The arrest of Disha Ravi by the Delhi Police for circulating a toolkit tweeted by Greta Thunberg has brought to the fore the essential questions of criminal law, on the limits to criminalisation of any activity.

As per the accepted principles of criminal law, a criminal act is a sum of two essential elements known as mens rea and actus reus, they mean the intention to commit a crime and the actual commission of the wrongful act respectively. Only when both the elements are present, an act can be considered as a crime and can become punishable under criminal law. A mere intention to commit crime by itself is not a crime, and similarly a commission of wrongful act without an intention to commit that act is also not punishable.

In simpler terms, if one person wants to kill another person, then the mere desire to kill is not punishable. Consequently, if one person kills another person while trying to protect themselves then they don’t have an intention to kill them but to protect themselves, it is not a crime either. Moreover, any preparation to commit a crime is naturally not punishable, that is, if someone goes to a shop to buy a gun to kill someone, this act itself of buying a gun is not a crime. Unless and until this person chooses to aim at the person who they intend to kill, the actions are not punishable. At the time of aiming, it becomes an attempt to commit that crime, and it is punishable consequently.

Applying this understanding to the current situation, a critical question that arises is whether Disha shared the toolkit with an intention to incite violence or public disorder.  These being the essential requirements of the crime of sedition, as per its interpretation by the Supreme Court in the famous case of Kedar Nath Singh versus the State of Bihar. There are very valid and strong arguments against the constitutional validity of the law of sedition and that it has no place in a society which guarantees the fundamental right to free speech.

However, without getting into the merits of the sedition law and its constitutionality, it can be argued that the actions of Disha do not fall into the ambit of the same.

If one were to look at the toolkit, it can’t be reasonably assumed that the contents of that document are intended to create public disorder or incite violence. The entire premise of the case against her becomes legally shaky. One may assume that even if she intends to incite violence, then a mere retweet is not enough to constitute the wrongful act in this case. A retweet at best is a step in preparation because the toolkit doesn’t have the actual contents which give a call for resorting to violence.

The case of the State is that this was a larger plot to destabilise the State machinery and the government, because the toolkit has references to organizations which have openly advocated the cause of Khalistan. This again in itself is not a wrongful act just because organisations like ‘Poetic Justice Foundation’ which have Khalistani links found mention or are linked to it.

The first question that may arise legally is whether having links to this organisation is a crime in itself, which is something very hard to argue because the organisation hasn’t been designated as a terrorist organisation under any Indian law, as of now. Moreover, the ‘toolkit’ by itself is not advocating the cause of Khalistan, it is on a very different issue of systematically organising protests against the farm laws. It may indeed be possible that the pro-Khalistan groups may be trying to leverage the protests against the farm laws in some manner, but as long as there is no direct call for the creation of Khalistan, the integrity and sovereignty of India are not in question.

Hence, her actions are also not wrongful. The link that the police is trying to prove is very tenuous and is not enough to ascribe criminality to Disha’s actions. In her case, it can be argued that she neither had a wrongful intention, nor did she commit a wrongful act — making the entire case against her meaningless.

It is also no argument that Disha is of 21 years of age and that’s why she shouldn’t be arrested: The point is that she hasn’t done anything illegal or even intended to do anything illegal by being the editor of that toolkit, and that’s why should not have been arrested. The empty assertions of the State can’t be used to deprive someone of their constitutionally protected right of personal liberty.

The author is an assistant professor of law at Maharashtra National Law University, Mumbai, and former fellow of the India Foundation. Views are personal.

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