Saturday, March 19, 2016

Long Armed Laws - Summoning Alien Accused Companies

Consider this. The police, after completing investigation, file a Final Report alleging that X, an Indian company, and its directors be summoned for offences under Section 420 IPC. It also alleges that Y, the American holding company of X, be summoned as a co-accused. The Indian company is a wholly-owned subsidiary of the foreign company. Today, can a Magistrate in India summon the foreign company by serving the summons on its wholly-owned Indian subsidiary? If you think this is an innocuous question, you're mistaken. These problems are coming to the fore as more companies are prosecuted for the various strict liability offences on the Indian statute book. The issue shot to prominence last year in the U.S.A., when a District Court upheld service of summons on the American wholly-owned subsidiary of a Chinese company, in a trial with counts of espionage [See, here, here and here].

The question: 'Summoning' Persons/Companies Abroad
States across the world contain something or the other on summoning corporations in their criminal procedure laws. The U.S.A. has Rule 4 of the Federal Rules of Criminal Procedure explaining this process. India has Section 63 of the Cr.P.C. which says that service may be effected on a corporation by either (i) serving it on the secretary, local manager or other principal officer of the corporation, or (ii) by letter sent by registered post, addressed to the chief officer of the corporation in India. Section 65 may also be attracted to serving summons on a company, for it applies when service cannot be effected as per the method under Section 63 (and Sections 62 and 64). The officer may affix one of the duplicates of the summons to some conspicuous part of the house or homestead in which the person summoned ordinarily resides.

Section 105 Cr.P.C. tells us what the Court must do whenever it desires to issue a summons/warrant for any person residing in any country/place outside India. The Court is required to send the summons to the authority in the foreign country notified by the Central Government in this behalf. This notification usually occurs through a Mutual Legal Assistance Treaty [MLAT] that India may enter into with a State. This authority, upon receiving the summons/warrant, is then responsible for its execution within its territory. Can it be argued that a foreign company is not in any country or place outside India if that company has a wholly-owned Indian subsidiary? Serving summons of the parent upon its subsidiaries and agents is permitted in civil proceedings in certain situations [Order V, Rules 12-14 Civil Procedure Code 1908]. If permitted in criminal cases, the Government can effect service on that Indian subsidiary for the foreign parent through Section 63 without having to resort to the rigmarole of Section 105 Cr.P.C. Since the latter is a cumbersome process involving two governments and many authorities, allowing service of summons in the ordinary course would undoubtedly hasten the legal proceedings.

Unearthing Rationale - Summons and Corporate Veil
To answer these questions, we need to understand the rationale behind 'summons'. To me, it serves at least two objectives. One: giving notice to the person of there being a set of allegations against her which is the basic premise of a fair trial. Two: through summons, a court assumes jurisdiction over the person/company and can thus ensure appearance of the accused. Service of summons creates a link between the person and Court; the presumption of knowledge so created allows a Court to take coercive steps to ensure participation in proceedings. Think about Proclaimed Offender proceedings under Section 82/83 Cr.P.C. - a Court only moves to that measure on the basis that an accused is knowingly evading the process of law. Along with these two objectives is the underlying difference between allegations in civil and criminal cases, which makes personal service of summons important rather than being always satisfied with a presumption of knowledge. Criminal liability is necessarily personal, only extraordinarily vicarious, and a trial and conviction entails stigma. Thus, only as a last resort are we permitted to derogate from having to make the accused personally aware, Remember, though, that knowledge can be deemed [the proclaimed offender example], and that today there are several strict liability offences which test the generalisations about criminal law.

If you agree with my perfunctory analysis, let us reconsider the initial question. Would the accused foreign parent company get personal notice of allegations upon service of summons to its co-accused Indian wholly-owned subsidiary? In arguing this, the Government seeks to pierce the veil of incorporation and suggest they are the same legal entity. This would in theory mean personal service is effected on the foreign parent by serving summons on the officers of the domestic subsidiary under Section 63 Cr.P.C. Taking this path is problematic. Piercing the corporate veil by its very definition would require appreciating evidence and facts; would it be proper for a Court to engage in that analysis at this primary stage of proceedings? Perhaps not. But allowing this analysis carries strong policy benefits, so even if summons are treated as served cannot the foreign company challenge that exercise of jurisdiction? On principle, one might say it is finely balanced. Looking at practice in the USA, it seems a different yardstick is applied while dealing with civil/tort liability where piercing for jurisdictional purposes is common, and criminal liability where it is not so. Importantly though, American Courts have not held piercing of corporate veil to be impermissible at this stage.

