After spending nine days in custody for allegedly preparing a “protest toolkit,” 22-year-old climate activist Disha Ravi has been finally released on bail. While granting her bail on Tuesday, 23 February, Additional Sessions Judge Dharmender Rana made several seminal observations on not just the merits of Ravi’s bail application, but also on the law on sedition.
The primary reason behind the grant of bail appears to be the complete lack of evidence connecting Disha Ravi to the violence that took place in the national capital on 26 January. Commenting on the “ornamental opposition” of the Delhi Police to the bail plea, the court said:
“Considering the scanty and sketchy evidence available on record, I do not find any palpable reasons to breach the general rule of ‘Bail’ against a 22-year-old young lady, with absolutely blemish-free criminal antecedents and having firm roots in the society, and send her to jail.”
While the order provides relief to Ravi in her quest for justice, it also reiterates the foundations of a liberal democracy that rests on free speech and the rule of law. The Quint took a deep dive into the order and identified some key takeaways on dissent, democracy, and the law on bail.
1. Violence is the Gravamen of Sedition
While relying on the Supreme Court’s judgment in Kedar Nath v State of Bihar, the court made it amply clear that no act can be termed seditious without evidence connecting it to violence or public disorder.
In the present matter, the Delhi Police tried to link Disha Ravi to the violence that took place on 26 January, but could not cite any evidence to substantiate this claim.
The court took note of the fact that despite arresting and interrogating 150 persons for the 26 January incident, the police could not produce any evidence to show whether these persons were indicted or influenced by Disha Ravi’s actions.
The need to establish a direct link between the speech and the violent act through evidence is something that was overwhelming ignored by the trial courts while adjudicating bail matters in the Delhi riots cases.
For instance, in Devangana Kalita’s bail plea, the court failed to acknowledge the fact that the police produced no evidence to link Kalita’s activism to the riots that broke out in Maujpur.
A similar travesty was also witnessed in the bail plea moved by Jamia student Safoora Zargar, who was denied bail by none other than judge Dharmender Rana himself. However, Zargar was later released on bail on “compassionate grounds” owing to complications in her pregnancy.
2. Dissent is a Sign of Vibrant Democracy
The court has clarified that dissent, disagreement, and even disapprobation, are legitimate means of infusing “objectivity in state policies.” It has hailed an “assertive and aware citizenry,” instead of “indifferent or docile one,” as a sign of “a healthy and vibrant democracy.”
The order argues that anything that puts the government on the defensive can’t be silenced with a charge of sedition. On this point, the court cites a phrase from an old judgment that seems timely in the present political discourse, and if read much into, also appears to be a jibe.
“The offence of sedition cannot be invoked to minister to the wounded vanity of the governments.”
This is important as the Delhi Police’s major catchphrase upon which the entire charge of sedition was based is “defaming the government.” The court has clarified that claims can be exaggerated, or even false, but they can’t be “stigmatised as seditious” unless “they have a tendency to foment violence.”
The court further said that seeking a global audience for one’s dissenting views is protected by one’s fundamental right to free speech under Article 19 of the Constitution, as “there are no geographical barriers on communication.”
The upholding of dissent, of difference of opinion, as part of constitutionally protected free speech is a judicial reasoning that evaded the Madhya Pradesh High Court’s order when it came to Munawar Faruqui’s bail plea.
There, we saw overemphasis on unenforceable fundamental duties instead of protection of what is hailed as the basic structure of our Constitution.
While Faruqui was eventually released on bail by the Supreme Court and so were two of his co-accused on that basis, his associates Sadaqat Khan and Nalin Yadav are still languishing in prison, awaiting the high court to take up their bail plea for hearing.
3. Long-Overdue Questioning of Need for Custodial Interrogation
In order to settle the debate on whether the toolkit is innocuous or not, the court produced the contested section of the document in the order for the public to see.
While doing so, the court clearly highlighted that there is nothing in the toolkit that urges people to commit violence. Since the toolkit was found to be innocuous, aspersions on Ravi’s conduct for creating and deleting a WhatsApp group, or what the police called an “incriminating trail,” became meaningless.
Instead of buying the police’s narrative of “guilty mind,” the court had crucially resorted to deductive judicial reasoning to hold that making or deleting an otherwise legal document is not an offence. Take these lines, for instance:
“... the protest march was duly permitted by the Delhi police therefore there is nothing wrong in co accused Shantanu reaching Delhi to attend the protest march. Still further, the attempt to conceal her identity seems to be nothing more than an anxious effort to stay away from unnecessary controversies.”
This kind of focus on deductive reasoning instead of accepting prosecutorial rhetoric, and giving adequate weightage to the defence’s narrative, have become a rarity in bail adjudication in recent times.
This is especially so when ostensibly serious and draconian provisions such as the Unlawful Activities (Prevention) Act (UAPA) or sedition are invoked.
As witnessed in the remand hearings of Umar Khalid, Natasha Narwal, and Chandrashekhar Azad, trial courts tend to accord disproportionate weightage to the unsubstantiated rhetoric of “seriousness of the offence,” or “critical stage of investigation.”
The denial of bail in these cases seemed mechanical, with an underappreciation of the defence’s arguments, and inadequate questioning of the need for custodial interrogation of the accused.
Unlike these cases, the court in Disha Ravi’s matter chose to contest the need for having custodial interrogation in the absence of cogent evidence. The court questioned the police on the outcomes achieved by depriving the accused of her liberty.
When none appeared, it deemed it fit to deny custody as the only way for securing the accused’s participation in the investigation, saying:
“The applicant accused is already reported to have been interrogated in police custody for almost about five days and placing any further restraint upon her liberty on the basis of general and omnibus accusation would be neither logical nor legal. No specific article, sought to be recovered from the possession of the accused, has been brought to my notice. The resistance to the bail plea seems to be more of ornamental in nature.”
The adjudication by ASJ Dharmender Rana in the present case has refocused the attention of bail jurisprudence to the balanced appreciation of both sides, deductive reasoning, privileging fundamental rights, and evidence-based decision-making.
Instead of arbitrarily exercising discretion to reject bail mechanically, the court has shown how strict adherence to rule of law can be achieved by asking the authorities to back their narrative with evidence, and not rhetoric.
What is waited to be seen is whether this will turn the tide towards the rights-based exercise of discretion in bail matters, or whether it’s just a flash in the pan.