Freedom of Association and Assembly / Protests, Political Expression
Microtech Contracting Corp. v. Mason Tenders District Council of Greater New York
In Progress Expands Expression
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The Patiala House Court, a lower court in the Indian capital of New Delhi, in an interim decision, granted bail to the applicant who had been involved in the creation and sharing of ‘Toolkit’ documents on social media. The digital Toolkit contained documents in relation to nationwide protests against the newly introduced Farmers Bills and the applicant was arrested for the offences of sedition and criminal conspiracy for her part in the circulation of the Toolkit. While allowing the applicant’s bail application because of the lack of any strong reason or evidence that would result in the contrary, the Court made pertinent observations on the applicability of the law of sedition. In so doing the Court upheld a citizen’s right to dissent and protest, which rights are protected under the fundamental right to free speech – it further stated that dissent and divergence of opinion was a sign of a healthy democracy. The Court also held that the right to seek a global audience without any geographical barriers on communication was a part of freedom of speech and expression.
The present proceedings arose from the criminal case filed by the State against Disha Ravi, the applicant, a 22-year old environmental activist. She was arrested for her involvement in the circulation of the Toolkit, a digital kit created and shared during the farmers’ protests against Farmers Bills in 2020. She was accused of offenses punishable under several sections of the Indian Penal Code namely:
The applicant filed an application before the Court under Section 439 of the Code of Civil Procedure seeking bail, and resulting in the present decision.
She argued that as Section 153A was a bailable offence, she ought not to have been arrested in view of the Hon’ble Supreme Court’s decision in Arnesh Kumar v. State of Bihar (2014) 8 SCC 273. In the absence of any criminal antecedents, the applicant argued that she was falsely arrested on February 13, 2021, brought from Bangalore, a city in the southern part of India, to the Indian capital of New Delhi, and placed in police custody until February 19, 2021. The investigating agency had failed to observe the mandatory legal procedures at the time of the applicant’s arrest by failing to allow her to seek counsel or securing any judicial order for her transfer from Bangalore to Delhi thus, violating her rights under Article 22 of the Constitution. [para.7]
It was argued that the investigating agency had maliciously invoked allegations of sedition under Section 124A IPC to portray a minor offence as a grave offence. Further, the investigating agency maliciously used terms such as “global conspiracy” to sensationalise the case and prejudice the personal liberty of the applicant. [para. 3] The applicant argued that the Toolkit represented an expression of free speech rights which are protected under Article 19(1)(a) of the Constitution of India. No offence of sedition was made out as the applicant was merely exercising her freedom of speech and expression to oppose the farm laws enacted by the government. [para. 4] The applicant relied on the Supreme Court decision in Kedar Nath Singh v. State of Punjab, AIR 1962 SC 955 to argue that actual violence or incitement to violence associated with the words in question, the necessary conditions for establishing a case under Section 124A of the IPC, were absent in the present case. Mere involvement of the applicant in the creation or sharing of the Toolkit could not be construed as an offense. [para. 5]
It was further submitted on behalf of the applicant that there was no likelihood of the applicant fleeing away or obstructing justice as she was gainfully employed in India and was recognised both nationally and globally for her effort in promoting climate justice and environmental concerns. In any event, the investigation with respect to the applicant was complete as the investigation agency had no further interrogation to make and all relevant material had been recovered from the applicant. Therefore, keeping the applicant in prison without setting her free on bail would not serve any purpose. [para. 8] As the evidence in the present case was entirely documentary in nature, there was no scope for the applicant to influence any witness in the case. The applicant further submitted that it was willing to abide by all conditions that may be imposed for the grant of bail in view of the which the Court ought to allow the applicant’s bail application. [para. 6]
