Bengaluru: In filing a sedition case against climate activist Disha Ravi, the Delhi police and the Delhi magistrate who remanded her to police custody breached a series of legal norms, experts told Article 14.
The arrest of the 21-year-old, they said:
Violated clear Supreme Court guidelines on use of the sedition law.
By not obtaining a “transit remand” after producing her before a judge and not giving her access to her lawyer, the Delhi police ignored a 2020 Delhi High Court division bench ruling on inter-state arrests.
The manner of her arrest and the response of the Delhi judge who remanded her to five days police custody violated the “spirit of the law".
On Saturday afternoon, Disha was taken from her home at Soledevanahalli on the northern outskirts of Bengaluru by the Delhi police.
Disha, and perhaps seven others nationwide, are accused by the Delhi police of being key conspirators in the formulation and dissemination of a toolkit—a shared document with suggestions for tweets, hashtags and a protest plan—tweeted by Swedish climate activist Greta Thunberg on 3 February.
Disha (whose father’s name is Ravi) is a coordinator with the environmental group Fridays for Future and works for a Bengaluru vegan products retailer, was produced before a judge in Delhi and remanded to five days police custody in Delhi.
This use of sedition law violates Supreme Court decisions in the 1962 Kedar Nath Singh vs State of Bihar and the 1995 Balwant Singh & Bhupinder Singh vs State of Punjab. In these cases, the Court made it clear that the sedition law could only be used when there was “incitement to violence” or if there was “intention to create disorder.”
Yoga-And-Chai To Human Rights
It is unclear what part of the toolkit was found to be seditious by the Delhi Police. No part of the initial toolkit or subsequent revised toolkit shared on 4 February, explicitly or otherwise, calls for the use of violence as a means of protest.
Former Supreme Court Justice Deepak Gupta said during a discussion on NDTV on 15 February that there appeared to be nothing seditious about the document.
“Every citizen of this country has a right to oppose the government as long as the opposition is peaceful,” Justice Gupta said.
A lawyer in Disha’s legal team said the criminal investigation conducted by the Delhi Police seeks to tenuously link the toolkit, created in January largely by youth who are part of a largely urban movement against climate change, to the Republic Day violence that occured after some protestors stormed the Red Fort in Delhi.
The Delhi police claimed that through the formulation and dissemination of the toolkit, Disha and others had “collaborated with the pro-Khalistani Poetic Justice Foundation (PJF) to spread disaffection against the Indian State.”
PJF runs the #AskIndiaWhy campaign—it seeks to mobilise against human-rights violations in the country—and was only one of the resources mentioned in the toolkit shared by Disha and Thunberg.
It is unlikely to be a coincidence that in the hours leading up to the Delhi police filing an FIR, a social-media campaign from supporters of the Bharatiya Janata Party-led government was underway that focussed on the ‘strategy deck’ of the AskIndiaCampaign.
The page listed objectives of the campaign including the repeal of farm bills, “expose fascist response” to the dissent shown by farmers, and to “disrupt the ‘yoga and chai' image of India in general”. The latter sentence was picked up by BJP leaders to allege a “foreign conspiracy” and by Prime Minister Narendra Modi who claimed a similar conspiracy to “defame Indian tea”.
The word “disrupt”, in this case, refers to challenging international perceptions of India’s soft power and to shift their gaze to its human rights violations, said a person who was part of the discussions in framing the Fridays for Future toolkit.
“The yoga and chai image was popularised by the West, and this government is capitalising on that image to provide itself immunity from acts of violence against minorities and vulnerable communities,” said the person, who requested anonymity given the sensitivities of the government.
Sedition Convictions Are Almost Impossible
The filing of sedition cases has spiked after Modi took office, as new Article 14 data revealed earlier this month: 96% of cases involving criticism of politicians and governments were filed after 2014.
Sedition, considered a heinous crime under Indian law with a sentence that can extend to life, often leads to denial of bail in lower courts and long imprisonment even before the trial begins. Conviction is rare to non-existent, as Article 14 reported in February 2020, with about a third of cases not even making it to trial.
“At this stage of the investigation, the police can claim links they are investigating particularly since they are not subjected to judicial scrutiny,” said Saurabh Kirpal, a Supreme Court advocate.
“Magistrates too tend to give a lot of leeway to the police and the victim (accused in a sedition case) is sent to jail,” said Kirpal. “It is often only in the Supreme Court that bail is granted. By this time, the person has spent considerable time in jail and the police have achieved what they wanted.”
The Delhi police arrived at Disha’s home, where she stays with her mother, on 13 February. Her father is estranged and stays in Mysuru.
