Toolkit Case: Disha Ravi And The Rule Of Law
A mural inside the Supreme Court of India complex. (Image: Supreme Court Website)

Toolkit Case: Disha Ravi And The Rule Of Law

BloombergQuintOpinion

Disha Ravi is a 21-year old climate activist, based in Bengaluru. A graduate of Mount Carmel College, she was instrumental in setting up the Indian chapter of ‘Fridays for Future’ - the global movement for climate justice founded by Greta Thunberg, an 18-year old climate activist from Sweden. Just last year, the India chapter of Fridays for Future had been served a notice under the UAPA and the IT Act, which were later withdrawn citing ‘clerical errors.’ Additionally, the website (https://www.fridaysforfutureindia.com/about-us) had also been blocked for a long period of time, with its contents being described as “objectionable” and depicting “unlawful or terrorist acts.” The foundation for demonising her was laid then.

How did this come about? In 2012, the then UPA government amended the UAPA Act to include the definition of ‘economic security’ and bring it within the purview of ‘terrorist activity’. Although the notice under UAPA is said to have been later withdrawn, the threat of being labeled as a ‘terrorist’ continued. It was a small step therefore from there to be accused of ‘sedition’. At the time of writing, the FIR is not available but sedition is said to be one of the charges against her. It seems ‘sedition’ and ‘terrorist activity’ are now being linked via a threat to the ‘economic security’ of India. Both cause disaffection to the government by law established.

On Feb. 4, the cyber crimes cell of Delhi Police filed an FIR against the creators of a ‘toolkit’ that was shared by Greta Thunberg on Twitter. On Feb. 13, the Delhi Police arrested 21-year old Disha Ravi, in connection to the aforementioned FIR. She was first taken to the Soladevanahalli station in Bengaluru for questioning on Feb. 13, after which she was produced in court on Feb. 14.

The charges against her reportedly include: “sections 124A (sedition), 153A (promoting hatred amongst various communities on social/cultural/religious grounds) and 120B (criminal conspiracy) of the Indian Penal Code.” She has also been accused of having Khalistani connections and plotting to “promote disaffection against the Indian state”.

The manner of her arrest was clearly illegal and unconstitutional. Article 22(2) states that a person arrested shall be produced before the nearest magistrate within 24 hours.

The nearest magistrate was in Bengaluru city not in Delhi.

Forgetting the word ‘nearest’ the Delhi police which made the arrest, produced her before a Delhi magistrate within 24 hours, but this is not compliance with the law, they were bound to produce her before the nearest magistrate. There is a logic to saying that the production should be before the nearest magistrate, a judicial authority should have the opportunity to decide whether an arrest was lawful or needed at the earliest possible opportunity and that opportunity arose in Bengaluru. It is that magistrate who would have deeded whether police custody is needed at all. Not every criminal case needs custodial interrogation and not every criminal case needs detention in police custody. The right to legal representation is itself a fundamental right under Article 22(1). She did not have a lawyer of her choice. She has been sent to police custody for a period of five days.

There are also claims from the Delhi Police that she didn’t have legal representation in court because her lawyers wanted her to be sent to judicial custody; however, her lawyers have stated that they could not reach in time because they did not know which court she was going to be produced in. In either view of the matter, her fundamental right to legal representation of her choice has been violated and the arrest and subsequent remand are unlawful.

How did Disha Ravi come to be demonised? In 2012, the UAPA was amended to include ‘economic security’ which reads as follows:

[(ea) “economic security” includes financial, monetary and fiscal stability, security of means of production and distribution, food security, livelihood security, energy security, ecological and environmental security;]

Anything which disrupts the ‘economic security’ of India would constitute an offence under Section 15 of the UAPA as a ‘terrorist act’ if it is intended to strike terror by bombs etc... or by any other means, and which caused damage to property. Although a notice given in 2020 under this Act was later withdrawn, the demonisation for destroying the ‘economic security’ of India by being a climate activist continued.

This section has now become a convenient tool to criminalise all opposition to the environmental clearances given by the government to big business, in the fossil fuel industry for example.

Climate activists who advocate for the reduction of carbon footsteps then become ‘terrorists’ for jeopardising the economic security of India, while all that they are doing is opposing the policy of the government on a given issue.

The strategy was first tried in the case of Priya Pillai, of Greenpeace, when she was prevented from traveling abroad to address Members of Parliament in the United Kingdom about the destructive impact of coal mining on the environment. Fortunately, the Delhi High Court stepped in and set aside the travel ban.

In Disha’s case, she has been accused of sedition under Section 124A of the Indian Penal Code that is causing disaffection against the Government of India. Sedition too has uncanny similarities to the UAPA, making them almost overlap in that both pose a threat to the security of the State.

What amazes me is that the crime of Sedition survives in Independent India at all. What does Section 124A forbid? It is the incitement of hatred, or contempt or disaffection, towards the government by law established. We need to give meaning to the words ‘hatred’ ‘contempt’ and ‘disaffection’ in this section. While the words ‘hatred’ and ‘contempt’ are clear, the word ‘disaffection’ is not really defined in law and needed some explanation, which is as follows:

Explanation 1
The expression disaffection includes disloyalty and feelings of enmity.
Explanation 2
Comments expressing disapprobation of the measures of the government with the view to obtain their alteration by lawful means, without exciting or attempting to excite hatred, contempt, or disaffection, do not constitute an offence under this section.

Forgetting Explanation 2, the police take action against anyone who disagrees with the policies of the government of the day, making a nonsense of the fundamental right to free speech and the right to protest. Neither loyalty nor affection come on demand, and cannot be mandated by law. To govern, by definition, is to make choices between options. There can be differences of opinion on the option a government may choose. And to protest when there is such a definition is a fundamental right. Nothing illustrates this better than the differences over climate change.

When a difference of opinion on any issue is called ‘fake news’ and FIRs are filed in exercise of powers under the Information Technology Act of 2000, there is an abuse of the process of law.

When the law is used to break the law, we live in a state of lawlessness.

The defining strategy of the central government seems to be to use criminal law when there is no crime committed. The goalposts of the criminal justice system are being changed, its object is no longer to curb criminal activity but to target lawful activity, either by redefining the crime or by misusing criminal law.

Senior journalists are accused of sedition for tweeting a story which said that a young farmer on a tractor was ‘allegedly’ shot by the police. To put out an inaccurate report is not a crime, the record can be set right. The jury is still out on the question of whether he was shot or whether he was shot by the police or it was an accident. While the stratagies to curb dissent are many, one of the favorite ones is the use of the offence of sedition as defined in Section 124A of the Indian Penal Code. Yesterday it was senior journalists, today it is a 21-year-old climate activist accused of sedition.

Protesting farmers say repeal the three farm laws. In my opinion, it’s the offence of sedition in Section 124 A that needs to be repealed for a semblance of democracy to return to the country.

Indira Jaising is a Senior Advocate at the Supreme Court, former Additional Solicitor General of India and the founder of The Leaflet.

The views expressed here are those of the author and do not necessarily represent the views of BloombergQuint or its editorial team.

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