The Delhi Police‘s arrest of climate activist Disha Ravi has already become controversial, not just because of the dubious grounds on which she is being accused of a criminal offence, but also over the actions of the police force and the magistrate before whom she was produced.
From arresting the 21-year-old activist from Bengaluru without obtaining a transit remand order, to the Delhi magistrate’s decision to send her to five days of police custody, there are serious questions to be asked about whether legal procedures were appropriately followed.
Moreover, the Delhi Police’s attempts to spin a narrative about Ravi through their tweets and now selective leaks to the media appear to contradict recent orders of the Delhi and Bombay High Courts.
Here are some of the key issues which could end up becoming material to legal proceedings going forward.
Questions Over Arrest
1. Why did the Delhi Police not obtain a transit remand order for Ravi’s arrest?
Given that Ravi was arrested in Bengaluru and not Delhi, one of the first questions raised about her arrest was that the Delhi Police had failed to obtain a transit remand order from a local court there to take her out of Karnataka and bring her to Delhi.
The concept of transit remand comes from the fact that under Article 22(2) of the Constitution has to be produced before the “nearest Magistrate” within 24 hours.
Obtaining a transit remand order is not compulsory under the Code of Criminal Procedure. However, in a 2019 judgment, the Delhi High Court had laid down a number of guidelines for the Delhi Police to follow in cases of inter-state arrest, which includes:
“Endeavor should be made to obtain transit remand after producing the arrestee before the nearest Magistrate unless exigencies of the situation warrant otherwise and the person can be produced before the Magistrate having jurisdiction of the case without infringing the mandate of S. 56 and 57 of Cr.P.C. within 24 hours.(emphasis added)
It is unclear what the exigencies in the current situation were which prevented the Delhi Police from taking Ravi before a magistrate in Bengaluru, given they claim to have been in contact with the local police and informed them of their plans.
The issue of transit remand is important because this forms a first line of defence, before someone is taken away from their home to a new city by the police, for scrutiny of the police case, and to ensure that all procedures were complied with.
These including allowing the arrested person a chance to “consult” their lawyer before being taken out of the state, as per the Delhi High Court guidelines. In this case, the Delhi Police have only said that they informed Ravi’s lawyer about her arrest – informing and consulting are quite different, making a key question for the magistrate considering whether to allow transit remand or not.
2. Was there a need to arrest Ravi over her involvement as an ‘editor’ of the Google document toolkit?
According to the Delhi Police’s press release dated 15 February, a team from the Special Cell was sent to Bengaluru to question Disha, and was “able to extract highly incriminating information” from her phone. This information supposedly
“made it clear that Disha, along with her colleagues, Shantanu and Nikita Jacob, created and sent the Toolkit Google document to others. Disha, who is associated with the environmental movement called Fridays for Future, sent the Toolkit document to Greta Thunberg on Telegram and also coaxed her to act on it.”
Because of this and the fact that Ravi deleted the WhatsApp group where some of these discussions were held, the police decided to arrest her, according to the press release.
However, the claim in the police’s FIR regarding the toolkit is that it was an offence under Sections 124A (sedition), 153 (incitement to riots) and 153A (incitement of hatred between communities). To conduct an arrest for the same, they have to have “credible information” that the person being arrested committed these offences.
The Supreme Court has held on multiple occasions that there has to be a direct link between the alleged statement/action of an accused person in these cases, and some violence which has then taken place as a result.
Even the Delhi Police press release makes no mention of such a link between the violence on 26 January and the contents of the toolkit, which indeed only talk about lawful forms of protest, including social media campaigns. The revelations from the “incriminating information” as described by the police say nothing about violence either.
According to them:
“The main aim of the toolkit was to create misinformation and disaffection against the lawfully enacted government. The Toolkit sought to artificially amplify the fake news and other falsehoods and also sought to precipitate action on 26th January, i.e. India’s Republic Day.”
Disaffection without incitement of violence is not sedition – the Supreme Court has even held in the Balwant Singh case that shouting slogans like ‘Khalistan Zindabad’ would not be sedition without a link to any violence.
The “action” sought to be precipitated according to the toolkit is not anywhere in the toolkit stated to include any sort of violence, which would mean that the tests laid down by the apex court in the Kedar Nath Singh judgment are not fulfilled either.
Question Over Remand Hearing
3. Why was Disha Ravi not represented by a lawyer of her choice during the remand hearing?
The Delhi Police have claimed in their press release that Ravi was represented by a lawyer at the hearing before a Patiala House court magistrate on Sunday, 14 February. However, this was a legal aid lawyer, not the lawyers who were representing her.
Article 22(1) says that every person arrested has the right to be defended by a “legal practitioner of his choice”. The Delhi Police were aware of who Ravi’s lawyer was supposed to be, having informed them of her arrest.