“They only told her to come with them and that there was a sedition case filed against her. A few hours later, she was taken to Delhi by flight,” said a friend, who chose to be anonymous for fear of reprisal.
“There was barely any information given to the mother, who was and continues to be visibly in shock,” said the friend. “She (Disha) is barely an adult and is being treated like a terrorist by the state.”
‘Magistrate’s Order Displays Complete Lack Of Application’
On 14 February, she was produced before a magistrate’s court in Patiala House, Delhi. The police asked for seven days custody, the magistrate granted them five days. Disha was represented by a government-appointed legal aid counsel, but reports indicate that she presented her case to the judge. Her own lawyer was not present.
The order, however, records only the statement made by the investigating officer, who has sought custody to recover deleted Whatsapp group messages.
The order “displayed” a complete lack of application of mind and seems to be relaying everything the police has said, said senior advocate Rebecca Mammen John.
“Why were the statements of Disha or her counsel not recorded in the order?” said John. “It is imperative for the magistrate to ensure there is substantive compliance of not just the letter of law but also the spirit of the law.”
“Instead, these duties were done in a mechanical manner relying on the claims of the police,” she said. “Failure to fulfil these obligations can lead to a serious miscarriage of justice.”
The manner of the arrest—on a Saturday evening when courts were closed —should have been questioned before remanding a person to police custody, said John.
“Why were the police not questioned about the need to bring her from Bengaluru without producing her in front of a magistrate there?” asked John. “And, if the police only seek data from her phone and Whatsapp chats, can it not be done in her absence? The order does not reflect these nor does it explain why a 21-year-old woman needed to be kept in police custody for five days.”
More Violations In Conditions Of Arrest
Article 22(2) of the Constitution says an accused should be produced before the “nearest magistrate” within 24 hours. The Delhi police seems to have complied with the time frame but have clearly violated guidelines drawn by a division bench of the Delhi High Court in 2020.
The Court had ordered that before visiting another state for arrests, the police should “endeavour to establish contact with the local police”. On reaching the destination, they should inform and seek assistance of the local police; serve the FIR, translated in the local language to the accused; have an independent witness from the neighbourhood for the arrest; make a diary entry in person in the local police station; and “endeavour to obtain a transit remand” after producing the accused in front of the magistrate; and give the accused the opportunity to consult their lawyer.
Most of these conditions appear to have been violated.
Even on Sunday night in Delhi—when Disha had been remanded to police custody—advocates representing her in Delhi and Bengaluru had little clarity whether she had been formally arrested from her home or taken to Delhi for questioning and arrested there.
Local police officials initially claimed they were not informed of the arrest. However, on Monday, a senior official, who spoke on the condition of anonymity to Article 14, said the local Soledevanahalli police were informed after Disha was picked up and an entry was made in the police station’s records.
“The local police also went to the spot to help with the arrest,” said the Bengaluru police officer. Since she was being produced in Delhi within 24 hours, she was put on a flight without a transit remand.”
Dharmendra Kumar Meena, deputy commissioner of police (Bengaluru North) said the local police were informed by the Delhi Police team. “It is their case, and they did follow the procedures,” said Meena. “There is no doubt about that.”
‘Mockery Of Legal Procedures’
In a statement, the Campaign for Judicial Accountability and Judicial Reforms, a collective of organisations advocating equitable access to justice, said the Delhi police’s actions were a “complete mockery of the procedures established by law”.
The magistrate in Delhi also violated the guidelines laid down by the Supreme Court in Arnesh Kumar vs State of Bihar (2014), which sought to discourage the practice of magistrates authorising detention “mechanically and casually”.
Among other things, the court had said that before authorising detention, the magistrate must be satisfied that the arrest was legal and record this satisfaction without relying on ipse dixit (a dogmatic and unproven statement) of the police officer.
The Delhi’s magistrate’s order mentions no reason for remand. This has been a prevalent practice with magistrates who’ve abdicated their responsibility of judicial scrutiny, said Kirpal, the Supreme Court advocate.
“They (judges) are supposed to exercise independence and scrutinise the evidence on record produced by the police,” said Kirpal. “By abdicating responsibility, there is no control to check excesses by the police.”
Disha’s arrest is expected to be a harbinger of things to come. Over the past week, the Delhi police raided the houses of two young activists in Maharashtra: one in Mumbai and another in Beed, in the central part of the state.
The two activists were not at home. Mumbai-based advocate Nikita has filed for transit bail in the Maharashtra High Court in Mumbai. “After the filing of FIR by Delhi police, the two anticipated trouble,” said a lawyer from the legal team. “The raids confirmed they were targets.”
(Mohit Rao is a freelance journalist based in Bengaluru.)