There are a lot of things that one can say are wrong with the arrest of Jignesh Mevani.
Critics of the ruling government are being silenced. The prime minister is being treated like a monarch who cannot be critiqued, as though we have a lèse-majesté rule for Narendra Modi. Police in the Bharatiya Janata Party (BJP)-ruled states are deliberately using heavy-handed cross-border arrests to create a chilling effect.
All of these may be true, but in themselves they won't help Mevani get out of the situation he is in. With the Congress party saying they will move the courts, including the Gauhati High Court, next week to secure his release, the focus now shifts to the legal remedies that could help the independent MLA from Gujarat.
Those legal remedies – whether quashing of the First Information Report (FIR) or bail – require us to examine whether there was anything legally wrong with the arrest of Mevani and the Kokrajhar magistrate's decision to remand him to three days of police custody.
Fortunately for Mevani, there are a lot of things that a reasonable judge would find to be out of place, which should at the very least mean his release on bail, and which could even be used to quash the case against him.
One Thing Not Wrong With Jignesh Mevani's Arrest
First, a clarification about something that is actually not wrong with the Vadgam MLA's arrest. It has been suggested by some of his supporters and in some corners of social media that as an elected MLA, Mevani could only be arrested after permission had been taken from the Speaker of the Gujarat Legislative Assembly.
This is not true.
Yes, legislators, whether in Parliament or state legislative assemblies, have a number of parliamentary privileges.
These include protection from arrest in civil proceedings during sessions of their legislature, or when committees they are part of are meeting – which extends 40 days before and after such sessions/meetings.
However, there is no such protection from arrest in criminal matters, as explained in the Rajya Sabha's manual on parliamentary privileges.
The permission of the speaker/chairperson of the house they are part of is only to be taken when an arrest is sought to be made from inside the Assembly premises.
If a legislator is being arrested from somewhere outside, the court where they are produced needs to inform the speaker/chairperson that such an arrest has been made, why it has been made, and where the legislator is in custody.
Violation of Supreme Court Guidelines & Code of Criminal Procedure
Now on to the actual legal wrongs. Before we get into the merits of the FIR, we have to look at whether there was anything wrong with the procedure followed by the Assam Police from Kokrajhar police station.
A very obvious problem here is that the Assam Police did not comply with the Code of Criminal Procedure (CrPC) when it comes to cases like this, as clarified by the Supreme Court of India in the landmark 2014 Arnesh Kumar judgment.
Basically, where a person has been accused of offences where the maximum punishment is seven years' imprisonment or less, the police should first follow the process under Section 41A of the CrPC, that is, sending them a notice and asking them to answer their questions and cooperate with the investigation.
According to Section 41 of the CrPC, the police should only arrest such a person if this is necessary:
to prevent them from committing a further offence;
for proper investigation of the offence;
to prevent them from tampering with evidence;
to prevent them from threatening/influencing witnesses;
to prevent them from absconding
In Mevani's case, the most serious offences in the FIR against him are Sections 153A and 295A of the Indian Penal Code. The maximum punishment for these offences is three years' imprisonment (an aggravated form of section 295A is punishable with up to five years in jail), that is, less than seven years.
It is also clear that none of the preconditions in Section 41 applied here. Mevani is an elected MLA, so there is little chance of him absconding. The offence relates to a tweet sent by him, so there is no question of threatening/influencing witnesses, and since tweets can't be edited, there's no question of tampering with witnesses.
As a result, the police in Kokrajhar, Assam, should have first sent Mevani a notice under Section 41A before going to dramatically arrest him on Wednesday night.
The failure to follow this procedure should in fact have been noted by the magistrate before whom Mevani was produced in Kokrajhar, who not only failed to take note, but sent the MLA to three days' police custody.
"If the arrest effected by the police officer does not satisfy the requirements of Section 41 of the code, magistrate is duty-bound not to authorise his further detention and release the accused," the Supreme Court had held in the Arnesh Kumar judgment.
This provides clear grounds for Mevani to be granted bail, whether by the sessions court, or on an interim basis by the high court while hearing a quashing case.
How Are the Offences in the FIR Justified?
The FIR registered against Mevani on 19 April, based on a complaint by local BJP member Arup Kumar Dey, has been registered under the following sections of the IPC:
Section 153A (spreading enmity/hatred between different communities);
Section 295A (outraging religious sentiments);
Section 504 (intentional insult to provoke breach of peace);
Section 505 (statements amounting to public mischief).
In his complaint, Dey took exception to a tweet dated 18 April by Mevani, in which it was written:
“Godse ko apna aradhya manne wale pradhanmantri Narendra Modi 20 tarikh se Gujarat daure pe hai, unse appeal hai ki Gujarat me Himmatnagar, Khambat aur Veraval me jo kaumi hadse huye hai uske khilaf shanti aur aman ka appeak kare. Mahatma mandir ke nirmata se itni ummid to banti hai.”