Consequences of Irregularly Exercising Jurisdiction
Assume in our case a Court issued summons to co-accused wholly-owned domestic subsidiary under Section 63 Cr.P.C. for the accused foreign parent as well, and found that service is properly effected. Today if the foreign company chooses to appear - either at the outset or after it is convicted - and raise a jurisdictional challenge, will it succeed?

The company would argue this piercing of corporate veil is improper at the outset for it relies upon an analysis of evidence. Such a technique would amount to subverting the clear process of law, as laid out in Section 105 Cr.P.C. The rationale behind that provision would be found in International Law. While International Law permits domestic statutes to have extraterritorial jurisdiction, it prohibits States from enforcing this jurisdiction extraterritorially. For example: International Law permits the IPC to criminalise offences committed abroad, and the IPC does so through Section 4. While the IPC does then apply to a murder committed by an Indian in California, this does not enable the CBI/police to fly out to California and arrest the accused. Summons are effected through police officers, and thus are no different. The company would argue that these limits are recognised in the Cr.P.C. beyond Section 105 as well. Section 77 Cr.P.C. provides a warrant of arrest may be executed at any place in India. Similarly, Section 60 Cr.P.C. ordains an officer may pursue and arrest persons in any place in India. The extraterritorial enforcement of laws is barred for good reasons too. Imagine a situation where every state's laws apply globally, and every state can enforce these laws globally through its officers. Persons across the world would be subject to multiple sets of laws while having the remotest links to that legal system. There would be no sanctity of international borders left, and states would be at the mercy of wanton external interference in handling its domestic affairs.

The problem is this. States haven't always been willing to set aside proceedings on the basis of an irregular exercise of jurisdiction. For this, I rely upon the practice of states as seen in cases where accused persons were illegally arrested abroad and brought to face trial in domestic courts. We discussed this earlier on the blog and I highlighted a divergence in practice. One view considers the illegal arrest as one circumstance to be relied upon for arguing the unfairness of trial. The other view considers the circumstances of arrest inconsequential to determining the fairness or legality of the subsequent trial. India follows the latter view. In Om Hemrajani the Supreme Court observed: "How the accused gets there [to court] is immaterial. It does not matter whether he comes voluntarily or in answer to summons or under illegal arrest." If the individual can be brought to face trial after an illegal arrest, why would a company be treated any differently if it is brought to court through illegal summons?

With the ever-burgeoning scope of strict liability offences and corruption trials in India, we may find a thorough judicial discussion of this issue soon. As this post suggests, the judiciary is bound to have its hands full. To put in my two cents, I would argue that the position in Om Hemrajani must be revised to make illegal arrests important for determining the validity of subsequent trial. Flowing from this, a strict interpretation of Section 105 Cr.P.C. should be adopted requiring that procedure to be followed for every company located abroad, regardless of its domestic presence.

Sunday, March 13, 2016

The Right against Self-Incrimination: Re-Defining Minimums

Over the last few posts we have discussed the interpretation of the phrase "person accused of any offence" which limits the application of the right against self-incrimination guaranteed under Article 20(3) of the Constitution of India. It was argued that the Supreme Court has interpreted the phrase in a manner that has placed severe restrictions on the application of this right. The balance, between the needs of law enforcement and rights of individuals, is tilted heavily in favour of the former. This is especially so if we limit our scope to looking at the applicability of Article 20(3) rights to cases involving offences outside the IPC, that are not ordinarily investigated by the police. The lines must be re-drawn, and I propose an alternative in this concluding post on the point. I argue that every person arrested, by any investigating/inquiring agency, and brought before a magistrate for detention beyond 24 hours under Section 167 Cr.P.C. must be understood as the "person accused of any offence" contemplated by the Constitution. I'll try and make out a case in support of this. I admit, at the outset, that the same is a work-in-progress, and comments are much appreciated.

Making a Basic Case 
I argue that we profit by reading the Constitution together with the Cr.P.C. Indeed, we must do so for Article 20 rights owing to the obvious overlaps. Article 20(3) coexists with a similar procedural right available under Section 161 of the Cr.P.C. Similarly, Article 20(2) has a corresponding statutory non-identical twin in Section 300 of the Cr.P.C. The Supreme Court has done this throughout its history as well. Unfortunately, in Deepak Mahajan it came to indefensible conclusions while doing so. 