And yet, the lawyers have claimed that they were not provided with the details of the remand hearing and where it would be on Sunday, despite requests from them.
Having checked the duty rosters of the Delhi courts, they had actually gone to another court in Delhi where they expected Ravi to be produced, only to realise from news reports that Ravi was being produced in Patiala House.
It is unclear why the lawyers who were Ravi’s choice (as the police were well aware), were not informed of the location of the remand hearing.
A similar incident recently happened with journalist Mandeep Punia, senior advocate Rebecca John informed The Quint, where his lawyers were told he would be produced in the Rohini courts, only for the authorities to decide to produce him for a remand hearing in the Tihar Jail court itself.
4. Why did the magistrate order five days of police custody?
It is well established in judgments of the Supreme Court and various high courts that magistrates are not required to pass remand orders in a mechanical way, and have to actually peruse the case diary, arrest memo and FIR to see if there is a genuine case against the accused.
This cannot of course be an in-depth inquiry and assessment of evidence, which is what would happen at trial, but it is not to be an eyewash either. Indeed, the Supreme Court in the Arnab Goswami case recently confirmed that it is the duty of courts at every level to scrutinise the FIRs and the police’s materials against an accused to see if an offence is actually made out.
“... it is the duty of courts across the spectrum – the district judiciary, the High Courts and the Supreme Court – to ensure that the criminal law does not become a weapon for the selective harassment of citizens.”Supreme Court in detailed judgment granting interim bail to Arnab Goswami
This doesn’t mean quashing the police’s investigation or stopping them from exploring all possible avenues – however, it does mean ensuring that a person’s liberty is not taken away unless there is enough material.
As discussed earlier, however, even from the Delhi Police’s own press release, there does not appear to be enough material to justify their claims that Ravi has committed the extremely serious offences under the FIR.
Even the Zoom meeting which Ravi allegedly attended where the toolkit was discussed along with the foreign organisation Poetic Justice Foundation, which the Delhi Police allege to have Khalistani links, is not enough to justify these charges unless a plan was made at the meeting to incite violence – which is not alleged.
The lack of legal representation for Ravi of her own choice should have been of even greater concern to the magistrate in this case in the circumstances – and yet the magistrate allowed remand for police custody for five days.
Questions Over Delhi Police’s Statements and Leaks to the Media
5. Why is the Delhi Police putting out tweets about an ongoing investigation and selectively leaking information to the media?
On 14 February itself, the Delhi Police put out a series of tweets through their official handle seeking to justify the arrest of Disha Ravi, which had drawn severe criticism.
The tweets state that Ravi is a “conspirator” and “collaborated with pro Khalistani Poetic Justice Foundation to spread disaffection against the Indian State.”
The Delhi Police also leaked information about their questioning of Ravi to media outlets like News 18, which ran bulletins about how Ravi had admitted to certain things after initially not telling the truth.
This narrative should never have been pushed out in public without qualifying information to indicate that Ravi has not yet been convicted in a court of law of any of these claims, as this affects the presumption of innocence and right to a fair trial.
The Delhi Police have already been hauled up by the Delhi High Court for this kind of behaviour before, over its press releases regarding Pinjra Tod member Devangana Kalita, accused by them in the Delhi riots conspiracy case. The high court had held there that:
“Selective disclosure of information calculated to sway the public opinion to believe that an accused is guilty of the alleged offence; to use electronic or other media to run a campaign to besmirch the reputation or credibility of the person concerned; and to make questionable claims of solving cases and apprehending the guilty while the investigations are at a nascent stage, would clearly be impermissible.”
The high court noted that this not only prejudiced the accused’s right to a fair trial, but also may have the effect of “stripping the person involved of his/her dignity or subjecting him/or her to avoidable ignominy.” The right to dignity, of course, is well settled to be part of the right to life under Article 21 of the Constitution.
6. Why are media houses reporting the Delhi Police’s narrative without qualification?
The spreading of this kind of “impermissible” narrative is not just the fault of the police, but the media houses putting them out without any of the necessary qualifiers.
The Bombay High Court recently passed a judgment on this after the way in which the media covered the death of actor Sushant Singh Rajput and hounded his former girlfriend, actor Rhea Chakraborty.
The guidelines laid down by the high court state that the media should present information which can cause prejudice to an ongoing inquiry or investigation and the right to a fair trial, including...
“... publishing a confession allegedly made to a police officer by an accused and trying to make the public believe that the same is a piece of evidence which is admissible before a Court and there is no reason for the Court not to act upon it, without letting the public know the nitty-gritty of the Evidence Act, 1872;”
“... indulging in character assassination of any individual and thereby mar his reputation.”
The coverage of the leaks from the police about Ravi by media channels clearly goes against these guidelines. Which, following the Bombay High Court’s judgment, can be considered contempt of court, as it interferes with the administration of justice.