The Disha Ravi Bail Order: Bailing Out a Falling Democracy?

For any democracy to be functional, the right to dissent and rule of law are indispensable elements — which are overwhelmingly evaporating from the Indian context.

toolkit

22-year-old Bengaluru resident Disha Ravi made headlines when she was accused of being the ‘key conspirator’ in spreading disaffection against Indian state. The Delhi Police, in its FIR, stated that — by seeking help from banned organizations Sikhs for Justice along with other organizations such as Poetic Justice Foundation, and climate activist Greta Thunberg, she created a toolkit for farmer’s protest— a document for disseminating hatred. Following which, they registered an FIR under section 124A (Sedition), Section 120B (Criminal conspiracy), Section 153 (wantonly provoking rioting) and Section 153A (promoting enmity between groups) of the Indian Penal Code, 1860 accusing her involvement in the toolkit to promote disaffection against the country. After spending a total of 6 days in police custody and 3 days in judicial custody, she was finally released on bail on February 23, 2021. The bail order is a silver line as it tries to inculcate the long-lost respect for dissent and right to personal liberty. In this article, the authors deconstruct the different aspects of rule of law, free speech and sedition brought to fore in the bail order.

Decoding the bail order

After extensive argumentation from both sides, Additional sessions judge of Patiala House Sessions Court, Justice Dharmendra Rana granted her bail under Section 439 CrPC, on a personal bond of Rs 1 lakh and two sureties of like amount. Condemning the sketchy and scanty evidence on record, Justice Rana granted her bail primarily because the police failed to establish even a prima facie case of sedition against her. The judge mentions that upon “perusal of the toolkit, any call for any kind of violence is conspicuously absent.” Additionally, he saw no merit in the fact that she edited the toolkit or deleted WhatsApp groups as they are not offences in themselves. Therefore, following the well-known adage ‘bail not jail’, the judge granted her bail respecting the right to disagree with the government.

In our view, this entire episode is a saga of high handedness of the Delhi police with scant regard to the procedural fairness and rule of law. They flouted established procedure by arresting Disha from Bengaluru without producing her before the “nearest magistrate” for obtaining transit remand as per Article 22(2) and Section 57 CrPC.  This contradicted the position established in Arnesh Kumar v. State of Bihar, the Delhi police arrested Disha and produced her directly before Patiala House Sessions Court in New Delhi. The real death knell to due process was the denial of appropriate legal counsel to Disha when her lawyers were not even made privy of the events undergone and she was asked to fight her case through a makeshift government counsel. Additionally, even the magistrate failed to discharge the constitutional duty bestowed upon him under Article 21 and mechanically remanded her to five-day police custody.

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The bail order delivered on February 23, 2021, is being hailed as an application of judicial mind and sound deductive reasoning. The judge critically appreciated the arguments of the defence while simultaneously questioning the need of custodial interrogation. He reinstated that firstly, there was no connection to violence whatsoever, secondly, and after perusing the toolkit he found no objectionable content on either the Ask India Why page or the Genocide Watch page. And even if he were to agree to the content was objectionable, he noted that in no way it could be viewed as seditious. Lastly, he held that in light of the concluded investigation, there was no need to detain her.

Ironically, in June 2020, the same judge had denied bail to Safoora Zargar, a 27-year-old student at Jamia Milia Islamia University, when she was accused of sedition and terrorist activities under the draconian UAPA law. Unlike the previous case, the Court in the present matter took upon itself the task of balancing the rights of the accused and the state and refrained itself from being carried away with the rhetoric of national interest. Even though legally speaking, the charges against the two were different – as Safoora was booked under Section 43D of the UAPA and Disha was not, there was not much difference in the bail procedure. In both cases, there was no conspicuous evidence linking the association of the accused with the conspiracy, but the court treated this causal link differently in both cases. Such differential application indicates that the rule of law is under constant threat in the country, as has also been argued by Bhatia.

Echoing Munshi’s speech against sedition?

The order has also been hailed for its observations against the use of sedition law to stifle dissent and put citizens behind bars, which are worth consideration here. In paragraph 22 of the order, the Court quotes from the judgement in Niharendu Dutt Mazumdar v. Emperor to state that the offence of sedition cannot be invoked to “minister the wounded vanity of governments.” Interestingly, when the question relating to free speech and sedition was being debated in the Constitutional Assembly, K.M. Munshi, one of the strongest advocates in favour of free speech, also quoted the same federal court case. Disha Ravi’s bail order, to the extent that it interprets ‘sedition’ in a manner that limits the scope of seditious activities, finds parallels with Munshi’s objective behind getting sedition removed as an exception to free speech from the Constitution. When Munshi advocated for deletion of the word ‘sedition’ from the Constitution, the intent was to construe sedition in a narrow manner, where only incitement to violence and insurrection were to be penalized. This interpretation of sedition in a narrow sense suggests a triumph of free speech over sedition, a triumph of dissent over the docile citizenry.

The Court goes onto hold that the right to free speech and expression knows no geographical barriers and “includes the right to seek a global audience.” In recognizing the difference of opinion, dissent, divergence and disagreement as legitimate tools of an aware and assertive citizen in a vibrant democracy, the Court affirmed that the right to dissent is firmly enshrined within the right to freedom of speech and expression under Article 19 of the Constitution of India.

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Further, the Court limited the invocation of seditious charges by referring to the Apex Court’s decision in Kedar Nath v. State of Bihar, which penalizes only such activities as would be intended or have a tendency, to create disorder or disturbance of public peace by resort to violence. In this context, the bare assertion of Disha resolving to protest outside Indian embassies against farm laws does not provide enough evidence to show that violence took place pursuant to any of her activities. Yet again, with reference to the ‘Toolkit’, the Court holds that a thorough perusal of the same does not indicate any call for violence and thus, Disha Ravi cannot be charged under Sedition as per the interpretation of the Court.

This order comes at a time when the rights to free speech and protest are being eroded and mauled every day. For any democracy to be functional, the right to dissent and rule of law are indispensable elements — which are overwhelmingly evaporating from the Indian context. While Safoora Zargar’s case came as a shock to advocates of free speech, Disha Ravi’s bail order reinstates that Munshi’s efforts in the Constitutional Assembly were not in vain and finds its remnants in court decisions even after seven decades of independence. The fundamental right to free speech of citizens, “the conscience keepers of government in any democratic nation”, must continue to triumph against “the wounded vanity of its governments” and, only then can we call ourselves “a healthy and vibrant democracy.”

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