If we read the entire Cr.P.C., the existence of some flow becomes evident. The code first tells you about how can a person's presence be secured - through arrest, summons, warrants etc. Then, it comes to securing evidence - searches, seizures, and the like. We then move to executive powers of judges, and then to investigations, cognizance, trial, judgment and appeal. Miscellaneous provisions come at the end. In this intelligent document then, it is not a fluke that Section 167(1) is the first provision that uses the word 'accused' when referring to the person being subjected to the legal justice system. It then characterises this accused person as one against whom "there are grounds for believing that the accusation or information is well-founded." The similarity between this language, and that which the Supreme Court itself used while first explaining the person clause in M.P. Sharma, is striking. Logically as well, it makes complete sense to consider such persons as those 'accused' at the time who may be detained for days in custody, as those to whom the protection against self-incrimination needs to extend. Detention is sought to by the police to collect further evidence, and it is necessary that a legal system protects the object of interrogation from having to face consequences borne out from being coerced to implicate herself.

This is why I disagree with the conclusion in Deepak Mahajan, where it held that the person before a magistrate in Section 167(1) is not the person protected under Article 20(3). Some criticism of the Court's interpretive exercise was already provided in the previous post. I also disagree with the Court's conclusion in paragraph 92 [SCC version of the judgment] that the word 'accused' means different things at different points in time. Rather, I argue that 'accused' has a settled core - someone having a well-founded accusation against herself - and this core develops as we progress from the stage of investigation to trial. The view of the Supreme Court, that a person may be arrested and sent to further detention beyond 24 hours but remains outside the scope of Article 20(3), is absurd. Individuals are left open to interrogation and detention in custody for as long as 3 months, without being protected from the possibility of facing a trial based on evidence coerced out of them. 

Reading Statutes Holistically
Setting aside Deepak Mahajan is fairly easy - it is a decision by 2 judges. Assuming it doesn't occupy the field, lets replace it with a view that every person arrested and detained beyond 24 hours is one "accused of any offence" for Article 20(3) and see the consequences. For one, I argue that this approach based on reading laws holistically promotes a clearer application of the criminal laws and also helps maintain that balance between the needs of investigation and the rights of persons. 

Within 24 hours, then, the police are not fettered by the absolute restrictions of Article 20(3). That means a person arrested cannot abuse a right against self-incrimination to dent an investigation by staying silent. Although 24 hours may seem like nothing, but manuals on investigation prove that this is not so [I can also crack a joke here and refer to a TV series 24 which shows repeatedly how the world can be put to imminent peril, and saved from it, in 24 hours]. Leads recovered through interrogation may not automatically result in securing evidence, but remain critical nevertheless.

This does not amount to giving the police a license to torture suspects, mind you. Bodily integrity is protected always under Article 21. Further, the scope of using confessions made to police officers is also very limited in India. Section 25 of the Indian Evidence Act prohibits using such confessions at trial against an accused person. Unlike Article 20(3), the person here need not be an 'accused' while making the confession. The reason behind this provision is a presumption against the reliability of such confessional statements. There are exceptions to this rule in Section 27 of that Act, which allow use of statements (wholly or partially) wherever these are supported by actual recoveries of material. The exception operates once a person is in police custody. As self-incrimination protections are also geared to ensure reliable evidence comes to court, applying Article 20(3) to persons in police custody beyond 24 hours would thus only strengthen the principles behind Sections 25 and 27. 

The Scope of the Problem at Hand
These posts were only looking at problems on one aspect of the right against self-incrimination. By no means have they been a complete discussion of these problems on this aspect. In fact, an equally bigger problem lies in provisions such as Section 108 of the Customs Act, 1962. These laws permit officers to question persons, and a refusal to answer questions is an offence which can be met by prosecution. Surely, the threat of prosecution on non-compliance amounts to compulsion! However, as the person questioned is not yet "accused of any offence", the Supreme Court has consistently held there is no violation of Article 20(3) by having such provisions. I conclude on a familiar note, thus. There is a long way to go to clean up the mess that is the law on Article 20(3). One only hopes that the Supreme Court does take it up, someday, one step at a time.

