New lines are being drawn on the Map of India. New categories of classification are being inserted in Art. 14 and Art. 15 of the Indian Constitution, albeit silently but ironically in broad daylight.
Shapeshifting, a common theme in mythology and folklore, is the ability of a creature to 'shapeshift', and acquire full body transformation, enabling it to trick, deceive, hunt and kill humans. Vampires, popularized by Hollywood, and Lycanthropes (commonly known as werewolves) are some of the more popular shape-shifters that have informed our imagination of the dark world.
While the tales about shapeshifters may only be imaginary stuff, their very idea is worth ruminating about. This idea - that a creature can have one form, and then take a completely different form, if not striking as downright horror, is still capable of arousing enough anxiety. That there exists shapeshifters, even amongst humans – people who say one thing but turn out to be something completely different, is not impossible to relate to. We all have come across human beings, who are shapeshifters, albeit in personal and public life. But what's interesting to see is – how law itself could be metamorphosed into a shapeshifting demon - by those who control it, such that instead of being a force to protect 'we, the people', it instead becomes the highest instrument of oppression.
The arrest of the two young female students – Devangana Kalita and Natasha Narwal, activists and founding members of 'Pinjra Tod' (Break The Cage), on May 23rd 2020, tells a tale of how law and its procedure is being used as a shapeshifting demon, with the avowed objective of silencing those who criticise the government.
For starters, 'Pinjra Tod' is an ' autonomous collective effort to ensure secure, affordable and not gender-discriminatory accommodation for women students across Delhi'. Those who may feel completely out of context, it is natural to wonder, what do these two young women, one 30 years and another 32 years, really have to do, to invite the wrath of the state, leading to their arrest during the lockdown? Well turns out, not very much, except, stand out as the voice of resistance – a symbol of young, rebellious, group of women, ready to dare the mighty powers. More dangerous than the werewolves, eh?!
Let's explore how the legal process unfolded in this case, at a broad structural level.
The two women were named under one FIR (48/2020), dated 24th February 2020, where they were charged under Section 147, 186, 188, 353, 283, 341 and 34 IPC, allegedly in connection with the protest against the Citizenship Amendment Act at Jafrabad (Delhi) this February. Notably, the protest was said to be prompted by a pro-CAA rally by BJP's Kapil Mishra and his supporters on 23rd February, 2020. A day later, riots broke out in the district.
The Duty Magistrate, Ajeet Narayan, before whom they were produced long after three months, on 24thMay 2020, observed that there is 'no reason to maintain the charge under Section 353 IPC' (the only section for non-bailable offence in the first FIR), as 'they were merely protesting against CAA and NRC.' So just when it seemed that the girls will get the bail, the Special Investigation Team of the Crime Branch, in no time produced a second FIR (50/2020), dated 26th February 2020, with much more serious offences viz. 332, 307, 427, 120 B, 188 of IPC including Sections 25, 27 of the Arms Act, 1959 and Sections 3, 4 of the Damage to Public Property Act, 1984. The Crime Branch now demanded 14 days custody of the two activists, on the basis of this second FIR, but the magistrate granted two days custody, only to be extended to further two days on 26th May, 2020.
It is notable that the second FIR (50/2020) is dated 26th February, 2020, two days after the first FIR (48/2020) which is dated 24th February, 2020. Also the second FIR does not directly name Devangana and Natasha but makes reference to the first FIR. In essence, not one, but two FIRs were used to make out a case, for custody, interestingly, in rapid succession. Also, while it was the Delhi Police who made the arrest in relation to the first FIR and pressed for custody in its relation, on seeing that the Duty Magistrate is likely to grant bail to the two activists, it was the Crime Branch which produced the second FIR and now pressed for custody in relation to it.
Now let's refresh some basic lessons in criminal procedure and understand the legal guidelines laid down by the Supreme Court in the famous D.K. Basu case. When a person is arrested, the police officer making the arrest, has to prepare a memo-of-arrest, which in turn has to be produced before the Magistrate along with the arrested person, within 24 hours. This flows from Art. 21 of the Indian Constitution, which provides for the right to life and dignity and Art. 22, that acts as a safeguard against arbitrary arrests.
The devil lies in the details. While the investigating officer has to submit a memo-of-arrest, there is no uniform format for it, across states (yet!). As a result, while usually the memo-of-arrest mentions date, time, place of arrest, signed by the Police Officer and countersigned by one more person (usually someone present at the site of arrest), there is sometimes no mention of the FIR Number, under which the arrest is being made, and/or the offences for which the person is being arrested in the memo-of-arrest.
As a result, and as it appears in this case of the arrest of 'Pinjra Tod' activists, the arrested persons may be completely taken in by surprise if the Police officer/Crime Branch, produces an additional FIR before the Magistrate. Please appreciate the beauty that is 'legal procedure'!
