'Toolkit' case: Judge Rana's stern castigation of Delhi Police in Disha Ravi's arrest points to flaws in action against her
Disha's arrest itself raises a host of questions – both with regard to the manner in which the Delhi Police picked her up from her home in Bengaluru and the charges levelled against her.
Ten days after being picked up by the Delhi Police, on 13 February, and after having spent the following days in custody, climate activist Disha Ravi walked out of jail on 23 February. She was finally granted bail by a Delhi sessions court on Wednesday.
Disha’s arrest itself raises a host of questions – both with regard to the manner in which the Delhi Police picked her up from her home in Bengaluru and the charges levelled against her. But before we get to those and a number of matters that have cropped up in the past 10 days, it is worth citing what Additional Sessions Judge Dharmender Rana said while granting bail.
First, Judge Rana said that 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 lady, with absolutely blemish-free criminal antecedents and having firm roots in the society and send her to jail’. This part of the bail order practically sums up the quixotry involved in Disha’s arrest.
The charges against Disha include sedition, criminal conspiracy, intent to provoke rioting and promoting enmity between groups, under various sections of the Indian Penal Code. The singular action that provoked these charges was that she edited a ‘toolkit’, which to a Luddite like this commentator sounds like what is called outside the cyberworld a ‘manual’. Apparently, large numbers of toolkits are made and circulated over the Internet for various purposes all the time.
The toolkit that Disha edited was not created by her. Nevertheless, its purpose was to provide information about the farmers’ strike to a global audience. It came into prominence after Disha sent it to Thunberg, who tweeted it. It was from that point on that Disha got embroiled in the case. So, what is this toolkit all about?
The toolkit says: ‘This is a document meant to enable anyone unfamiliar with the ongoing farmers’ protests in India to better understand the situation and make decisions on how to support the farmers based on their own analysis.’ It goes on to talk about the situation of farmers in India and the recent agriculture laws. ‘Instead of being supported to become self-reliant and prosperous, a majority of farmers are increasingly being subjected to the control of large corporations and international institutions whose sole focus is profits, and necessarily involves increased exploitation of nature,’ the toolkit says, and lists actions one can take to support the farmers’ protests.
The Delhi Police, however, says that the toolkit was circulated over the Net to tarnish India’s image and that its production in part involved a Zoom meeting attended by around 70 people that was organised by the allegedly pro-Khalistan Poetic Justice Foundation (PJF). About the toolkit itself, however, whatever the police have had to say appears to have a curiously, though not unexpectedly, vacuous ring to it. For instance, it is unclear what ‘tarnishing India’s image’ means or involves and whether it is a crime at all.
Delhi Police JCP (Cyber Crime) Prem Nath had said on 15 February, "On February 4, while monitoring social media we came across a Google document titled toolkit on Twitter. Initial investigation of this toolkit document reveals that it was created by pro-Khalistani group named Poetic Justice Foundation and people associated with it. … One portion of the toolkit document mentions action points and then prior actions, as you are aware there was a digital strike through a hashtag on January 26 and earlier tweets storm on January 23 onwards and physical action on January 26 and entering Delhi for Kisan rally and return back to the border."
The time-bound action points and the programme given in the toolkit when viewed in the context of actual developments in Delhi clearly showed the action plan that was formulated in the toolkit was implemented on the ground or executed in a copycat manner, the official added.
The second part of the toolkit, it was said, spoke of targeting Indian embassies and disrupting India’s cultural heritage. The Delhi Police’s entire characterisation of the toolkit is of a piece with this meaningless claim. Disha herself put it in the right context. In one of her many court appearances for remand or bail, she had said, ‘If highlighting farmers’ protest globally is sedition, I am better [off] in jail.’ She then pointed out through her lawyer that: ‘The Delhi police gave permission for the farmers’ march, which they’re claiming that I asked people to join, so how did I become seditious?’
Nothing that the Delhi Police has so far adduced as evidence against Disha, it appears, amounts to a row of beans. Yet, she was incarcerated for 10 days, sent to remand a number of times and had to attend bail hearings several times before Judge Rana freed her, with an excoriation of the police that was as welcome as it was apropos. ‘The offence of sedition cannot be invoked to minister to the wounded vanity of governments,’ Judge Rana said. ‘Creation of a WhatsApp group or being editor of an innocuous toolkit is not an offence. Further, since the link with the said toolkit … has not been found to be objectionable, mere deletion of the WhatsApp chat destroys the evidence linking her with the toolkit … also becomes meaningless.’