Thursday, March 3, 2016

Detention, Deepak Mahajan, and Self-Incrimination

(A previous version of this post appeared on the Indian Constitutional Law and Philosophy Blog. I am grateful to its resident editor and some close friends for comments)

Previously, we talked about how the “person accused of an offence” in Article 20(3) of the Indian Constitution have been interpreted by the Supreme Court. The Court had understood this phrase as describing a person who was the subject of a formal accusation, akin to a FIR. This created a gap between the time it takes for an informal accusation to become a formal one, which becomes a point where a person remains unprotected, and could be compelled to give evidence against himself. While investigations for IPC offences may confer little investigative mettle before a formal accusation, the same is not the case in statutes creating socio-economic offences. Statutes such as the Customs Act 1962, and NDPS Act 1988 vest officers with extensive powers before a formal accusation is levelled. The Supreme Court during the 1960s consistently held that Article 20(3) would not apply to persons compelled to give evidence against themselves at these stages.

I have expressed deep reservations about this approach, and in this part of my argument flesh out a possible alternative approach to answering the problem. The ideal situation would involve an amendment to the Cr.P.C. providing a definition of ‘Accused’. That is difficult for multifarious reasons and it is easier to fashion an approach from existing law (statutory and supreme court decision based). Accordingly, I argue that the phrase “person accused of an offence” should be read with the concept of detention in custody by any authority during an investigation. I draw the line this way: if an authority seeks your detention for more than the 24-hour minimum, you must be able to exercise your right against self-incrimination. Before moving on to this argument, I need to discuss one important decision.

Deepak Mahajan and Custodial Remand
Previously we ended our discussion with Romesh Chandra Mehta and the Sea Customs Act. We begin this post with the decision in Directorate of Enforcement v. Deepak Mahajan [AIR 1994 SC 1775]. All you need to know is that in the interregnum, the Supreme Court consistently built upon the foundations laid by Romesh Chandra Mehta, and by 1994 it was a nearly unassailable position that Article 20(3) didn’t extend to the questioning of persons before filing of formal complaints in socio-economic offences. It also consistently held that officers conducting the interrogation were not “police officers” and therefore confessions made to these officers would not be hit by Section 25 of the Indian Evidence Act.

Enter Deepak Mahajan. The Appellant DM was arrested for having allegedly committed offences under the erstwhile Foreign Exchange Regulation Act 1973 [FERA] and was taken for questioning. This power was available under  Section 35 FERA. A quandary arose soon after – if his detention is needed beyond the Constitutional maximum of 24 hours [Article 22], could further detention be granted by a Magistrate as in ordinary IPC cases? Section 167 of the Cr.P.C. is what allowed further detention. For clarity, I extract relevant parts here:

(1)   Whenever any person is arrested and detained in custody, and it appears that the investigation cannot be completed within the period of twenty-hour hours fixed by Section 57, and there are grounds for believing that the accusation or information is well-founded, the officer in charge of the police station or the police officer making the investigation … shall at the same time forward the accused to such Magistrate

(2)   The Magistrate to whom an accused person is forwarded under this section may … authorise the detention of the accused in such custody as such Magistrate thinks fit … and if he has no jurisdiction to try the case or commit it for trial, and considers further detention unnecessary, he may order the accused to be forwarded to a Magistrate having jurisdiction
(Emphasis Supplied)

This provision thus, invokes both a “police officer” and an “accused person”. A reading of the provision makes it clear that only those persons are sent to the Magistrate by the police against whom “there are grounds for believing that the accusation or information is well-founded”. This is perhaps the closest to a definition for a formal accusation that we can find. Therefore, could this provision be made applicable to authorise detention during investigation in statutes like FERA? Remember, these laws were those where the Court had held the interrogating officers were not police officers [to prevent application of Section 25, IEA]. And persons questioned were not accused at this pre-formal accusation stage [to prevent application of Article 20(3)]. To extend Section 167 would mean either conceding one or both of these premises upon which the Court had built nearly 30 years of jurisprudence, let alone the dramatic impact it would have on the investigation and trial of the cases themselves. The Delhi High Court had held that Section 167 would not apply, which meant no further custody before filing a formal accusation.

Walking a Tightrope
You have to think that something had to give. If the Court applied Section 167 then it meant that the questioned persons get important legal protections. If it didn’t extend Section 167, this meant a limit to detention in custody for 24 hours before filing any formal accusation which curtailed the scope for coercive interrogation [note, however, that this didn’t mean Article 20(3) became applicable to the entire pre-complaint process. The FERA had interrogation provisions at this stage that worked completely independent of custodial detention, and thus would remain outside Article 20(3)]. Reading the decision, it is clear that the Court knew exactly how tricky the issue was. It reversed the conclusions of the High Court and held that Section 167 Cr.P.C. would apply to allow those arrested under Section 35 of FERA and other socio-economic offences to be remanded to judicial custody.