(Prime Minister Narendra Modi who worships Godse is set to visit Gujarat from 20th. I appeal to him to appeal for peace and brotherhood in Himmatnagar, Khambat and Veraval that recently saw communal tension. I hope this much can be expected of someone who built Mahatma Mandir).
According to Dey's complaint, this tweet
"has caused widespread criticism and has the propensity to disturb public tranquility, prejudicial to maintenance of harmony among a certain section of people. It is more likely to incite a section of the masses belonging to a certain community to commit any offence against other community and as such has the tendency to destroy the social fabric of different communities residing in this part of the country. The tweet may cause disaffection towards a particular community and in all probability is sure to promote enmity or hatred towards different communities, detrimental to peace and harmony of the common masses. It is suspected that there may be some unseen hands trying to capitalise on such sensitive issues to disturb the unity, peace and brotherhood."
In an interview with NDTV, Dey gave the game away about what this complaint was really about, that BJP members "will not tolerate" negative comments about the prime minister, and that this complaint was meant to send a message to anyone, even a legislator, who criticises him.
Regardless of this 'real' reason for his complaint, the police evidently failed to apply their mind when looking at the complaint.
Mevani's tweet in no way incites any community against the other, only noting that there had been communal incidents in Gujarat's Himmatnagar, Khambat and Veraval, and asking the prime minister to appeal for peace there.
How asking the prime minister to appeal for peace over communal incidents amounts to inciting enmity between communities is entirely unclear. Any reasonable person would see that none of Sections 153A, 504 or 505 – all of which deal with incitement and causing breach of peace – apply here.
There has also been no violence or unrest in the region, meaning the tweet has not had any effect on the populace. As the offences in question here are restrictions on the right to freedom of speech, they have to be construed in light of the grounds for reasonable restrictions in Article 19(2) of the Constitution, the relevant one here being public order.
Public order offences require a high threshold to be met, so even if one is to make the ludicrous assumption that this tweet could be considered inflammatory, it did not have any such effect, which has been held to be relevant in cases like this by the Supreme Court in the past.
While these provisions do also cover speech with a tendency to cause unrest, there is absolutely nothing in the tweet which encourages violence or spreads any rumours about one community, so there is no question of this aspect of the law applying here either.
What one is left with is Section 295A of the IPC, which deals with "deliberate and malicious" insults against a religion or religious beliefs.
According to news agency ANI, police sources told them that this is the "primary offence" committed by Mevani, that he "is insulting the sentiments of religion, through his tweets wherein he equated Nathuram Godse to Devata (God)."
NOTE: The Quint has tried to reach out to police officers in the Kokrajhar police station to confirm this statement but they were not reachable even on phone numbers put up by the Assam Police.
This is even more bizarre than the claims in the complaint about inciting violence, as Mevani has not equated Nathuram Godse to a god, and instead made a political comment about the prime minister's ideology.
Even if it is argued that this is a misleading statement about Narendra Modi's ideology, this would not be grounds for an offence under Section 295A of the IPC, as there is no insult to the religious beliefs of any class of persons as required by the provision.
Misuse of Criminal Law?
It seems quite obvious that this is a misuse of criminal law to harass a political opponent of the BJP, and given the complete baselessness of the FIR, it is likely to get quashed by the Gauhati High Court or the Supreme Court.
“... 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.”
It should be noted though that even the higher judiciary may not be willing to quash the FIR at this early a stage – even though it is clearly baseless – and allow the police some chance to investigate.
While the matter is still likely to be quashed further down the line, as was seen with Vinod Dua's case, for instance, the courts should ensure that the accused is released on an interim basis till the quashing petition can be finally decided.
As the Supreme Court noted in its Arnab Goswami judgment, it is a duty of the high court to ensure even at an interim stage that the accused be set free if the prima facie ingredients of the case are not made out, as is very much the case here.
The Assam Police should also perhaps have looked to the way in which the Supreme Court has come down on the Tripura Police for their frivolous FIRs against journalists and activists who had tweeted about the communal violence that took place there in October 2021.
The apex court had stayed any action or investigation by the Tripura Police in multiple cases, and told the Tripura government to "Stop harassing people like this" for their social media posts. The top court had even said that the Section 41A notices sent to some of the accused in these cases should not be complied with, let alone interfere with arrests.
Keeping all these things in mind, it is clear that the Assam Police has not only registered an FIR against Mevani without applying their mind, the FIR is likely to be quashed because the offences in it are not made out. Mevani should be able to not only secure bail, but also get an interim order from the Gauhati High Court or Supreme Court staying any further action, while ensuring his release if necessary.