Arrested climate activist Disha Ravi, who was granted bail by the Patiala House Court on Tuesday, 23 February, in the Delhi Police’s ‘toolkit’ case, has been released from Delhi's Tihar jail, reported ANI, quoting a jail official.
Additional Sessions Judge Dharmender Rana had heard detailed arguments on Saturday, 20 February, both sides on whether or not Ravi should be granted bail. Having reviewed the material and arguments, he held that:
“Considering the scanty and sketchy evidence on record, I do not find any palpable reason to breach the general rule of ‘Bail’ against a 22 years old young lady, with absolutely blemish free criminal antecedents and having firm roots in the society, and send her to jail.”
Ravi has been directed to furnish two sureties of Rs 1 lakh each for her release. Agarwal tried to argue for this to be reduced as her family is not of means and pointing out that he was handling the case pro bono. However, the court denied this request.
She has also been directed to cooperate with the Delhi Police’s investigation, and is not to leave the country, which are standard bail conditions.
Judge’s Observations on Police’s ‘Evidence’
After summarising the key contentions of the parties, the judge states that: “The nub of the issue is whether applicant/accused Disha was merely involved in peaceful protest and dissent against the farm acts or she was actually involved in seditious activities under the guise of protesting against the said legislation.”
Referring to the Supreme Court’s landmark Kedar Nath Singh judgment on sedition, he then points out that ‘violence’ is essential to satisfy an accusation of sedition under Section 124A of the IPC.
As conceded by Additional Solicitor General SV Raju, there is no direct evidence to establish the link between Ravi and the violence which took place in Delhi on 26 January. At the same time, the Delhi Police claim that the ‘circumstances’ showed there was a ‘larger conspiracy’ to perpetuate violence by secessionist forces.
However, the judge notes that the Bombay High Court has previously held that “conspiracy cannot be proved merely on the basis of inferences. The inferences have to be backed by evidence.”
As a result, he then goes through all the material collected by the Delhi Police against Ravi to see if it substantiates the allegations of a larger conspiracy.
Alleged Engagement with Poetic Justice Foundation (PJF), Which Police Call Khalistani
After noting that the authorities admitted that PJF is not a banned organization and there is no criminal action pending against its founders Mo Dhaliwal and Anita Lal, the judge notes there is nothing on record to establish a direct link between Ravi and Dhaliwal or Lal.
“In the absence of any evidence to the effect that the applicant/accused agreed or shared a common purpose to cause violence on 26.01.2021 with the founders of PJF, it cannot be presumed by resorting to surmises or conjectures that she also supported the secessionist tendencies or the violence caused on 26.01.2021, simply because she shared a platform with people, who have gathered to oppose the legislation.”
The judge observed that there “is not even an iota of evidence brought to my notice connecting the perpetrators of the violence on [Republic Day] with PJF or [Disha Ravi]”. This was so despite the interrogations of hundreds of arrested for actually being part of the violence.
Alleged Engagement With Banned Organisation Sikhs For Justice
Despite the Delhi Police’s arguments about how Sikhs For Justice offered a reward for anyone who will hoist a Khalistani flag at India Gate on Republic Day, the judge found that:
“There is absolutely no link established on record between the applicant/accused and the said banned organization.”
Alleged Involvement with Kisaan Ekta.co, Based in Vancouver, Through Extinction Rebellion
“It has neither been averred nor proved that Kisaan Ekta.co is an organization with seditious agenda.”
The Use of the Toolkit
After referring to the ‘Prior Actions’ section of the toolkit submitted by the Delhi Police, judge Rana notes that “any call for any kind of violence is conspicuously absent.”
Stating that citizens are “conscience keepers” of the government in a democracy, he says they “cannot be put behind the bars simply because they choose to disagree with the State policies.”
“The offence of sedition cannot be invoked to minister to the wounded vanity of the governments. (Niharendu Dutt Mazumdar v. Emperor AIR 1942 FC22).”
The judge says that disagreement, dissent and even disapprobation are “legitimate tools to infuse objectivity in state policies”, and that an aware and assertive citizenry is a sign of a healthy and vibrant democracy.
Citing the right to dissent under the right to freedom of speech in Article 19 of the Constitution, the judge says that there is nothing wrong with communicating this dissent abroad as well.
“A Citizen has the fundamental rights to use the best means of imparting and receiving communication, as long as the same is permissible under the four corners of law and as such have access to audience abroad. Reliance is placed upon Secretary, Ministry of I&B v. Cricket Association of Bengal (1995) 2 SCC 161.”
