Disha Ravi arrest: Cannot prosecute intent to commit crime, unintentionally committing wrongful act, argues lawyer – NewsGater , NewsGater

File image of climate activist Disha Ravi. Image courtesy of LinkedIn

Disha Ravi’s arrest by Delhi police for circulating a toolkit tweeted by Greta Thunberg has highlighted essential criminal law issues, about the limits of criminalizing any activity.

According to accepted principles of criminal law, a criminal act is the sum of two essential elements known as mens rea Y criminal law, mean the intention to commit a crime and the actual commission of the wrongful act, respectively. Only when both elements are present can an act be considered a crime and can be punishable under criminal law. The mere intention to commit a crime in itself is not a crime and, similarly, the commission of an unlawful act without the intention of committing that act is also not punishable.

In simpler terms, if one person wants to kill another, then the mere desire to kill is not punishable. Consequently, if a person kills another while trying to protect himself, then he does not intend to kill her but to protect himself, it is not a crime either. In addition, any preparation to commit a crime, naturally, is not punishable, that is, if someone goes to a store to buy a gun to kill someone, this act of buying a gun itself is not a crime. Unless and until this person decides to target the person they are trying to kill, the actions are not punishable. At the point of targeting, it becomes an attempt to commit that crime, and is punishable accordingly.

Applying this understanding to the current situation, a critical question that arises is whether Disha shared the toolkit with the intention of inciting violence or public disorder. These being the essential requirements of the crime of sedition, as interpreted by the Supreme Court in the famous case of Kedar Nath Singh against the state of Bihar. There are very valid and solid arguments against the constitutional validity of the sedition law and that it has no place in a society that guarantees the fundamental right to freedom of expression.

However, without going into the merits of the sedition law and its constitutionality, it can be argued that Disha’s actions do not fall within the purview of it.

If one were to look at the toolkit, it cannot reasonably be assumed that the content of that document is intended to create public disorder or incite violence. The whole premise of the case against him becomes legally unstable. It can be assumed that even if it is intended to incite violence, a simple retweet is not enough to constitute the wrongful act in this case. At best, a retweet is a step in preparation because the toolkit does not have the actual content that prompts a call for violence.

The case for the state is that it was a broader plot to destabilize the state machinery and the government, because the toolbox has references to organizations that have openly championed the cause of Khalistan. Again, this in itself is not an illicit act just because organizations like the ‘Poetic Justice Foundation’ that have ties to Khalistani are mentioned or linked to him.

The first question that may legally arise is whether having ties to this organization is a crime in itself, which is a very difficult thing to argue because the organization has not been designated as a terrorist organization under any Indian law, until now. Furthermore, the “toolbox” itself does not defend the cause of Khalistan, it is a very different matter from systematically organizing protests against the agricultural laws. Indeed, it may be possible that pro-Khalistan groups are trying to leverage protests against farm laws in some way, but as long as there is no direct call for the creation of Khalistan, the integrity and sovereignty of India are not in question.

Therefore, their actions are not illegal either. The link that the police are trying to demonstrate is very tenuous and is not sufficient to attribute criminality to Disha’s actions. In your case, it can be argued that you did not have an illicit intention or committed an illicit act, making the whole case against you pointless.

It is also not an argument that Disha is 21 years old and that is why she should not be arrested: the point is that she has not done anything illegal or has even intended to do something illegal by being the editor of that toolbox, and so shouldn’t have been arrested. The empty assertions of the State cannot be used to deprive someone of their constitutionally protected right to personal liberty.

The author is an assistant professor of law at the Maharashtra National Law University, Mumbai.