Though the judge said nothing in his order would have any bearing on the merits of the case, he effectively dismissed all the Delhi Police’s charges. Thus, the police said she had engaged with the pro-secessionist group PJF and her co-accused Nikita Jacob and Shantanu Muluk attended the abovementioned Zoom meeting. The judge said that the additional solicitor-general had himself admitted PJF was not a banned group and there was no evidence linking Disha to it. In connection with any association with Mo Dhaliwal, co-founder of PJF, and others, the judge pointed out that mere engagement with a dubious character or sharing a platform is not an offence if the purpose of the association has no indictable dimension.
The police also said that Sikhs for Justice, a banned organisation, had announced a reward for anyone who could hoist the Khalistan flag at India Gate on Republic Day. The judge observed that Disha had no connection with the group. Delhi Police also said Disha had links with Kisaan.Ekta.co, through Extinction Rebellion (which is a well-known global environment group) and that the WhatsApp group Intl Farmers Strike was used in connection with a request made by Kisaan.Ekta.co. The judge observed that no one had alleged that the latter had a seditious agenda.
An important charge, previously referred to in part, was that the toolkit had a segment that included calls for a Digital Strike through hashtags on 26 January, a Tweet Storm on 23 January, physical action in joining the farmers’ march to Delhi and back to the border, targeting Indian embassies, and the vacuous charge of disrupting India’s cultural heritage in the forms of yoga and tea.
Judge Rana observed that a perusal of the toolkit revealed that ‘any call for any kind of violence was conspicuously absent’.
"In my considered opinion,’ he continued, ‘citizens are the conscience keepers of the government in any democratic nation. They cannot be put behind the bars simply because they choose to disagree with state policies. … Difference of opinion, disagreement, or for that matter, even disapprobation, are recognised legitimate tools to infuse objectivity in state policies. An aware and active citizenry, in contradistinction with an indifferent or docile citizenry, is indisputably a sign of a healthy and vibrant democracy. … Even our founding fathers accorded due respect to the divergence of opinion by recognising the freedom of speech and expression as an inviolable fundamental right. The right to dissent is firmly enshrined under Article 19 of The Constitution of India. In my considered opinion, the freedom of speech and expression includes the right to seek a global audience. There are no geographical barriers on communication. 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."
In addition, he said, except for a bare assertion, no evidence had been presented of any violence at any Indian embassy as a result of the ‘sinister designs of Disha and her co-conspirators’.
In respect of the charge that the toolkit had two hyperlinks intended to malign India, the judge said one was unobjectionable, while he, too, found the other – Genocide.org – had objectionable material, including material on human rights violations in 40 countries, including India. But, Judge Rana stressed, he disagreed with the prosecutors that the material was seditious or tended to foment violence.
It may be added that, in the context of the judge’s remarks, criticism of a regime or a government (or a party) does not amount to maligning a nation. And if a regime violates human rights, as in the current case, citizens have the right to highlight that on any platform. The conflation of the current regime in India, and the party that runs it, with the ‘nation’ is egregious and unacceptable.
Two related charges were also peremptorily dismissed. We will not go into those in detail because of constraints of space and because they cover ground already covered, other than to mention the charge that Disha sought the help of international personalities, as in sharing the toolkit with Thunberg, for example. The judge dismissed this charge with the contempt it deserved. ‘It would be worthwhile to observe that there is nothing on record to suggest that the applicant accused subscribed to any secessionist idea. Further, the prosecution has, except for pointing out that applicant/accused forwarded the toolkit to Ms. Greta Thunberg, failed to point out as to how the applicant/accused gave global audience to the “secessionist elements”’.
It has been deemed necessary to go into Judge Rana’s order in detail to point to one indisputable fact: that a law-enforcement agency’s mendacity has been unmasked. The judge did say in closing remarks that he was conscious of the fact that it was difficult to collect evidence of conspiracy, but equally, it was difficult for the defence to disprove such a charge. The investigation, he said, was at a ‘nascent stage’, but the police made the conscious choice of arresting Disha with the material at hand and could not be permitted to ‘further restrict the liberty of a citizen on the basis of propitious anticipations’.
Whatever denials the Delhi Police now choose to issue, three irregularities were committed by its personnel in their ‘arrest’ of Disha. First, ignoring custom they failed to inform the relevant police authorities in Bengaluru of their impending action prior to it.
Second, it is customary for a police posse to produce an arrested person at the nearest court for transit remand. In other words, the Delhi police should have produced Disha at a Bengaluru court before spiriting her away to Delhi, where they obtained remand, which must happen in 24 hours. Even if that time limit was followed, the failure to obtain a remand in Bengaluru constitutes part of a pattern.
Finally, Disha was not allowed proper legal representation at her first remand hearing. She had to represent herself, with all the legal acumen of a 22-year-old climate activist.
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