So in theory, it is well known, that a fundamental right of every arrested person in India is to be informed of the offences under which one is being arrested. However the gaps (arguably, deliberate) in legal procedure can mean that not one, two, three but several omnibus FIRs may be sprung as a surprise against the arrested persons, before the Magistrate. Now, the additional FIRs, ofcourse, will be dated. But how is the person arrested, and/or their lawyers supposed to argue on a new FIR, which they seek to contest ? There is one more aspect which needs clarification from the police . The first FIR which was registered on 24th February, 2020 was numbered as FIR (48/2020), whereas the second FIR which was registered on 26th February, 2020, two days after the first FIR (48/2020) is numbered as FIR (50/2020). It is surprising that in two days, there was only one FIR ( might be FIR No – 49/50) registered in the same police station.
Is there no safeguard against such practice – well luckily, there is. The Magistrate does have the power to question, the Investigating Officer, about the memo-of-arrest, whether the FIRs were brought to the attention of the arrested person, if so, what is the procedure that was followed, and hear the arrested person and/or their lawyers on the same.
Now turning to the 'Pinjra Tod' arrest story, in the light of the above, some legal questions arise. First, if there were serious charges in the second FIR (FIR 50/2020), why did the Crime Branch wait till the Delhi Police pressed for custody in the first FIR? In other words - why was the second FIR with more serious charges brought to the attention of the Magistrate only after the latter made an oral observation in relation to the first FIR that he will grant bail.
Secondly, both the FIRs were filed in February 2020, why did the Police and Investigating Officers do nothing until lockdown to arrest? When the entire world is under lockdown and there are several 'urgent' matters to be attended do, why an arrest of these young women now?
Finally, did the Magistrate enquire into the existence of the two FIRs and the views of the arrested persons/their lawyers on whether they were informed about the existence of the second FIR? When the lawyers for the accused are present in Court to argue in relation to the first FIR, how is it expected that they can suddenly start arguing now for the second FIR, whose existence, may have come to their knowledge only now, during the oral hearing of the first FIR.
This is especially relevant in the light of the observations of the Supreme Court judgment in the T.T. Anthony case (T.T. Anthony v. State of Kerala and Ors., 2001 (6) SCC 181). In this case, the SC cautioned that in respect of the same cognizable offence, two FIRs should not be lodged, as there can be no second FIR and no fresh investigation on receipt of every subsequent information in respect of the same cognizable offence. In recent memory, this was invoked in the case of Mr. P. Chidambaram and also Mr. Arnab Goswami's case. So while there is no restriction in the Crime Branch wanting to interrogate the activists, it is only fair to ask, that both the FIRs should have been produced before the Magistrate simultaneously, to give a fair chance to the arrested persons and their lawyers to challenge the second FIR.
Connecting the dots, what this underhanded approach goes to show is something far more serious, than just the repercussions of it on this one case. The State (read – the government), through its instrumentalities, such as the Police, may be honing its skill to use legal procedure as a shapeshifting demon, to muzzle all dissent.
Right to equality envisaged by the Indian Constitution provides that all are equal before the eyes of the law, but only those who are equal in the first place. This means that there can be reasonable classification to treat those who are different, differently. Right to non-discrimination, under Art. 15 provides that no person can be discriminated on grounds of religion, race, caste, sex or place of birth. But a new category is silently being inserted in the Indian Constitution – one that can be seen, and yet cannot be called out by name.
The message is clear on the wall – it is no longer an attempt to divide the nation, on religious, caste, sex, or any other ground. New lines are being drawn on the map of India. New categories of classification are being inserted in Art. 14 and Art. 15 of the Indian Constitution, albeit silently but ironically in broad daylight. The lines along which India is being divided is quite simply - those who support the government and those who criticise it.
That young people, with no weapons, except the passion they carry in their heart, including young women, can be the target of this shapeshifting demon, shows the great hunger, of those who wield control over this demon.
But why, why target young women in particular – Gulfisha, Safoora, Ishrat – why do these young women inspire such fear? Think of the recent, most potent image of the protests against CAA/NRC and once again the women-led protests at Shaheen Bagh are unmissable. For those still invested in the exercise of connecting dots, a clear picture across the nation is emerging – one where women, especially young women, are taking charge of the fight against all demons of oppression – be those religious, caste or gender based. This introduces an element into the war, that those who control these shapeshifter demons may not know how to respond to. Their anxiety to crush down the dissent, and prevent a bigger nation-wide uprising, where women may come up in large numbers to fight the battles, hitherto considered the domain of men alone, is not good news for some.
But what does their anxiety tell the rest of us? And why should we think critically the role of these shapeshifting demons in this war – well, because, the lines of this war, that are being drawn are not on the lines of religion, caste, or gender but simply on the lines of 'us v. them'.
To realise - that those falling on the wrong side of this divide include not just people of a particular religious community but increasingly young people, who dare to speak against the government reveals that no one is safe, any longer. The fact that it is the 'law', which is being used to silence every critical voice, is horrifying for it represents the systematic subversion of the very tool that can check and balance the government. But all is not lost, because all is never lost. Those who cherish the Indian Constitution and the values it represents need to ensure that LAW remains the benevolent, above the king, embodiment of Dharma that we all hope it to be.
Views Are Personal Only.
(Author is a lawyer in the Supreme Court. Write to her at firstname.lastname@example.org)