Factual Matrix
Kanhaiya Kumar, the President of the Students Union of the Jawaharlal Nehru University (JNU) in Delhi, India was arrested on charges of sedition for participating in an event marking the third anniversary of the death of Afzal Guru who was awarded death penalty and executed on 9th February 2013. Guru was convicted as a conspirator in the attack on the Indian Parliament in 2001. This year too like the past anniversaries of his death, speakers at the function termed Guru’s execution as ‘judicial murder’ and hailed him as a martyr. This time round the police arrested Kanhaiya Kumar in February under the serious charge of sedition. After being in jail for a little over two weeks the Delhi High Court released Kumar on interim bail.
Background
In India, 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 levelling of the charge of sedition causes extreme prejudice making it difficult to be released from incarceration. Gandhiji in his trial for sedition by the British in 1922 referred to sedition as “the prince among the political sections of the IPC designed to suppress the liberty of the citizen”.
High Court judgment and the psychoanalytic frame
The judgment of the High Court illustrates a number of unconscious factors at play which have formed the basis of workshops with judges on ‘Minimizing the Impact of Biases, Prejudices and Stereotypes on the Judicial Decision Making Process’ held at the Delhi Judicial Academy, Karnataka Judicial Academy, Bengaluru and the National Judicial Academy at Bhopal, the capital of the State of Madhya Pradesh .
Akin to the opening sentence by the client in a psychotherapy session, often beginnings are crucial indicators and offer clues as to the subtext of the body or text to follow. The judgment releasing Kanhaiya Kumar on interim bail begins with the words of the famous patriotic song from the Hindi film ‘Upkaar’ which thrums our heart strings “Mere Desh ki Dharti sona ugle,Ugle here moti mere desh ki dharti” (trans. ‘The earth of my country is gold and spews forth diamonds and pearls’).
In fact, in a move rather unusual for a legal judgment paragraph 1 of the Kanhaiya bail order is comprised solely of half a dozen lines of the film song ‘Rang laal hai Lal Bahadur se, Rang bana basanti Bhagat Singh…desh ki dharti ’ (trans. ‘Colour Red from Lal Bahadur (the reference is to the second Prime Minister of India ‘Lal’ meaning Red), Colour Saffron from Bhagat Singh (martyr executed by the British in 1931) 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 mobilized 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.
Playing out of unconscious factors
As we move on we find that paragraph thirty of the Kanhaiya bail judgment 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 we have the slogans in capitals in the judgment: “BANDOOK KI DUM PE LENGE AAZADI” (trans. ‘We will take independence at the point of a gun’) and “BHARAT TERE TUKKDE HONGE– INSHAALLAHA INSHAALLAHA” (trans. ‘India you will be broken up into pieces, Allah willing Allah willing’) which directly evoke and feed into anxieties about dismemberment of parts of Bharat Mata (trans. ‘Mother Bharat’, Bharat being another name for India).
Anxieties are suppressed into the unconscious as they are distressing and seem to need a degree of distortion to surface in the conscious. The judgment categorizes 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 we find reflected in amputation of a limb the anxiety of dismemberment of the ‘nation’. Simultaneously, we see the other side of the loving mother- the wrathful ‘castrating’ mother ready to ‘amputate’ the infected gangrenous son in the judgment. Shukla (2016) observes “In India at the other end of the spectrum of the nurturing milk mother is the blood thirsty Goddess-Mother Kali with a foot on the prostrate corpse-like body of her consort Shiva” (p. 2).
The vague inimical forces waiting to pounce get reified in the stereotype of the bloodthirsty bearded AK‐47 toting “terrorist” out to destroy the Motherland. Afzal Guru who attacked ‘our’ Parliament and Maqbool Bhat, co-founder of the Jammu and Kashmir Liberation Front ambushed police in 1966 and was executed in 1984 at Tihar Jail, Delhi. Baccheta (2004) writes “As Andrew Parker et al. have amply demonstrated, in so many nationalisms across the globe the territorial component is associated with, or symbolised as, a chaste female body, often a mother or motherly figure. The notion of her potential violation by foreign invaders is also widespread” (p.27). The slogan put down in the judgment in capitals – ‘AFZAL GURU MAQBOOL BHATT JINDABAD’ (trans. ‘Long Live Afzal Guru, Maqbool Bhat’) seems to directly feed into the individuals feelings of the dreaded attacker being raised to martyrdom dethroning our 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. Bacchetta referring to the depiction of the Motherland by Rashtriya Swayamsevak Sangh (RSS) the Hindu right wing organisation observes “The Sangh presents her as a chaste mother, victimised (by Muslims) and declares that she needs the protection of her “virile” sons, the “Men with the capital M” . Unlike Kali, Bharatmata is left with no warrior qualities of her own” (ibid).
In the context of the fundamental rights to freedom of speech and expression the Kanhaiya high court judgment observes that the freedom is enjoyed because armed forces guard our frontiers, referring to Indian and Pakistani armies poised across each other at the international Siachen glacier border 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”.
Endnote
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’. We find love for mother and motherland, anxiety of partition, the inimical attacking ‘terrorists’ , the brave son protecting mother/motherland and the amputating-castrating mother all playing out in the Kanhaiya bail judgment.
Each of us imbibes by osmosis like process the attitudes, stereotypes, biases and prejudices of the caste, community, class, religion, nation, gender in which we may be born and/or are raised. However, the actions, behaviour and decisions of persons placed in judicial positions affect in a vital way the lives of individuals as well as impact society. As a facet of impartiality crucial to the judicial function, a special responsibility rests on such individuals to try and reduce the impact of personal biases, prejudices and stereotypes.
References
Baccheta, P. 2004. Gender in the Hindu Nation, RSS women as ideologues. Women Unlimited (an associate of Kali for Women), New Delhi.
Gowalkar, M.S. 1980 (ed). Bunch of Thoughts. Jagarana Prakashan, Bangalore.
Parker, A. et al (ed). 1992. Nationalisms and Sexualities. Routledge, New York.
Shukla R. 2011. Judging Sedition: The Case of the Good Doctor. Int. J. Appl. Psychoanal. Studies 8(4): 346–352 (2011).
Shukla, R. 2016. Beef, Murderous Rage, Public Lynching: A Look under the Surface. Int. J. Appl. Psychoanal. Studies (2016). DOI: 10.1002/aps.