Crucially though, the Court did not extend Section 25, IEA or Article 20(3) to persons remanded to custody. Let’s leave aside the Section 25 issue and focus on what bothers us – the refusal to extend Article 20(3). The court engages in an interesting discussion on how the criminal law does not have a consistent description of the term accused. Perhaps there is merit in that claim – accused being a generic word can be coloured differently at different stages. But look above, to how the “accused person” sent to the Magistrate under Section 167 Cr.P.C. was someone against whom there were well well-founded accusations as determined by the police. Even after its deliberations on the meaning of ‘accused’, the Court went on to note that the word ‘accused’ or ‘accused person’ is used only in a generic sense in Section 167(1) and (2) denoting the ‘person’ whose liberty is actually restrained on his arrest by a competent authority on a well-founded information or formal accusation or indictment [emphasis supplied].” So why would it not result in these persons being conferred with the protection under Article 20(3)?

Deepak Mahajan remains seminal because this is the first time that the Supreme Court discusses the possibility of a link between the idea of custodial remand and self-incrimination. But the decision ultimately went the same way and compounded the earlier problems. Now, persons could be detained for up to 90 days without any protection from being compelled to incriminate themselves. In the next post, we’ll develop this argument to see whether Deepak Mahajan was in fact a lost opportunity that leads us to a better, more holistic, version of Article 20(3). 

Wednesday, March 2, 2016

Bail in re JNU: A Pyrrhic Victory at Best

Today, a single judge of the Delhi High Court granted interim bail for 6 months to accused Kanhaiya Kumar in FIR No. 110/2016 under Sections 124-A/34 IPC (the investigation has expanded to offences under Sections 124-A/120-B/34/147/149 IPC). For those unaware (which means those who have been living under a rock for the past three weeks), Mr. Kumar -  a PhD student at the Jawaharlal Nehru University [JNU] and president of the Jawaharlal Nehru University Students' Union - was arrested after having been named in the FIR. The primary allegation against him was his involvement in the raising of anti-national slogans inside the JNU campus on 09.02.2016. As most of us were (hopefully) not living under rocks, I will not go into what apparently transpired on that date. The unquestionable facts were these: police stormed a varsity, arrested students for making speeches, and didn't do all that much to prevent Mr. Kumar getting assaulted while in police custody itself. 

What was the message sent? Was it like the Home Minister tweeted - no tolerance for those saying anti-national things? Would this mean that one's freedom of speech and express was going to be limited by the hurting of other's sentiments when those others go on a rampage to prove their hurt? All this made the bail proceedings of Mr. Kumar both sensational and highly important. The result, as the title suggests, is a pyrrhic victory if the glass is seen half full, but is an undeniable nadir for the judiciary if the glass is seen half empty (like most people do). Why do I say such damning things? Those of you who broke off reading this post to read the order first, or came here after having read the order, might not have that question. For others, bear with me as I explain. I have two principal objections: (i) a complete pre-assessment of the case that has effectively condemned the accused, and (ii) the emergence of a dangerous symbiotic relationship between a sensationalist judiciary with its sensationalist media. The Court also refused to adequately address the law on grant of bail itself, but lets leave that aside for now.

Article 19(1)(a) is little more than a House of Cards
The court puffs, and there goes the protection of Article 19(1)(a) tumbling down. After quoting Hindi Film lyrics deemed appropriate for the occasion - right at the end, the order states that observations here "shall not be considered as an expression on merits". It is standard practice to say so, as some engagement with the factual matrix is unavoidable when hearing a bail matter. But what happens here is difficult to swallow. The Court goes out of its way to confirm the entire set of legal propositions that the State wish to advance through the present case. It must be remembered that the question here is not only whether Mr. Kumar and others will be found guilty after trial, but whether there should be a trial in the first place. The extent of the rights safeguarded by Article 19(1)(a) was the issue here. That was squarely decided against the petitioners. The Court at paragraph 40 concluded that this "is a case of raising anti-national slogans which do have the effect of threatening national integrity". All hope that the accused had of having any arguments on charge were dashed in a line, regardless of the caveats issued. 

