Patralekha Chatterjee | Judges need to protect right to dissent, protest

At a time when the people’s faith in key institutions is plummeting, judicial verdicts that seek to restore the citizens’ faith in justice and fair play are hugely welcome. In recent days, two court orders in particular have buoyed spirts because they emit a powerful signal — that the attempts to invoke the law to muzzle freedom of thought and expression and quieten disquiet will not always work.

A Delhi court has granted bail to 22-year-old climate activist Disha Ravi, arrested by the Delhi police on February 13 from her Bengaluru home in the by-now famous “toolkit” case, saying there was just not enough evidence to keep the young woman in custody. Additional sessions judge Dharmender Rana’s order set Disha free on bail on the condition of her furnishing two sureties of Rs 1 lakh each and with the directive that she cooperate with the investigation into the FIR and not leave the country.

A few days earlier, there was another welcome verdict. The Nagpur bench of the Bombay high court granted interim bail on medical grounds to ailing 82-year-old poet-activist Varavara Rao.

These verdicts are good news; but the questions they raise and the momentum they have generated need to be sustained and leveraged to trigger a public debate on judicial reforms.

As citizens, reading both the verdicts is instructive. While granting conditional bail on medical grounds to Varavara Rao, an accused in the Elgaar Parishad-Bhima Koregaon case, the Bombay high court pointed out that the National Investigation Agency (NIA) had kept him in custody for a long period without framing charges.

Senior advocates Indira Jaising and Anand Grover, who argued on behalf of Mr Rao, pointed out that considering his age, medical history, and multiple health complications, the prison atmosphere was absolutely not conducive to his mental and physical well-being. Such well-being is a fundamental right of every prisoner, points out Leaflet, a legal website.

The NIA had opposed the bail plea citing a bar under Section 43-D (4) and (5) of the UAPA (Unlawful Activities Prevention Act), which says bail cannot be granted to an accused under the anti-terror statute if the prosecution makes out a prima facie case against the accused. Ms Jaising argued that the fundamental right to health of a prisoner could never be ousted by Section 43(D)(5) of the UAPA.

The high court observed that it was a “genuine and fit” case for granting relief in view of the advanced age of Mr Rao and inadequate facilities at the Taloja jail hospital; it argued that if it denied relief to Mr Rao, it would be abdicating its constitutional duties as a protector of human rights and right to health covered under Article 21 of the Constitution.

The arguments undergirding the verdict related to Disha Ravi, arrested on the charge of sedition, are equally important. The court punctured most of the arguments of the Delhi police against Ms Ravi, including her alleged engagement with groups with “dubious” credentials, her links with banned organisations, her alleged role in incitement as well as the destruction of “evidence” and gave detailed reasons for doing so.

While taking the decision to grant bail to Ms Ravi, the court noted that “mere engagement with persons of dubious credentials is not indictable”. A key argument of the prosecution hinged on the charge that a group called “Poetic Justice Foundation” (PJF), which was allegedly pro-Khalistani and secessionist, and people associated with it, was involved in creating the “toolkit” document. The police alleged that two of Ms Ravi’s associates, Nikita Jacob and Shantanu Muluk, attended a Zoom meeting in which activists of the PJF also participated along with many others and this somehow made Ms Ravi also culpable.

The court said that no real evidence had been put on record to establish a direct link between Ms Ravi and the PJF activists mentioned. “In my considered opinion, it is not mere engagement with persons of dubious credentials which is indictable, rather it is the purpose of engagement which is relevant for the purpose of deciding culpability,” the judge said.

The prosecution had sought to connect Ms Ravi with the violence that rocked Delhi on January 26. The court pointed out that there was no evidence of this. The judge noted that merely sharing a platform with people who oppose a law is not secessionist.

“In the absence of any evidence to the effect that the applicant/accused agreed or shared a common purpose to cause violence on January 26 with the founders of the PJF, it cannot be presumed by resorting to surmises or conjectures that she also supported the secessionist tendencies or the violence caused on January 26, simply because she shared a platform with people who have gathered to oppose the legislation,” the order said.

The crux of the matter, as the court pointed out, is whether Disha Ravi was merely involved in peaceful protest and dissent against the farm laws or if she was actually involved in seditious activities under the guise of protesting against these laws.

The court’s view, as articulated in the order, is that citizens cannot be tossed behind bars simply because they disagree with the government of the day.
“Difference of opinion, disagreement, dissent, or for that matter, even disapprobation, are recognised legitimate tools to infuse objectivity in state policies… The offence of sedition cannot be invoked to minister to the wounded vanity of governments,” the court said, citing a 1942 ruling.

Another critical observation by the court in the Disha Ravi case pivots around the right to dissent being firmly enshrined in Article 19 and that freedom of speech includes the right to seek a global audience.

These observations are welcome and will have far-reaching implications.
Young Indians, mostly women in their early 20s, have been arrested over the past few years merely for exercising their fundamental right to freedom of speech and expression, by engaging in democratic protests with no intentions of perpetrating violence and with no intention of inciting violence, members of the Delhi High Court Women Lawyers Forum have pointed out in a public letter to the Chief Justice of India and other Supreme Court judges. The letter notes that Disha was brought from Bengaluru to the national capital by the Delhi police without following the prescribed legal procedures.

“We feel that the Bar and Bench cannot watch silently as young people are forced into long incarceration,” the letter said. The judiciary must take heed.