This article has been authored by Sanya Shukla, a fourth-year student at Amity Law School, Delhi.
The presence of constitutional and statutory safeguards has in no way prevented unbridled executive power from clamping down on activists and placing them under the lens.This is inarguably evident from the recent arrest of the21-year-old climate activist, Disha Ravi.A founder-member of the Fridays for Future (FFF) campaign in India, Disha Ravi is a Bengaluru-based climate activist and is working relentlessly to bring climate-related awareness.
Disha was arrested for ‘editing’ and sharing a toolkit tweetedby Swedish climate activist Greta Thunberg, and was sent to a five day police custody which was then remanded to 3 day judicial custody as more time was sought by the police to carry out the interrogation.
The Delhi Police alleged Disha to have collaborated with pro-khalistani outfit, Poetic Justice Foundationby sharing the toolkit to incite violence and disaffection against the State in connection to the contentious Farm Acts and the ongoing farmer’s protest in the country.
The creation of a WhatsApp group to discuss the toolkit, of which Disha was a part, led to the accusation of her being a ‘key conspirator’ and was labeled as the ‘editor of the toolkit google doc’ by the Delhi Police.
What is a toolkit?
In layman terms, it is a document that raises awareness and amplifies the cause of the protest. It further provides a detailed and organized plan on how to take the protests forward, emphasizes on what needs to be done, when and how.
Legality of the Arrest
The article aims at determining whether the arrest was legal or not. Starting from the arrest of the 21-year-old, without obtaining a transit remand order, to the Delhi magistrate’s order to send her to five days of police custody, there are grave questions to be asked about whether legal procedures were adequately followed. Moreover, the actions of the Delhi police including the spinning of narratives about Disha and selective leak of information to the media stand in contradiction with the recent decisions of the Bombay and Delhi High Courts.
Transit remand order not obtained for the arrest
The conceptualization of transit remand is derived from Article 22(2) of the Constitution which provides that the arrestee has to be produced before the “nearest Magistrate” within 24 hours. Obtaining a transit remand is not a compulsory pre-requisite under the Code of Criminal Procedure. However, in Sandeep Kumar vs. The State (Govt. Of Nct Of Delhi) & Ors., the Delhi High Court laid down rules for inter-state arrest and provided, “Endeavor should be made to obtain transit remand after producing the arrestee before the nearest Magistrate unless need of the situation warrant otherwise”.
It remains unclear what the exigencies in the present situation were which prevented the Delhi Police from taking Disha before a magistrate in Bengaluru. In contravention to the judgment, which requires establishing contact with the local police station, in whose jurisdiction the arrest takes place, the Bengaluru police remained unaware of her arrest until she was on the flight to Delhi.
Even at the time of production before the duty magistrate, due process of law was not followed as the transit remand’s compliance went entirely unchecked and the duty magistrate failed to ensure that Disha be provided with legal counsel of her choice.
Arrest made by police officers in civil clothing
In DK Basu v. State of West Bengal, it was stated that at the time of arrest, police has to be in uniform with identifiable name-tags. Further, it also required that the reasons for arrest have to be clearly stated to the accused and their family members.
This has been violated in the present case as Disha was arrested from her residence, without informing the family of the details in Bengaluru by the Delhi Police in civil clothes. They arrived at her residence by allegedly tracking her mobile phone’s location to ensure she was at home before going in to make the arrest.
Activism cannot be equated with sedition
The origin of sedition law in India can be attributed to the colonial government, which incorporated it in the penal code to restrain the growing feeling of civil disobedience against the British Raj. In the present case, according to the press release dated 15th February released by the Delhi Police, “The main aim of the toolkit was to create misinformation and disaffection against the lawfully enacted government. The Toolkit sought to amplify the fake news and other falsehoods and also sought to instigate action on 26th January, i.e. India’s Republic Day.”
In other words, the content of the toolkit and the creation of the toolkit amounts to sedition, and is claimed that it intends to wage a “cultural, social and regional war against the State”. The Supreme Court in various cases, including Romesh Thappar vs The State of Madras, has held that“there has to be a direct link between the alleged statement/action of an accused person in sedition cases, and some violence which has then taken place as a result of such statement”.
The Delhi Police could not draw any link between the violence on 26 January and the contents of the toolkit, which provide for peaceful and lawful forms of protest. The claims of “incriminating information” as described by the police also do not mention violence anywhere. Similarly, in Balwant Singh &Anr vs State of Punjab, the Hon’ble Supreme Court stated that “disaffection without violence is not sedition”. Therefore, it is clear that activism cannot be equated to sedition in order to silence the brave.
Failure to provide legal counsel of choice
The Constitution of India under Article 22(1) provides for the fundamental provision that grants every arrested person the right to be defended by a “legal practitioner of his choice”. Despite an obligation on the Delhi Police to provide relevant information regarding the proceedings \, the lawyers claimed that they were not provided with the details of the remand hearing and which court it would take place, even after sending multiple requests.
Although Disha was represented by a legal aid lawyer, it is alleged that the police dehorted the lawyers of her choice by giving them the wrong place of production, instead of the Patiala House Court.
Remand order of five days
It is a well-established principle with support from ample Supreme Court judgments that remand orders should not be passed in a mechanical way. It requires careful perusal of the facts and circumstances of each individual case. Rule 8 of the Delhi High Court Rules specifically lays down that under no circumstances should an accused person be remanded to police custody unless his/her presence is indispensable to the completion of the inquiry and if so remanded, the duration of remand must be as short as possible.
The order passed by the Magistrate lacks application of the mind and is as almost mechanical in nature. In the present case, nothing in the fact sheet or the FIR provide enough evidence to classify Disha Ravi’s actions as serious offences, yet she was sent to 5 days of police custody. Remand cases need to be examined with intricacy and a straightjacket ‘one size fits all’ solution cannot form a just decision.
Selective leak of information and tweets by the Delhi police
Soon after the arrest of the activist, Delhi police through their official twitter handle posted a thread of tweets labeling her as a ‘key conspirator’ and ‘editor’ of the toolkit document that was allegedly prepared to spread disaffection against the State.There was also selective leak of information to news outlets about certain admissions made by Disha Ravi in order to sway public opinion against her. These dirty tricks adopted affect presumption of innocence and right to a fair trial.
Media houses reporting fabricated narrative
The coverage of the leaks from the police about Disha Ravi by media channels clearly goes against the guidelines recently laid down by the Bombay High Court.
The key guidelines include:-
· Non-publication of confessions alleged to be made by an accused to the police (not a magistrate) without informing the public that such evidence is inadmissible in court under S. 25 of the Indian Evidence Act.
· Do not assert on the merits of the case, ie, pre-judge the accused as guilty till the trial is over.
· Don’t surmise or envisage the course of action required to complete the investigation.
Don’t indulge in character assassination of the accused, the victim or witnesses in the case. It further held that media should refrain from presenting information which can cause prejudice to an ongoing inquiry or investigation and the affect the right to a fair trial.
There has been significant and justified outcry about the procedural violations in the detention and grant of remand of Disha Ravi. Following this, on the 23rd of February 2021, a Delhi Court granted bail to the 21-year-old activist. This is the highlight of one such case; however, the pattern of illegal arrests in the country has become increasingly systematic. In spite of the presence of constitutional and statutory safeguards, arbitrary arrests by the police have become an everyday affair and often go unchecked.
It is the need of the hour to focus on the effective implementation of arrest safeguards because as of now the rosy text on paper has no practical translation, and whimsical arrests go unchecked, despite the presence of judicial oversight.