The State argued that the applicant was involved in creating and disseminating seditious content on social media by circulating the Toolkit which “reflected disaffection against the lawfully elected government of India.” The Toolkit was directly linked to several secessionist organisations such as the “Poetic Justice Foundation” of Canada, a secessionist group advocating for the creation of an independent country from India namely, Khalistan (a secessionist group in India). [paras. 9, 10 & 12] The segment of the Toolkit titled “Prior Action” called for a digital strike in India through hashtags on January 26, 2021 i.e., the Republic Day in India. It was even argued that the statements in the Toolkit incited and led to public disorder both in India and abroad on that day. The Toolkit had contents “which malignantly, or wantonly gave provocation to any person and also promoted or attempted to promote, on grounds of religion, race, caste, community and other grounds, disharmony and feelings of enmity, hatred and ill will between different religions, racial language and regional groups, castes and communities.” The State argued that the Toolkit even contained hyperlinks to websites including “GenocideWatch.Org” which contained malicious and provocative material against the government of India. [paras. 9 & 10] Further, the investigating agency discovered that a banned terrorist organisation, “Sikhs for Justice,” had issued an open communication declaring a reward for anti-national activities including the hoisting of the Khalistan flag at India Gate, a landmark public place in the Indian capital, on Republic day. [para. 11] The State further argued that the applicant was involved in the creation of the Toolkit, had editing rights to it and also created a WhatsApp group named “Intl Farmers Strike” on December 6, 2020. [para. 12] The applicant along with other individuals was a part of the sinister plan “Global Day of Action on India’s Republic Day.” It was the State’s case that as the applicant and other individuals could not create disaffection against the government, the applicant participated in a vicious social media campaign to spread fake news after January 26, 2021 by sharing the Toolkit with Ms Greta Thunberg, a noted environmentalist. [para. 12]
The State submitted that when even argued that when the investigation agency reached the Respondent’s place on February 13, 2021, she denied knowledge of the Toolkit and the fact that she created any WhatsApp group. According to the State, the applicant had deleted the WhatsApp group resulting in the deletion of vital information. Further, incriminating material had been found on the applicant’s cellular phone and laptop as a result of which she had been arrested in Bangalore. The State submitted that from the analysis of Respondent’s electronic devices, it was certain that she was in contact with individuals from New Delhi who were collaborators in the conspiracy to incite disaffection and violence on January 26, 2021 and garnered support for the secessionist Khalistan movement in the guise of the farmers protests. [para. 12] The State argued that custodial interrogation of the applicant was necessary to recover the deleted WhatsApp group and for recovery of the Toolkit along with other incriminating material and to confront her with the other co-accused to unravel the whole conspiracy. If the applicant was set free on bail at the initial stage of the investigation, there would be a likelihood of her hampering the course of the investigation. [para. 13] Lastly, it was also argued that the order of the Ld. Judge remanding the applicant to judicial custody having attained finality, the instant bail application was not maintainable under Section 439 of the Code of Criminal Procedure. [para. 14]
Ld. Additional Sessions Judge, Mr. Dharmendra Rana, delivered the decision. On the issue of maintainability of the bail application, the objection raised by the State was rejected by the Court. [para. 16]
The primary issue considered by the Court was whether the applicant was merely involved in peaceful protest and dissent against the Farmers Bills or was she actually involved in seditious activities under the guise of protests. The Court noted that under Sections 124A and 153A of the IPC only such activities as would be intended or having a tendency to create disorder or disturbance of the public peace by resorting to violence would have penal consequence. [Reliance on Kedar Nath v. State of Bihar AIR 1962 SC 955] In the present case, the State had conceded that there was no direct evidence establishing the link between the applicant and the violence perpetrated on January 26, 2021. [para. 21] The allegation that the applicant was a part of a larger conspiracy to perpetuate violence by secessionist forces could not be proved by mere inferences. [Reliance on Arun G. Gowli v. State of Maharashtra, 1998 Cr.LJ 4481 (Bombay)] The State had failed to produce any proof in support of its contention that there was a direct association between the applicant and individuals connected to the Poetic Justice Foundation. In any event, the Poetic Justice Foundation was not banned nor were there any criminal actions pending against the named individuals having connections with it. [para. 22.1] Further, there was nothing on record to show that the applicant or the aforesaid organisations and its associates led to the violence on January 26, 2021. ‘Mere engagement with persons of dubious credentials is not indictable rather it is the purpose of the engagement which is relevant for the purpose of deciding culpability,” said the Court. There was no proof to support that the applicant had any link with Sikhs for Justice, the banned terrorist organisation, nor that she had any link with Indian conspirators or any seditious agenda. [para. 22.1]
