good enough reason to do away with dissent.”

Rather than relying on Justice Shakdher’s erudite precedent, and that of several others of the Supreme Court on sedition, the March 2 ruling of the Delhi HC chose a deviant route based on nationalism without even defining the term. Kanhaiya Kumar’s electrifying speech on his release on March 3 to hundreds of JNU students was an open and welcome call for azadi (freedom) from those who wish to imprison the nation itself in their narrow template on nationalism.

The writer is a practicing lawyer of the Bombay High Court