The Siddique Kappan Case: How Freedom of Speech Got Incarcerated

Journalist Siddique Kappan case recently reignited after his video asserting his belief in the Indian Constitution and Judiciary went viral. Siddiquie Kappan got arrested while he was on his way to report the Hathras rape case in Uttar Pradesh. He is among many small and independent journalists who are wrongfully incarcerated under draconian laws like the Unlawful (Activities) Prevention Act and sedition. The latter is, in fact, a colonial leftover.

Both these laws reverse the burden of proof and are worded to warrant human rights violations. Shubhra Agarwal, a Lawctopus Writers Club member, breaks down the case with its timeline. She also explains how the case defies legal protections, abusing excessive state power to silence voices of dissent.

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By Shubhra Agrawal, a third-year student at National Law University Orissa. Shubra is a member of the Lawctopus Writers Club.

Who Is Siddique Kappan? What Is the Case Against Him?

Journalists in India have been battling curbs on freedom of speech for some time now. From Anti-CAA protests, Delhi riots, the migrant crisis and farmers’ protest in the last year to Covid related reporting this year, these restrictions were consistent through 2020 and continue in 2021.

Owing to the increased ‘chilling effect’, many journalists prefer to be tight-lipped or conveniently side with the government. However, some small and independent news providers with online or regional presence continue to do their job and are, therefore, most prone to legal and political pressure or illegal incarceration.

The Free Speech Collective reported that 67 journalists were arrested in 2020. Many of them were charged with sedition, the Information Technology Act rules and the Unlawful Activities Prevention Act (UAPA).

Siddique Kappan, a 42-year-old news writer from Kerala, was one of the many journalists who were detained last year. He got arrested in Mathura, Uttar Pradesh, on October 5, 2020, along with three other men.

Amidst the uproar against the rape and murder of a young Dalit girl in Hathras, Uttar Pradesh, Kappan got arrested when he was on his way to cover the story.

After arresting Kappan, the UP police spun a convenient narrative.

As per the 5000-page-long chargesheet filed by UP police, Kappan was going to Hathras to incite unrest and communal tension. The police accused him of links with the extremist Islamist organisation, Popular Front of India (PFI), and collecting funds for anti-national activities through PFI. However, Kappan’s counsel, his family and acquaintances have rejected these claims. Ironically enough, PFI itself denied any association with him.

He was charged under Sections 124A (sedition), 153A (promoting enmity), 295A(outraging sentiments) and 120B (criminal conspiracy) of the IPC. Subsequently, Sections 14, 17 and 18 of UAPA and Sections 65, 72 and 76 of the IT Act were also applied.

Timeline After Siddiquie Kappan Arrest

A day after the arrest, the Kerala Union of Working Journalists (KUWJ), of which Kappan is the Secretary, filed a writ petition of habeas corpus in the Supreme Court. On the same day, the Indian Women Press Corps (IWCP) and the Press Club of India (PCI) issued statements condemning his arrest. The IWCP, in their statement, questioned the evidential basis of linking him with banned organisations. While the PCI issued another statement saying:

In these circumstances, our worry is that UP Police may not fight shy of using anti-terrorism provisions with which to charge the Kerala journalist.

On October 7, Kappan was remanded 14 days of judicial custody by a local Mathura Court. Following this, Senior Advocate Kapil Sibal sought permission from the Supreme Court on October 12 to file a new plea under Article 32.

Sibal argued that the courts in Uttar Pradesh would most likely not allow for relief due to political interferences and pressure, and therefore, the SC should step in. However, not heeding the request, the former Chief Justice of India, S.A. Bobde, asked to approach the Allahabad HC ‘in case something wrong happens’.

It is essential to note that Kappan didn’t meet his family and lawyer and didn’t even sign the Vakalatnama. However, while adjourning his plea, the Apex Court asked to approach the ‘correct court’.

His lawyer had to file a fresh petition in the Supreme Court to issue directions enabling their meeting. Meanwhile, his custody got extended till November 2 by the Mathura court.

The Additional District and Sessions Judge of Mathura court finally considered his bail application on November 13, twice after his custody got extended without substantial grounds. The Court, however, rejected the plea citing Section 43D(5) of the UAPA. Section 43D(5) restricts the power of the Court to grant bail to an accused charged under Chapters IV and VI of the Act.

Finally, on November 20, the Supreme Court took cognisance of the issue.

The Court recorded Solicitor General Tushar Mehta’s no objection Statement,  allowing Kappan to meet his lawyer. The following day, Kappan had a 30 minutes meeting with his lawyer Willis Matthew. Here he disclosed being subjected to assault and mental torture on the day of his arrest. Noting this, the Kerala Union of Working Journalist (KUJW) sought an independent inquiry by a retired judge in the matter.

Relying on the Arnab Goswami judgment, the KUWJ furthered the request to grant bail to Kappan, which eventually got rejected.

Now, several hearings later, Kappan is still awaiting bail.

Finally, in February, at the request of KUWJ, he was granted merely five-day interim bail to visit his ailing mother in Kerala.

On April 20, Kappan tested positive for Covid and was hospitalised in Mathura. KUJW filed a plea seeking his transfer to AIIMS. Even his wife Raihanth Kappan wrote to CJI NV Ramana for his immediate release, describing his distressing condition in Mathura hospital. Taking notice of the same, the Apex Court ordered the transfer of Kappan from UP to Delhi for better treatment.

Further, his wife wrote to the CJI that he was chained to a cot in the Mathura hospital ‘like an animal with a plastic bottle for toilet purpose for five days’ in April 2021. This undoubtedly forms a grave human rights violation.

