New Delhi: On Saturday, February 20, a Delhi court reserved its order on the regular bail application filed by 22-year-old climate activist Disha Ravi. Additional sessions judge Dharmender Rana posted the matter for February 23, tomorrow.
Opposing Ravi’s bail plea, additional solicitor general (ASG) S.V. Raju, appearing for the Delhi Police, alleged, “This was not just a toolkit. The real plan was to defame India and create unrest here.”
Much has been said on the toolkit that Disha Ravi is in jail for editing, on its role in “defaming India” and the unrest it created (according to the Delhi Police) on January 26 during the farmers’ tractor rally in Delhi.
From the point of view of Indian law, the main issue in this entire episode can only be the violence on January 26 and not the protests themselves. Protesting still remains a democratic right in this country.
The violence on January 26 is the only cognizable offence. But can Ravi and the others named by the police be held responsible for that violence?
For one to be held responsible, some sort of connection between the perpetrators of the violence and Ravi and the others has to be established.
The first question, then, would be: what is the evidence that Ravi and her co-accused had any contact with those who indulged in violence on that day, and, if they did have contact, whether that contact amounts to incitement to violence.
From the details the police provided, she and the others are not even accused of communicating with any of the individuals arrested or wanted for the violence on January 26.
Instead, the police claims they had corresponded online with foreign citizens and/or Indians abroad.
Is corresponding with persons abroad illegal?
Even if it is proved to the satisfaction of the court that Ravi and the others had corresponded much before January 26 with people abroad, is there an offence in this correspondence considering that there is no law that says Indian citizens cannot correspond with foreign citizens, persons of Indian origin and Indian citizens living abroad.
Suppose it is proved that Ravi et al corresponded with the Poetic Justice Foundation – the organisation the police says is behind the ‘toolkit’, with Greta Thunberg and others. Is there anything wrong in mustering international support for an agitation in India?
The Centre might regard any comment by the international community as interference in India’s ‘internal matter’ and might not like any criticism, but this is not prohibited in law.
Is commenting illegal?
It needs no reminders that the Indian government itself has been commenting prolifically on developments elsewhere in the world, has been expressing concern over them and has even criticised them.
What deprives Indian citizens of this right, particularly when the matter deals with a humanitarian crisis and violation of human rights of a large section of the poor population of India?
In any case, in the celebrated judgment in the case of Priya Parameswaran Pillai v. Union of India & Others (2015), the Delhi high court has clearly held that espousing the cause of a particular section of people cannot be considered anti-national nor does it amount to creating disaffection amongst people at large.
The high court had also pointed out that, contrary to popular notions, the expression ‘anti-national’ or ‘national interest’ is not mentioned in Article 19(2) of the constitution.
This means that any plea of the police that the correspondence of Ravi and others with foreign citizens or organisations was against ‘national interest’ is not tenable.
Moreover, it should be kept in mind that unlike the US-based pro-Khalistan organisation, ‘Sikhs for Justice’, which was banned by India in July 2019, the ‘Poetic Justice Foundation’ is not yet banned.
The situation might have been different had Ravi and her co-accused corresponded with the SFJ. But they have not.
For all we know, Poetic Justice Foundation might have pro-Khalistan members, but the legal fact is that it is not proscribed yet and was not proscribed when the activists allegedly corresponded with it.
Is lack of knowledge illegal?
Similarly, Mo Dhaliwal or Greta Thunberg are also not UN-designated or government of India-designated terrorists.
How is an Indian citizen supposed to determine that Dhaliwal is a Khalistani or that Greta Thunberg is persona non grata? It is not feasible for citizens to scan every publication in the Gazette of India or Look Out Circulars or Notices issued by various investigation agencies of Interpol Red Corner notices.
There is no law, yet, which says that an Indian citizen, before corresponding with a foreign body or citizen, must write to the Ministry of Home Affairs, the Ministry of External Affairs, the Research and Analysis Wing or the Intelligence Bureau to ascertain the antecedents of a body or person and whether it is lawful to correspond with them on a matter.
For all we know, there is no system stipulated for making such queries. If at all one makes such a query suo motu is there any history of these bodies ever responding? We do not know.
Next, there is no law, which says that, in the absence of any response from the Centre, one should go to the local station house officer and seek permission.
No such law or practice exists, nor could it be held legally valid. The reason is that even if the SHO gives permission or denies it, he is not the final word in law. His opinion could well be challenged in court and he could be proved wrong.
In that case, there would be a violation of the rights of the person concerned, besides mental stress, expenses and the waste of time.
Is editing a toolkit illegal?
Coming to the allegation that the activists had edited the ‘toolkit’, the fundamental question is, what is the offence in that? Once again, how is an Indian citizen supposed to know that doing such a thing would go against the law?
There is no law which says that one could inquire about the weather in Texas but not about a Texan’s view on the farmers’ protest in India.
There is no law which says that someone cannot edit a document in correspondence.
In the absence of any law proscribing such correspondence ab initio, it is only the court which will decide whether, by any stretch of imagination, the contents of the ‘toolkit’ could be held to constitute an offence.
Then, how were Ravi and the other activists supposed to have any view on that?
As far as they are concerned, mustering international support for a cause was a perfectly legitimate activity and, towards that end, they were free to edit the document and circulate it anywhere.
There is no evidence that their correspondence with persons outside India ‘provoked the accused or the January 26 violence in a wanton manner’ as required by Section 153 of the Indian Penal Code.
Even if some of the accused could be proved to have had access to the ‘toolkit’, it does not follow from that that the ‘toolkit’ instigated them to commit the violence, or that the creators and distributors of the toolkit had intended from the beginning for it to have the effect of inciting violence.
The contents of the toolkit make it very clear that its sole purpose was mobilising support, not violence to overawe law enforcement.
Fear of UAPA
It is also being alleged that Ravi had mentioned contacting lawyers and the possibility of UAPA being invoked, and hence she had a guilty mind.
On the contrary, such an act of hers shows the ‘climate of all pervasive fear’ that has engulfed this country since the past few years.
The NCRB is on record that during 2016-2019, as many as 5,922 UAPA cases have been taken with just 132 convictions so far. This is an overwhelming number, particularly when there is overall peace in the country.
Disha Ravi, thus, had very good reasons to be apprehensive of the highhanded behaviour of the government and its excesses.