Top lawyers and leading newspapers have raised questions about the constitutionality of the recent arrest of environmental activist Disha Ravi, which experts believe is the epitome of the centre’s efforts to curb free speech. Former Supreme Court judge Deepak Gupta has said that “Every citizen of this country has a right to oppose the government so long as the opposition is peaceful” while speaking as part of a panel discussion conducted by Sreenivasan Jain for NDTV 24×7.
A magistrate in Delhi had remanded the Bengaluru-based activist to five days custody by the Special Cell of the Delhi Police on 14th February. She had been arrested by the Delhi Police from her home in Bengaluru, allegedly without the involvement of the local police there. She has been arrested in relation to a “toolkit” on the farmer’s protest allegedly created by her and shared to global climate activist Greta Thunberg, who then shared it on her Twitter feed.
Authorities believe this “toolkit” was in part the reason behind the violence that ensued on the farmer’s tractor rally on 26th January this year.
The Delhi Police claims the 22-year-old has links with Canada-based Poetic Justice Foundation (PJF), which is allegedly a pro-Khalistani organization. Ravi has also reportedly deleted a WhatsApp group and chats that discussed these issues, according to the police. In a recent Press Conference held by them, these authorities have pointed towards the allegedly seditionist and pro-Khalistani content present in the toolkit.
The remand order issued by the Magistrate in Delhi says that the police have justified their need for police custody because they wanted to obtain material from a deleted WhatsApp group and other devices and mobiles. They also expressed that a proper investigation requires interrogation to obtain information about the pro-Khalistani group and its active members. Her lawyer, Abhinav Sekhri, could not be present during the hearing and a stand-in government lawyer was provided to her.
FIR Accessed by Lawyer
Questions have been raised about the procedure that was followed to make this arrest, along with the charges that have been levied against her. Disha has been charged under Sections 124A (sedition), 153A (promoting enmity between different groups on ground of religion, race, place of birth, residence, language, etc), 153 (wantonly giving provocation with intent to cause riot) and 120B (whoever is a party to a criminal conspiracy) of the Indian Penal Code (IPC), according to the First Information Report (FIR) accessed by her lawyers two days after her arrest. Sedition is a non-bailable offence under the IPC.
According to a report published by The News Minute, the FIR says that the ‘toolkit’ in question “contains a detailed plan of a large conspiracy to wage an economic, social, cultural, and regional war against India.” The FIR, however, has not quoted any specific sections from ‘toolkit’ that substantiate these claims. While stating that the people behind this ‘toolkit’ were responsible for instigating the violence on Republic Day, no specific mention of Ravi has been made, or the edits in the document made by her.
The document talks about ways in which more people globally can participate in the farmer’s protests in the days before Republic Day through actions like recording videos, pictures and engaging in tweetstorms, the FIR has stated.
The FIR has also claimed that the “banned terrorist organisation Sikhs for Justice and Poetic Justice Foundation (PJF)” were behind the disruption on 26th January and that the toolkit contained campaign material from the PJF. “It is pertinent to mention that the secessionist banned organisation Sikhs for Justice based in the USA had declared a reward of USD 250,000 for waving secessionist flag at the India Gate on Republic Day 2021 which also contributed to the violence which happened as a result of the tractor rally.”
“Bail, Not Jail”: Former SC Judge Finds Nothing Seditious
Justice Gupta’s views on the arrest were echoed by other senior lawyers Rebecca M. John, Sidharth Luthra and Vikas Singh, and Advocate Abhinav Chandrachud, who were also a part of the panel discussing the arrest of Ravi.
Justice Gupta, who was present along with senior lawyers Rebecca M. John, Sidharth Luthra and Vikas Singh, and Advocate Abhinav Chandrachud, expressed that “to say that this is sedition is not understanding the law” while talking about the contents of the ‘toolkit’ after reviewing what is present on the public domain. “There is nothing in the toolkit that says anything with regard to violence or inciting people. It’s in support of the farmer’s protests, it asks the farmers to move from the sight of protest to Delhi but also asks them to come back. Nothing seditious about it.”
.@OnReality_Check | “I have gone through the documents of the ‘Toolkit’…there is nothing which says anything with regard to violence or inciting people,” says former Supreme Court judge Deepak Gupta, on the arrest of 22-year-old activist #DishaRavi pic.twitter.com/KB6DH2tdfD
— NDTV (@ndtv) February 15, 2021
The 1962 Kedar Nath Singh v. State of Bihar case was mentioned by him, wherein the constitutional validity of Section 124A of the IPC, which is the law against Sedition, was upheld by the Supreme Court, and noted that sedition could only take place if there was incitement to violence or public disorder. Neither was present in the case in question.
“The sedition law was framed by the imperialistic, colonialist ruler, the British empire, who wanted to rule over India. Even at that time, the law made sedition a grave crime, punishable with life imprisonment, but in the home country of England made sedition a misdemeanour, punishable by up to two years in prison. Many democracies don’t have sedition in the law books any longer. I was hoping that with our experiences of Bal Gangadhar Tilak and Mahatma Gandhi being sent behind bars for sedition, we would have abrogated this law, or at least toned down this clause. But, unfortunately, this law is being misused”, added the former Supreme Court Judge.
