Many legal experts have expressed concern over allegations that 22-year-old Disha Ravi, who was arrested from Bengaluru in connection with the Greta Thunberg ‘toolkit’ case, was produced before a Magistrate without her own legal counsel and had to make submissions in court on her own. Article 22 of the Constitution says a person cannot be denied the right to a lawyer. It states, “No person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds for such arrest nor shall he be denied the right to consult, and to be defended by, a legal practitioner of his choice.”
However, it emerged that Disha was produced before the court without her lawyer, who was still in Bengaluru. When the Public Prosecutor alleged that Disha was part of a “larger conspiracy” against the Indian government, with links to Khalistani separatists, Disha made her own submissions. She denied being part of any conspiracy and that she doesn't know any such group.
"I was just supporting farmers," she said, breaking down in court. "I supported farmers because they are our future and we all need to eat." She told the court that she had not created the toolkit, but only made editing changes to it.
The Magistrate at the Delhi court has been called out for failing to ensure that due process was followed. Senior Advocate Rebecca John took to Facebook and said that the way Disha was sent to five-day police custody without her lawyer being present in court to defend her was a “shocking abdication of judicial duties.”
“Deeply disappointed by the conduct of the Duty Magistrate Patiala House court, who remanded a young woman to five days police custody, without first ensuring that she was being represented by counsel,” John wrote.
“If the accused was not being represented by counsel at the time of the hearing the magistrate should have waited till her counsel arrived or in the alternate, provided her with legal aid. Magistrates must take their duties of Remand seriously and ensure that the mandate of Article 22 of the constitution is scrupulously followed,” she wrote.
She also questioned if the Magistrate asked why Disha was being presented before him instead of a local court in Bengaluru.
“Were the case diaries and the arrest memo examined? Did the magistrate ask the Special cell why she was being produced directly from Bangalore without a transit remand from Bangalore courts? All in all, shocking abdication of judicial duties,” she added.
However, Delhi police have dismissed allegations that Disha was not accompanied by a lawyer in court. As per reports, Delhi police said that Disha was allowed to call her mother, who lives in Bengaluru, and that her mother was allowed to talk to her during the interrogation. The police have said that they received a warrant from a court in Delhi and after she was arrested, within 24 hours, she was produced before the court. She was also provided with legal aid, a lawyer represented her in court, the police said, adding that the lawyer did not argue when she was produced. The police said that her lawyer was also in touch with her, but since he was in Bengaluru, he could not reach the Delhi court in time.
The police also added that two female officers were present with Disha from the time she was detained till the time she was produced in court.
However, Bengaluru-based advocate Vinay Sreenivasa counters that the law mandates that Disha gets a lawyer of her choice, which is not the case here. He adds that Delhi police have violated guidelines laid down by the Delhi High Court on inter-state arrests of the accused.
One of the points made by the Delhi High Court in 2018 states, “Before visiting the other state, the Police Officer must endeavour to establish contact with the local Police Station in whose jurisdiction he is to conduct the investigation. He must carry with him the translated copies of the Complaint/FIR and other documents in the language of the State which he intends to visit.”
However, multiple reports state that the Karnataka police was never informed of Disha’s detention or even before she was flown out of Bengaluru. A Times of India report states that the police were only informed when Disha was already on a flight to Delhi.
The guideline also says that the arrested person must be given an opportunity to consult his or her lawyer before being taken out of the state. However, Disha was not allowed to speak to her lawyers and sources close to Disha say her lawyers were kept in the dark over which court she will be produced in as well.
The Delhi High Court had also stated that the police should obtain a transit remand after producing the accused before a local magistrate and then register the arrest. “Endeavour should be made to obtain transit remand after producing the arrestee before the nearest Magistrate unless exigencies of the situation warrant otherwise and the person can be produced before the Magistrate having jurisdiction of the case without infringing the mandate of S. 56 and 57 of Cr.P.C.within 24 hours,” the guidelines say. However, Disha was flown out of Bengaluru even before she was formally arrested and her arrest was recorded only in Delhi.
In 2012 too, the Ministry of Home Affairs had written to Chief Secretaries of all the states that the police arresting an accused in another state, bringing them to their home state and then producing them in front of a Magistrate in that state, is against the law.
“It is seen that in many cases, the police officers carrying out arrest in another State bring back the arrested person and produce him before the Magistrate in their own jurisdiction. This may be possible because of quicker means of transport and also because the stipulated period of 24 hours excludes the journey time. However, this procedure is not in accordance with law,” the letter states. Section 80 of Code of Criminal Procedure states any arrested accused must be produced before the Executive Magistrate, or the Deputy person Superintendent of police, or the Commissioner of Police within whose jurisdiction the arrest was made. “It is emphasised that Section 80 Cr.P.C. must be complied with, in every case,” the letter stated.
With inputs from Prajwal Bhat