At the beginning of June, he moved to Mathura Court to seek bail. He claims that the facts stated in the FIR are fabricated and manipulated. The source of these facts, he alleges, are media reports. The Mathura court recently adjourned the plea till July 5.

Recently, the Court dropped charges of breaching peace alleged against him in the first FIR. Although other more draconian charges which were part of the second FIR, including sedition and charges under UAPA, remain intact.

Decoding The Charges Against Siddiquie Kappan

The principal charges against Kappan stem from IPC 124A, UAPA, and the IT Act. On the very face of it, UAPA and sedition are infamous for being contentious since their inception. The UAPA 2019 amendment Act presently stands challenged by two petitions. Additionally,  the Supreme Court, in May, agreed to review the constitutional validity of Section 124A.

These laws are highly problematic as they confer unrelenting power to the police. Under sedition or UAPA, bail is an exception. Therefore, innocent or not, the investigation and trial stages are as close as it gets to sentencing.

Recently, a man from Tripura, who was arrested on terror charges under UAPA, finally got acquitted after five years for insufficient evidence.

Moreover, in a welcome judgment, the Supreme Court dropped sedition against senior journalist Vinod Dua. Also, while citing Kedar Nath judgement, the Apex Court reiterated that every journalist is entitled to protection in conformity with the law laid down in the 1962 case.

Regarding UAPA, recently, the Delhi High Court became the first to adjudge the contours of the Act while granting bail to three accused arrested in connection to Delhi riots. The Supreme Court stayed the judgement after an appeal by Delhi police, but the bail order was allowed.

Now that the initial FIR has also been quashed, Kappan’s case hangs at the back of two controversial laws, UAPA and sedition. After the Vinod Dua and Delhi Riots judgment, Kappan should ideally see an acquittal.

Evidentiary Limitations in Siddique Kappan Case

So far in the trial, nothing concrete has been presented by the prosecution to justify the charges. Of the two FIR’s filed against Kappan. In the first FIR, the police filed no inquiry report to support the charges, and hence, the FIR got quashed after six months by the Mathura Court order under Section 116 of CrPC for lack of evidence.

In the second FIR, there’s inadequate or inadmissible evidence. The prosecution’s case is based on his alleged links with PFI,  his role in the anti-CAA protests and his intention to cause disharmony using the Hathras incident. The entire case is hinged upon a police confession, which under Section 25 of the Evidence Act anyway renders inadmissible.

Kappan’s advocate, Willis Matthew, had also stated that he is willing to undergo a brain narco test to disprove the charges levelled against him. His lawyer’s only worry is that the tests must be conducted in Delhi by CBI and not in UP. Oddly enough, the prosecution, which seemed to favour the same, has not gotten it administered yet.

Also, as per Section 53 of the Evidence Act, the previous good character of the accused is given due regard while trying their case. As has been argued in Kappan’s bail application, Kappan has maintained good behaviour throughout and has a clean track record.

Grave Criminal Justice Violations

Journalist Siddique Kappan’s case presents an unfortunate example of human rights violation and curbs over journalistic reporting. While his case has at least gained some traction in the media, others are still caught up in the middle of an endless struggle of court appearance and bail applications. For instance, Aasif Sultan, a Kashmiri journalist arrested under similar charges, has been under detention for well over 1000 days.

An aspect that many such cases share is noncompliance with criminal law provisions. As they unfolded in Kappan’s case, the events revealed various criminal justice violations in contravention to Indian laws and Supreme Court guidelines,  laying bare the illegality of such detentions.

The basic tenets of justice require us to believe that an accused is ‘innocent until proven guilty’. However, the burden of proof is reversed as soon as UAPA is applied. The same is true for the present case.

Nonetheless, there exist various other rules specific to arrests and trials of the accused.

These are stipulated by the Indian Constitution and Criminal Procedure Code (CrPC) and those added through Supreme Court judgements like D.K Basu vs  State of West Bengal and others.

Basu was a landmark judgement that framed guidelines on the rights of the arrested persons, which were in Kappan’s case.

As per the guidelines, the police officer making the arrest is supposed to prepare a memo specifying the date and time of the arrest. The memo should be attested, either by a family member or by a respected member of the locality. The same was added in the CrPC through amendment in Section 41B.

In Siddiquie Kappan’s case, his family members did not know of his arrest until two days later. Hence, there is no question of them signing the memo. According to his lawyer, the time of arrest mentioned by the UP police was incorrect. He stated that the arrest took place at 10.20 am and not at 4.50 pm on October 5.

Another guideline that led to the making of Section 41D in the CrPC allows the arrested person to meet with his advocate during interrogation. The right to inform a family member of the arrest is also provided. However, neither of these provisions were met.

Further, Kappan was kept incommunicado for 48 hours after arrest. Only after the KUWJ filed a habeas corpus petition, the details of his detention were furnished by the UP police.

Arresting an individual with verifiable journalistic credentials while he was on his way to report violates the media’s fundamental right to freedom of speech. Right against custodial torture is a fundamental right implicit under Article 21 of the Constitution. Kappan also alleged police for physically and mentally torturing him during the interrogation after his arrest.

The most brutal violation, perhaps among all, was the denial of the right to proper treatment after getting diagnosed with Covid. As per the plea filed by KUWJ, Kappan had collapsed in the bathroom after testing positive for Covid. He already had diabetes and comorbidities at the time.

Lastly, a trial that runs endlessly without determining an accused’s guilt or innocence is a punishment in itself. It has been 255 days since Kappan was arrested. Neither has he been granted bail nor have the charges against him are proved. The wound on life and liberty of a citizen, a journalist, deepens each day he is not granted relief without just cause.

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