When asked whether due application of the judicial mind took place, Justice Gupta said that the rule is “bail, not jail”, and the Court seems to forget this in many cases. “They don’t even seem to read the documents, just look at what the police has asked them in a one-page communication that we want a remand. Scrutiny at this stage is not required but at least they should apply their mind. This order shows a total lack of application from mind because if the police hasn’t read the Supreme Court judgements right or Kedar Singh, they would at least expect the judge to have been aware of that judgement”, he added.
“Sedition Nothing More Than Misdemeanour”
Parallels with the colonial times were made by Advocate Dr. Abhinav Chandrachud as well, the offence of sedition in line with the English law before 1832, on which our current law of sedition is based, and has been abolished by the country since 2009. It considered the offence as a mere misdemeanour, punishable by up to 2 years in prison. It was also non-cogniable and bailable, which meant that the person could not be arrested by a police officer without a warrant from a Magistrate and could then obtain bail from the Court. This is not the case in India, where it is a non-bailable, cognizable offence that can be punishable by life imprisonment.
“When Bal Gangadhar Tilak was charged with Sedition, he couldn’t be arrested without a warrant from a Magistrate, whereas today in independent India, our citizens of this free and great country can be arrested by a police officer without the same”, commented the lawyer.
Without commenting on the merits of the matter, senior Advocate Sidharth Luthra said that Sedition is used too often and it is a serious concern as it can’t be used at just the drop of a hat, and this is what the Constitutional bench in the 1962 case mentioned above said.
While questioning whether Ravi was provided access to a lawyer, Luthra lamented whether “the rights of a detainee or arrestee, increasingly become only paper rights because that’s what gives you the right to access fair justice.”
He said that if she had been given access to a lawyer of her choice, she could have argued for a transit bail, and added that these issues have become a “serious procedural and human rights issue.”
“Spirit of the Law Violated”
Another senior lawyer Rebecca John too weighed in on the issue and said there was a need to separate fact from fiction. “I oppose Weekend arrests and productions. Delhi Police could’ve waited for a Monday arrest and Tuesday production. By producing an accused person on a Sunday before a duty magistrate you’re basically ensuring that her legal rights are comprised because it is very difficult for lawyers to be present. Most lawyers don’t even know that their clients are going to be produced in court on a Sunday”, she said.
She added that there is a cat and mouse game that constantly happen between the police and defence counsels where counsels are never really informed about the time and place where the production will take place and believes that this was the case here as well.
She has also raised concerns about the manner in which she was brought to Delhi, saying that while they have not violated the letter of the law, they have violated the spirit of the law. “There is a December 2019 judgement of a Divisional Bench of the Delhi High Court, and the Delhi Police is bound by that wherein the High Court laid out guidelines for similar situations in which accused persons from outside the jurisdiction of Delhi have to be produced in Delhi courts. “The arrested person must be given an opportunity to consult his lawyer before he was taken out of this state” This was perhaps not done”, she said.
The Delhi High Court has highlighted the fact that if you are producing someone from outside your jurisdiction then you must take transit remand and you must and put forward your case diaries in front of the transit Magistrate, she added while questioning whether the reasons for demanding police custody of the arrestee are justifiable.
“Increasing Intolerance to Dissent”
When asked whether similar arrests planned in the toolkit case concern him, Supreme Court lawyer Vikas Singh said: “It clearly showing that the state is becoming increasingly intolerant to dissent.”
“Right to free speech hasn’t been conferred to the press and has been done in the U.S. Here it is given only to the citizen and every citizen has a right to free speech and this will definitely go to retweeting something”, Singh said.
“Arrest in violation of Article 22(2)”
Senior Advocate Indira Jaising, in her article, wrote that the manner of Disha’s arrest was clearly illegal and unconstitutional. Article 22(2) states that a person arrested shall be produced before the nearest magistrate within 24 hours.
“Forgetting the word ‘nearest’ the Delhi police which made the arrest, produced her before a Delhi magistrate within 24 hours, but this is not compliance with the law, they were bound to produce her before the nearest magistrate”, Jaising said.
Criticizing the sedition law, Jaising wrote that in her opinion it’s the offence of sedition in Section 124A of the IPC that needs to be repealed for a semblance of democracy to return to the country.
Leading newspapers speak up, claims wrongful arrest
Several newspapers have also taken a stance against Ravi’s arrest, while also being critical of the manner and charges of her arrest.
By headlining its editorial as “Disha Ravi’s arrest is wrong”, Hindustan Times couldn’t have been more straightforward with its stance about this whole issue. Three core roles have been outlined by the newspaper, that of the state, the judiciary and the activists themselves.