The Court held that the Toolkit did not, in any manner, call for or incite violence. “Citizens, the conscience keepers of government in a democratic nation, cannot be put behind bars simply for their disagreement with the State politics,” the Court opined and went on that, “difference of opinion, divergence, dissent or even disapprobation are recognised legitimate tools to infuse objectivity in state policies.” In fact, “an aware and assertive citizenry, in contradistinction with an indifferent or docile citizenry, is indisputably a sign of a healthy and vibrant democracy.” Therefore, the “offense of sedition cannot be invoked to minister to the wounded vanity of the governments.” [Reliance on Niharendu Dutt Mazumdar v. Emperor AIR 1942 FC22] Due respect is given to divergence of opinion by recognising the freedom of speech and expression as an inviolable fundamental right. Freedom of speech and expression includes the right to seek a global audience without any geographical barriers on communication. The Court reiterated the well-recognised fundamental right of a citizen “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.” [Reliance on Secretary, Ministry of I&B v. Cricket Association of Bengal (1995) 2 SCC 161] With respect to the hyperlinks imbedded in the Toolkit, the Court held that while one out of the two pages i.e., Genocide.org, had imputations of an objectionable nature, the said material was not seditious. The imputations on the said website though false and exaggerated could not be termed as seditious unless they had the tendency to incite to violence. [Reliance on Balbir Singh Saina v. State of Haryana 1989 SCC 93 (P&H)] [para. 22.2]
The Court held that the applicant had not committed any offense by creating a WhatsApp group or by virtue of being editor of the Toolkit. Further, as the content of the Toolkit was not objectionable, mere deletion of the WhatsApp chat to destroy the evidence linking her with the toolkit and the Poetic Justice Foundation also becomes meaningless. In view of the fact that the protest march was duly permitted by the Delhi Police, the fact that one of the co-accused reached Delhi to attend the protest did not constitute an offense. [para. 22.3]
In allowing the bail application, the Court held that there was nothing to suggest that the applicant subscribed to any secessionist idea. The State even failed to prove how the applicant brought a global audience to the “secessionist elements” [para. 23] by forwarding the Toolkit to Greta Thunberg. No evidence was brought to demonstrate that any violence actually took place at Indian Embassies pursuant to the acts of the applicant and any the co-conspirators. [para. 26] Further, “neither the rule of law nor prudence requires a person to be mandatorily detained in custody to be confronted with other co-accused persons” as submitted by the State. The State had failed to recover anything from the applicant despite interrogating her in custody for five days. While the investigation is at a nascent stage and the investigation agency is in the process of collecting more evidence and arrested the Respondent on the basis of the material available, “the personal liberty of the Respondent could not be restricted any further merely on the basis of propitious anticipations.” Therefore, State’s objection to the bail plea was “more ornamental in nature.” [para. 28]
The Court upheld the general rule of “bail, not jail” as there was no palpable reason to restrain the applicant who had a blemish-free criminal antecedent. The bail application was allowed subject to the applicant furnishing a personal surety bond of Indian Rupees 100,000 [approx. $1,334 USD] with two sureties each in the same amount. During the bail, the applicant was ordered to continue to cooperate with the ongoing investigations, not to leave the country without permission of the Court and to appear at each proceeding before the Court without causing any obstruction to the progress of the case. [para. 29]
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The decision of the Court reemphasises the importance of the right to dissent, disagree and protest which are integral to freedom of speech and expression. The observation of the Court that, “charges for the offense of sedition cannot be invoked to minister to the wounded vanity of the governments” is appropriate and equally applies to all democracies. For a true democracy to flourish the importance of a citizen’s right to debate, dissent, disagree, question state policies or partake in peaceful protests is critical. It is equally important to recognise the right of access to a global audience as a part of freedom of speech and expression if a democracy is to survive. The decision puts the fundamental right of speech and expression on the highest pedestal, thus expanding the said right.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
Sections 153A, 153, 124A, 120B
Sections 1565, 439
Case significance refers to how influential the case is and how its significance changes over time.
This interim decision of the lower court is subject to appeal and modification by superior courts. Given the public support for the decision and the fact that the decision recognises and values freedom of speech and expression and a citizen’s right to protest/dissent above all else, the decision could have an impact on the adjudication of sensationalised cases where the State invokes charges of sedition to stifle the right to dissent.
Let us know if you notice errors or if the case analysis needs revision.