Senior Lawyers On Arrest Process, Sedition LawFebruary 20, 2021
Disha Ravi, a climate activist was arrested by the Delhi police from Bengaluru on Feb. 13 on charges of sedition. Besides sedition and intent to provoke rioting, she has reportedly also been booked for promoting enmity between different groups on grounds of religion, place of birth, race and language and criminal conspiracy.
Soon after, she was presented in front of the Patiala House court in Delhi which ordered her to a five-day police custody. On Friday, she was produced before Additional Chief Metropolitan Magistrate Aakash Jain, who sent her to a three-day judicial custody, legal website Bar and Bench has reported.
As per some of the tweets by the Delhi police, Disha Ravi formed a WhatsApp group and is a key conspirator in the formulation and dissemination of a toolkit document. The police took cognizance of the toolkit document which, according to them, indicated the execution of a conspiracy behind the Jan. 26th violence.
The case has sparked a debate on the manner of Ravi’s arrest, allegations that her lawyer was not informed of which court would be hearing the matter, and the heavy handed use of sedition charges, with retired Supreme Court judge Justice Deepak Gupta among those who said the toolkit does not indicate anything which can qualify as seditious.
BloombergQuint spoke to Senior Advocates Sidharth Luthra, Sanjay Hegde, and Vidhi Centre for Legal Policy’s Alok Prasanna Kumar for their views on applicability of sedition charges in this case and whether due process for arrest was followed.
Irregularity Is Different From Illegality, Says Sidharth Luthra
Once you are arrested, you have to be produced before a magistrate for continuance in police custody or judicial custody remand within 24 hours (excluding travel time). If you cannot be produced before the Magistrate having jurisdiction over the offence alleged within 24 hours, you have to be taken to the nearest magistrate to get transit remand.
While it is desirable that any arrestee be produced before the Magistrate of the area where he/she is arrested, not giving the opportunity to seek transit bail and failure to seek transit remand is not an illegality if produced within 24 hours before the appropriate Magistrate.
In cases where arrest is under a warrant in terms of Section 80-81 of the Code of Criminal Procedure, production before the magistrate of the area where you reside is essential for judicial oversight so that the person has the right to seek transit bail to enable him/her to appear in the court issuing the warrant.
As the police in Delhi arrested her, she had to be brought to Delhi and that can’t be questioned as irregular as having registered a crime in Delhi, the officers of Delhi police can go anywhere in India and arrest somebody provided the conditions for arrest exist.
A person who is arrested has to be informed of their rights. We have to be informed that we have the right to be represented and we have the right to a lawyer.
In the case of the Lady she had the right to contact a lawyer, the right to inform a relative and the relative could have been informed and sought a lawyer when the remand hearing would take place for which she would be represented by a lawyer of her choice.
No Case Of Sedition Is Made Out, Says Alok Prasanna Kumar
The charges of sedition are not made out at all. The Supreme Court has clarified since the 60s that slogans do not amount to sedition unless you can actually point to an instance where they have encouraged actively to take up arms or violence.
On arrest, the Constitution says whenever you are arrested, you have to be produced in front of the nearest magistrate within 24 hours. Sometimes there may be a case where the nearest magistrate is further off. The police cannot say we will decide the magistrate where we want to produce you. That defeats the purpose of Article 22.
Secondly, you cannot ignore the requirement of a lawyer of choice and say I will ignore whatever lawyer you want, take a legal aid lawyer. It is not a case where you are stopping her from committing an imminent illegality. What is the hurry to get her into police custody? Did Disha have a chance to speak to the legal aid lawyer given to her? Did she have a chance to present some sort of a legal argument? That is the second big illegality.
Context Is Important In Determining Sedition, Says Sanjay Hegde
From the publicly available information there is nothing till now which suggests sedition which has a very high bar.
The way the Supreme Court has interpreted it in Kedar Nath and Balbir Singh cases is that the speech must not only cause disaffection but there must be an incitement to immediate violence. The Supreme Court judgment in Balbir Singh case also looks for context because in Balbir Singh, there were two Sikh gentlemen who raised Khalistani slogans and anti-India slogans on the day that Indira Gandhi was shot dead. Despite that, the Supreme Court saw it fit not to convict.
On arrest, the Delhi police seems to have gone on the footing that no transit remand proceedings are necessary in some cases. But those cases also have to be looked at in context. Article 22 of the Constitution says that the person has to be produced in front of the nearest magistrate.
It can be said that any alleged violation of procedure may not ipso-facto take away the brunt of the main case. However, a court which notices the violation of procedure can very well relegate parties back to the situation before the violation. So theoretically in this case, the court could have set her free and directed the Delhi police to take her back home and then follow the procedure.