“The government has decided to politically invest in a narrative of a global foreign conspiracy against India, of which the “toolkit” is evidence. But the evidence to suggest such a conspiracy is limited. Despite its objectionable characterisation of the Indian State in parts, did the “toolkit” — a common technique in both political and civil society campaigns now — really lead to the violence on January 26? Is there direct evidence? At a time when India is facing criticism for growing illiberalism, is arresting young activists the most ethical or prudent course of action? How does it sync with India’s constitutional guarantees on free speech and political activity?”, questions the editorial.
On the role of the judiciary, the newspaper has said that the handling of the case by the Metropolitan Magistrate does not reflect well. “Courts must treat cases involving personal liberty with more rigour, rather than casually send people to jail when bail should be the norm,” it said.
In the case of the activists, the article says that while dissent and taking up positions are rights, activists often end up getting used in larger political games.
“Undue Attention Given ‘Foreign Plot’”
In an editorial headlined “Toolkit justice”, the Indian Express opened with a strong stance in a strapline that said: “Weaponising an advocacy document to arrest an activist signals paranoia, not democratic power.”
Pointing to the Central Government, the newspaper says that “the Centre, to whom Delhi Police answers, is ratcheting up rhetoric of a shadowy international conspiracy even as it insists, after 11 formal rounds of talks with farm union leaders, that it is willing to continue talking.”
The article questions whether an impartial probe will be awarded to the 22-year-old, saying that the huge number of FIRs that have been filed in the aftermath of the rally on January 26th and the over-reading of a common advocacy tool raises grave concerns.
The newspaper believes that undue attention to that the “NRI hardliner fringe” formed due to the terror that engulfed the state in the 1980s and has inadvertently become a part of the protest. “Ever since the farm protests began, the government has sought to demonise the protesters or to undermine their agency by looking over their shoulder — in the case of farmers from Punjab, the Khalistan spectre comes in handy.”
Instead of addressing the central issue, which is the concern of the farmer’s regarding the farm laws, the central government is using all its might to go after its concerns of “foreign plot” by arresting activists, and warning youngsters against dissent at the same time says Indian Express.
“Surely India’s democracy cannot be so thin-skinned about the international interface, so paranoid, ’70s-style, about the “foreign hand”. In an open democracy, the power of a government lies not in creating an obedient and pliant citizenry by criminalising the protester, but in extending and enlivening the public sphere. The wise men and women of the government need to ask: When there is a democratic protest against a law passed by Parliament, who draws the red lines, where, and at what cost?”
“Delhi Police Outdid Itself”
Calling the arrest of Ravi “perverse and high-handed”, The Hindu has said that through this move, the Delhi Police has outdone all of the previous efforts of the central government of using arrests and FIRs as a tool of harassment. “The manner in which a Delhi Police team travelled to Bengaluru and took Disha Ravi into custody, apparently without following the guidelines laid down by the Delhi High Court on inter-State arrests, marks a new low in the display of perversity and high-handedness in law enforcement,” says the newspaper in its editorial.
The country’s reputation now is not being tarnished by protests or activism, but by the centre’s efforts to curb the same, says the newspaper while saying: “The regime is more likely to attract international embarrassment and opprobrium by the indiscriminate use of police power against activists, protesters and the media. The state is increasingly resorting to heavy-handed responses to issues that attract a convergence of activism, opposition political activity and adverse media scrutiny.”
“The state is increasingly resorting to heavy-handed responses to issues that attract a convergence of activism, opposition political activity and adverse media scrutiny”, concluded the editorial.
“Sedition Used as Political Tool”
In an editorial headlined “Losing Disha over dissent”, The Financial Express (FE) has suggested that the Delhi Police has lost its way and has started to confuse dissent or protests as sedition.
Questioning the heavy-handedness of the Delhi Police’s firm belied that the “toolkit” was behind the violence, FE says: “Asking people to gather to protest, to provide them with template tweets where important leaders are tagged—the staple of most toolkits—or suggesting the most effective ways to protest, etc, is quite different from a plan to change the route of the rally to head for the Red Fort instead of sticking to the route that was agreed to with the police.”
The editorial has drawn parallels with the arrest of the activist with the FIRs that were filed against several journalists in the aftermath of the tractor rally, for misreporting the death of a protestor, saying that considering both these instances a part of a global conspiracy was more than a stretch.
Echoing the views of the other newspapers, FE has stated that by focusing merely on the activists and protestors, the government is missing out on the main issue: the farmers and their concerns with the farm laws.
Pointing to NCRB records on cases of Sedition, the editorial says that convictions on such cases are quite low as compared to the number of people that are probed. This gives “rise to the view that most of these agencies are mere tools of the political order of the day.”
As governments face increasing vocalisation from its citizens through new and traditional platforms, with misinformation and hyperboles being an avoidable part of these movements, “Governments will have to find ways to neutralise these campaigns with their own onslaught of news/views across various platforms; the use of investigative authorities has to be done with great care, and the use of blunt tools like arrests under sedition laws is best avoided,” concluded the article.