We need to train our magistrates that remand is not automatic in all cases: Justice Deepak Gupta (Retd.)

A panel discussion organised by the Delhi High Court Lawyers Forum on " Our right to dissent " saw retired Supreme Court Judge, Justice Deepak Gupta, Senior Advocate Rebecca John and Advocate Chitranshul Sinha make pertinent observations on aspects of sedition law, bail and remand.

. " We need to train our magistrates that remand is not automatic in all the cases. They have to be retrained ", observed Justice Gupta in response to a question posed during the session.

. Senior Advocate Rebecca John made allied observations when she recounted how a magistrate allowed multiple remands of the accused, even though they only had bailable offences against them.

. "Recently, I had some clients see me in connection with multiple remands. The first 15 days had not yet elapsed. I noted that all the offences in the case were bailable. Further, I also noted that no further offences had come to be added when the last remand application was taken. It was only after eight days in custody that the magistrate realised that all the offences were bailable, for which they had come to be remanded, and finally the accused was released. This shows the lack of application of mind, and importantly, this was in Delhi ", she narrated. . We need to train our magistrates that remand is not automatic in all the cases. Justice (retd.) Deepak Gupta . Justice Gupta had been asked a question touching upon whether the Supreme Court should take suo motu cognizance over cases where dissent is curbed through sedition law. Justice Gupta responded,

" Sedition should be a non-cognizable offence and on the question of Supreme Court, I would say that suo motu cognizance cannot be taken in every case but High Courts should take up the cause. "

. On the law itself, Justice Gupta remarked,

"... I would have thought that keeping in mind the trials of Mahatma Gandhi and Gangadhar Tilak, this law should have been taken away, but it still exists ."

. It was also pointed out by Justice Gupta that the definition of "sedition" is too wide and that anything can be termed as a seditious act.

" Disaffection is such a broad term that any could amount to sedition.We live in a democracy, where there is a right to freedom of speech and expression. "

Dissent is a hallmark of the 'democracy', Justice Gupta remarked, adding that even If " one party comes into power, it is not immune to criticism. "

. He went on to observe that even if the conviction rate in sedition cases is low, an accused person's right of reputation is harmed even if he is acquitted or discharged. He further opined,

"... every thought must be respected and reasoning should be there, behind every argument (rational reasoning). If we stifle dissent, there will be no progress. One may totally disagree, but we should not 'violently disagree. '"

. "In the last 9-10 years, we have lost our sense of humor, he added.

"Today, I'm also scared to share or crack a joke even with someone close to me, because they might find it offensive.... We are breaking ourselves into different fragments. We all must get together."

. On a concluding note, Justice Gupta underscored that one of the most essential elements of rule of law is " fairness and that means, equal protection . "

. As the discussion moved on to the invocation of national security laws and how liberty is being curtailed through the same, Senior Advocate John expressed concern that, " It seems that bail is the exception, and jail is the right of prosecuting agency ."

. Why is bail treated as the be-all and end-all of the criminal law, she queried, opining further that " I would say everybody is entitled to bail. ”

. "People who have expressed dissent with the policy of the government have been pushed in under special laws, like UAPA and other National Security laws", she observed. In this backdrop, she went on to comment,

. "I have senior journalists, who send me their tweets or stories before they put it out. What kind of regime is this?"

. It seems that bail is the exception, and jail is the right of prosecuting agency. Senior Advocate Rebecca Jon . The manner in which Disha Ravi was arrested and remanded to custody in the Toolkit case was also discussed, which Senior Advocate John observing that she does not understand why Ravi's lawyer was not informed of the arrest.

. " Why the lawyer was not brought in. There was no transit remand order also taken. A Delhi High Court order of 2019 categorically states that transit remand order is required, unless exigencies exist", John said.

. She emphasised that personal liberty is intrinsically linked with procedural law. If you do not follow procedural law, there will be a breach in liberty and the right of the individual to a fair trial, she said.

. On sedition law, Advocate Chitranshul Sinha stated that " even the Kedar Nath judgment is not being followed by the police, local authorities and even the courts, they’re not going by the spirit of judgement. "

. 'Dissent is also a duty' which everyone should understand. Advocate Chitranshul Sinha . He opined that a mere slogan is not sedition , which was ruled by the court in the Balwant Singh case .

"Even in the Balwant Singh, it has held that mere slogan shouting cannot be considered as sedition, but surprisingly in Uttar Pradesh, some Kashmiri students watching cricket supported Pakistan, they were booked!", he recounted.

. He added that there should be stringent guidelines to regulate the process of arrest in sedition cases, even if " the law of sedition remains in the statute book (which I don't really want to)."

. Quoting Justice Gupta from one of his earlier speeches, he observed that The right to dissent is the most important one, and there is no democracy without it .

. "I would like to add to this quote that 'Dissent is also a duty' which everyone should understand", he said.

. Ritu Bhalla, Senior Partner at Shardul Amarchand Mangaldas, along with advocates Manali Singhal, Arundhati Katju and Swaty Singh Malik moderated the discussion.

. The event ended on a lighter note, with Advocate Singhal telling Advocate Sinha, " If you are going to jail after this discussion, then you'll be having great company. We all will be there with you. "

. " Oh yes ", Sinha replied, adding, " and Rebecca Ma'am would be representing all of us. "

We need to train our magistrates that remand is not automatic in all cases: Justice Deepak Gupta (Retd.)

Areeb Uddin Ahmed

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