Hyperlinks in Toolkit to Malign India
The Delhi Police had cited hyperlinks in the Toolkit to webpages on the sites of Ask India Why and Genocide Watch to argue the seditious intent behind it.
The judge found “absolutely nothing objectionable” with the page submitted from askindiawhy.com submitted by the police.
As for Genocide Watch’s material, while the judge said that he found them objectionable, he could not agree that they were seditions.
“The imputations may be false, exaggerated or even with a mischievous intent but the same cannot be stigmatized being seditious unless they have tendency to foment violence.”
To support this view, the judge noted a 1989 Supreme Court judgment in the Balbir Singh Sainia case, where a pamphlet on ‘Atrocities of Army on students’ was found to not be seditious as it did not incite any violence.
Allegations About Disha Ravi’s Conduct
The Delhi Police listed several aspects of Ravi’s conduct, from creation and deletion of a WhatsApp group to reaching out to Greta Thunberg for support, to trying to conceal her identity, to impute criminal motives to her. However, the judge held that:
“In my considered opinion creation of a WhatsApp group or being editor of an innocuous Toolkit is not an offence. Further, since the link with the said toolkit or PJF has not been found to be objectionable, mere deletion of the WhatsApp chat to destroy the evidence linking her with the toolkit and PJF also becomes meaningless.”
As the Delhi Police had given permission for the farmers’ protests in Delhi, the judge held that the arrival of Shantanu Mukul in Delhi was not illegal. Ravi’s attempt to conceal her identity, he notes, “seems to be nothing more than an anxious effort to stay away from unnecessary controversies.”
Judge Rana also found that the police had failed to point out how Ravi’s forwarding of the toolkit to Greta Thunberg gave a global audience to ‘secessionist elements’ anc could therefore be considered a crime. He also found no evidence had been submitted to him to prove that any violence took place at any Indian Embassies.
Keeping Ravi in Jail is Neither Logical nor Legal
Judge Rana noted that it is difficult for the police to collect evidence of a conspiracy, “but I’m equally conscious of the fact that what is difficult to prove for the prosecution in the affirmative is virtually impossible for the defence to prove in the negative.”
He also recognised that the investigation was at an early stage and the police were still collecting evidence,
“however, the investigating agency made a conscious choice to arrest the applicant accused upon the strength of material so far collected and now they cannot be permitted to further restrict the liberty of a citizen on the basis of propitious anticipations.”
The judge also rejected the prosecution’s final argument against bail: that they wanted to confront Nikita Jacob and Shantanu Mukul with Ravi when they came to Delhi. However, the judge said that there is no rule of law or prudence, that a person had to be kept in custody to do so.
“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.”
Observing that the police fail to have brought to his notice anything recovered from Ravi’s possession furthering their case, judge Rana held that the
“resistance to the bail plea seems to be more of ornamental in nature,” (sic)
Background to the Order
Ravi was arrested from Bengaluru on 13 February for allegedly editing and sharing a ‘toolkit’ related to the farmers’ protest on social media. She was kept in police custody for five days, sent to judicial custody, and then sent back to police custody for a day.
With the police custody ending on Tuesday, Ravi was also produced before a magistrate in the same court for a remand hearing. Upon being told that judge Rana had granted her bail, the magistrate said that he will dispose of the matter.
In the FIR under which she was arrested, the Delhi Police claims the toolkit was linked to Khalistani elements and was part of a conspiracy to “wage an economic, social, cultural, and regional war against India.” They argue that the toolkit was used to incite the violence which took place in Delhi on 26 January 2021.
Additional Solicitor General SV Raju led the arguments for the government and Delhi Police during the hearing on Saturday. He argued that while the toolkit itself did not incite violence, it was a facade and was meant to stoke unrest and defame India.
Ravi’s lawyer, senior advocate Siddharth Agarwal had argued that there was “no evidence to link Disha Ravi with Sikhs For Justice, a banned organisation.”
The defence counsel further said, “Nobody arrested in connection with the Red Fort violence has said that he was inspired by the toolkit. No evidence to show that the toolkit is responsible for violence during the farmers' march (sic).”
Agarwal further went on to argue that despite keeping Ravi in custody for five days, the police did not take her to Bengaluru even once for recovery of evidence. He emphasised the point that merely having an opinion that is different from that of the government cannot be a ground for sedition.
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