Paragraphs 39 and 41 show how the Court views the extent of the right under Article 19(1)(a). It exhorts, probably with a chest puffed with pride, that we enjoy freedoms without realising that we can only do so "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 of 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." Reading this, it seemed like I was re-watching Jack Nicholson deliver that famous "You Can't Handle the Truth" monologue from A Few Good Men. Mind you, Nicholson's character authorised the brutal killing of a soldier because he couldn't withstand those conditions and that would be ultimately fatal to the forces at the battlefield. 

Oh, also, a right to chant slogans is restricted by the "demoralising effect on the family of those martyrs' who returned home in coffin draped in tricolor." [Paragraph 42]. After telling everyone, from the Indian student body [Paragraph 44] to the JNU faculty [Paragraph 45] on how it should go back and think about the bad things that it did, the Court strikes the final blow in Paragraph 47: "the thoughts reflected in the slogans raised by some of the students of JNU who organised and participated in that programme cannot be claimed to be protected as fundamental rights to freedom of speech and expression." Yes, my thoughts themselves are unceremoniously thrown out in the rain from their place under the umbrella of Article 19(1)(a). The Court thus concludes that sedition is little more than a glorified defamation case against the State itself - you cannot say anything that might hurt sentiments. Is that what the purpose of having a fundamental right to freedom of speech and expression means? That a band of persons who claiming to be hurt (there, there) by my comments, can kick up enough of a fuss to take away my right to say that? Such an exercise of the legal provisions is definitely anti-minority and is bound to cause further oppression [For more on how such an interpretation of the law is undoubtedly horrendous, please read the excellent book by Mr. Gautam Bhatia titled Offend, Shock or Disturb.] 

Yet Another Confirmation of a Vain Judiciary
Paragraph 47, after taking away our freedom of thought, goes into an all out assault that I am still finding hard to understand. The order states that this anti-national thinking is "a kind of infection from which such students are suffering which needs to be controlled/cured before it becomes an epidemic." Naturally, the court follows this up with the old surgeon and gangrenous limb routine, rather farcically observing at Paragraph 48 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." Due to the possible introspection engaged in by Mr. Kumar, the Court deems "inclined to provide conservative method of treatment." [It really does say so].

Who is this being written for? Is it for the police or the court? Of course not, for the order itself makes clear that the observations contained here are of no value whatsoever. They obviously are not for the general moral guidance of Mr. Kumar and the advocates involved in the case before the court. This is for the judiciary's new best friend, which it has revealed to us of late through 3 AM hearings and repeated soundbites - the 24 hour news circus! It was funny, as I started typing this post a certain channel started a newsflash about the order stating that "Exclusive: XYZ has Copy of High Court Order", deceiving you to think that an order available off the internet was in fact secured after great effect by the reporters of that esteemed establishment. At that point I knew what will follow over next two days. News anchors will shout themselves hoarse repeating these lines (some more than others, of course), to condemn and persecute at will. Amazingly, the order justifies the news peddled by the TV channels that JNU is a den of anti-national activity (something that even the police did not say). It went ahead and imposed the strangest conditions on granting bail to Mr. Kumar - he is required to "make all efforts within his power to control anti-national activities in campus", and his surety is tasked with not only ensuring that the Accused does not abscond, but also "to ensure that his thoughts and energy are channelized in a constructive manner" [a judicial nod of approval to our pro-national fascination with Yoga, perhaps?].  

Is a Pyrrhic victory better than none at all? While on the one hand it grants bail to Mr. Kumar (in my view, deservedly so as there exist little basis to further detain him for conducting the investigation), on the other hand the Court imposes several conditions on his release. The release is only for a period of 6 months. It would only be possible if Mr. Kumar secures a faculty member from JNU willing to stand surety for him and undertaking to ensure that he [Kumar] channels his energies in a positive way. Mr. Kumar himself is tasked with the unenviable exercise of ensuring that no anti-national activity occurs on the JNU campus. Anti-national here, as we all know, is basically whatever a bunch of people decide to cry foul about sufficiently loudly. Some would also note that by tasking him with being good-cop for 6 months, he has been uncharitably denied the right to step down as President of the Students' Union. What happens if someone thinks that one or more of these conditions are not being satisfied? That Mr. Kumar hasn't penned enough speeches eulogising our martyrs? The bail can be revoked, of course. So what the order eventually amounts to, is to give judicial basis for the public flogging of Mr. Kumar that occurred without such sanction previously. Perhaps a Pyrrhic victory might not be that good after all.