Improper Arrest, Unethical Leaks: Rebecca John on Disha Ravi Case

Senior advocate explains problems with conduct of Delhi Police, the magistrate who granted remand, and the media.

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“Ultimately, a person’s liberty is at stake. And therefore we can’t take these things lightly, we must ensure that both judicially as well as from the point of view of the investigating agency, these errors are not repeated in the future.”

Senior advocate Rebecca John had strong words for the Delhi Police, the magistrate’s court and even the media, for their conduct over the arrest of 21-year-old climate activist Disha Ravi.

The veteran lawyer, one of India’s foremost criminal law experts and practitioners, spoke to The Quint about the legalities of the arrest, the flaws with the hearing where Ravi was sent to five days’ police custody, and how selective leaks to the media by the police violate Ravi’s right to a fair trial.

She also explained what the police would have to prove to make a case for sedition, which is the key accusation against Ravi and others – and why a protest ‘toolkit’ in itself would not be enough for this.

Arrest Was Not Illegal, But Improper

“If you ask me whether the actions of the Delhi Police were illegal, I will categorically say no. But was it improper? Yes,” John explained.

She noted that while the Delhi Police were not obligated under the Code of Criminal Procedure to obtain a transit remand order from Bengaluru where they arrested Ravi, there were no good reasons not to do so.

“In that, it is in breach of the guidelines that a division bench of the Delhi High Court itself issued in 2019 in a case called Sandeep Kumar vs State,” John argues.

The high court had recognised the need for certain specific safeguards, including the right to “consult” one’s lawyer before being taken out of the state and the right to a lawyer of one’s choice. As a result, it had held that the Delhi Police should obtain transit remand ‘unless the exigencies of the situation warrant otherwise.’

The magistrate who issues a transit remand order would normally see if these safeguards were met, and apply their mind to make sure the person isn’t taken away by police from another state, not do so mechanically.

The Delhi Police’s failure to produce Ravi before a local magistrate in Bengaluru stripped away this whole process, according to John.

Why Didn’t Magistrate Ask Questions About Legal Representation?

“When the magistrate is performing judicial functions, the order must reflect application of judicial mind,” John says, referring to previous judgments of the Supreme Court and the high courts. One of the facets of that application of mind, was to ascertain whether Ravi had a lawyer of choice present at the remand hearing.

However, similar to what happened with Mandeep Punia a week before, the lawyers for Disha Ravi don’t appear to have been given the correct information by the Delhi Police about where she was going to be produced – and the magistrate did not question the police about this.

“I am deeply perturbed by these daily violations of constitutional mandates and the Code of Criminal Procedure. Due care and caution must be taken from the side of the police and from the side of the remanding court, that the counsel of choice (for the accused) is informed of the time and place when the production takes place.”
Senior advocate Rebecca John

‘Completely Unethical’ Leaks to Media

John also took strong exception to the way in which the Delhi Police had begun selectively leaking information to the media about their interrogation of Ravi, noting the Delhi High Court had already held this was impermissible in connection with Devangana Kalita’s case.

She also noted that the Bombay High Court had also recently observed in their judgment on media coverage of the Sushant Singh Rajput death case that these kind of media trials, based on leaks, can prejudice the right to a fair trial for an accused person.

“I would actually request media houses to be a little circumspect when they are putting out tweets and statements on behalf of an investigating agency, it’s only one side of the story. If you are going to colour the space with just one side of the story, you are perpetrating a very, very deep wrong on an accused person who has yet to face a charge sheet, who has yet to face a trial, who has yet to be pronounced guilty by a court of law.”
Senior advocate Rebecca John

John believes that what is happening at this time is “completely unethical” and both the police and media have to be careful to avoid making these errors.

‘In Order to Invoke Section 124A (Sedition), You Have to Show Something More Than a Toolkit’

While John refrained from going into the merits of the case, she did explain that for the legal provisions on sedition to apply, a very high bar has to be met.

“The law on sedition is very clear. And that law was laid down back in the 1960s when a Constitution Bench judgment of the Supreme Court pronounced for anyone who is willing to read that judgment that unless the act is accompanied by violence or there is a propensity to cause violence, it is not seditious.”

She harked back to the 1990s, when the Supreme Court dealt with a number of cases from Punjab regarding pro-Khalistani statements, some even seemingly anti-India – but even these were not found to be seditious, no matter how unpalatable.

Given the need for establishing a “deep connection” with violence, John queried how sustainable the allegations of sedition were on the basis of the creation of a protest toolkit. “What is the connection between the toolkit and what happened on the 26 January?”

She said the police would have to have some tangible evidence to link the toolkit to the violence which took place in Delhi on Republic Day, and warned that despite many such tall claims, most such cases by the police failed in court.

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