New Delhi: Anyone arrested in India for any crime is entitled to a lawyer of their choice — a right guaranteed under the Constitution.
Siddique Kappan, 41, a Kerala journalist based in the national capital, was arrested on 5 October on his way to Hathras to report the aftermath of the alleged gang rape and death of a Dalit woman. The Uttar Pradesh Police said they suspected he planned to create unrest in Hathras.
It has since taken Kappan 43 days in custody — with a petition in the Supreme Court, an application before the magistrate in Mathura, and another application in the apex court — before he finally got to even speak to a lawyer, let alone officially sign him as his legal representative.
Advocate Wills Mathews, who is the lawyer for the Kerala Union of Working Journalists (KUWJ) and has been trying to get in touch with Kappan for weeks now, told ThePrint that he finally got a phone call from him Tuesday evening.
Mathews told ThePrint, “Around 4-5 pm, Siddique Kappan contacted me from the jail. We talked for almost 5 minutes.”
“I found him to be healthy and okay. I enquired about his welfare. He said he is getting medicines, food and that everything is alright. He sounded fine,” Mathews said.
An arrest at toll plaza
On 14 September, a 20-year-old Dalit woman from Uttar Pradesh’s Hathras was allegedly gang-raped and assaulted by four men. She was left in a critical condition, with severe injuries to her neck and spine, and succumbed to her injuries 15 days later on 29 September.
The UP Police triggered a fresh row when it forcibly cremated the woman’s body without the presence of her family members, on the night of 29 September. Amid growing tensions, the Hathras administration imposed Section 144 of the Code of Criminal Procedure (CrPC) in the district and sealed the state’s borders till 31 October.
Kappan, who has been working as a journalist for a decade and currently works with the news portal Azhimukham as a “regular contributor”, left a message for his office on 4 October, informing them that he would be traveling to Hathras the next morning. However, before he could reach Hathras, he was arrested at a toll plaza in Mathura.
The police had initially arrested him, along with three others, under Section 151 of the CrPC, which allows an arrest to prevent commission of a cognisable offence.
According to the arrest memo, he was arrested at around 4:50 pm on 5 October. However, Mathews told ThePrint that according to Kappan, the latter was actually arrested at around 10:20 am in the morning on 5 October. He said Kappan conveyed the correct time to him over the brief phone call Tuesday.
UAPA, Sedition, IT Act imposed
A day after his arrest, the KUWJ filed a habeas corpus petition in the Supreme Court, demanding his release. Kappan is the elected secretary of the Delhi unit of KUWJ. This was after the KUWJ office-bearers as well as Kappan’s family had been unable to contact him or get any information on his whereabouts for over 24 hours since his arrest.
The petition said the arrest was “with a view to obstruct the discharge of duty of the detenu in the capacity as journalist”. It alleged that the Supreme Court’s guidelines for arrest and detention were violated, as neither his family members, nor his colleagues were informed about the arrest or the place of his detention.
It was a day after this petition was filed that an FIR was registered on 7 October in Mathura, charging Kappan with Section 124A (sedition), 153A (promoting enmity between different groups on grounds of religion, etc) and 295A (deliberate and malicious acts, intended to outrage religious feelings of any class by insulting its religion or religious beliefs) of the Indian Penal Code (IPC), along with provisions of the Unlawful Activities (Prevention) Act (UAPA) and the Information Technology Act.
Failed attempts to get vakalatnama signed
KUWJ and Mathews have since alleged that multiple attempts from their side to meet Kappan since his arrest have failed.
According to an application filed by KUWJ on 29 October in the Supreme Court, when Kappan was produced in the trial court in Mathura on 6 October, the magistrate prohibited him from speaking to a local lawyer who Mathews had contacted to represent him. While Kappan was sent to 14-day judicial custody that day, the lawyer was asked to meet him and get the vakalatnama signed from the jail.
“The Detenu (Kappan) was prevented from signing a vakalatnama for authorising his counsel to act on his behalf,” the application said. A vakalatnama is a document that empowers a lawyer to act for and on behalf of his client.
At least two local lawyers have since withdrawn from the case.
On 16 October, Mathews travelled to Mathura from Delhi and filed an application in the court of the chief judicial magistrate, Mathura, to meet Kappan. Three former and current officials of KUWJ also sought permission to meet him.
This application was, however, rejected after Mathews had to shuttle between the Mathura New temporary jail where Kappan was kept and the Mathura CJM court more than once, as each directed him towards the other, refusing to give him permission to meet the accused.
Among other things, the application subsequently filed in the Supreme Court has therefore demanded a direction to the jail authorities to allow Kappan to “sign a vakalatnama authorising his legal representatives to act on his behalf in his legal defence”.
On 29 October, along with the application requesting access to Kappan, a bail application was also filed in the Supreme Court, in the same writ petition.
‘The prisoners in this jail will die’
In fact, Mathews managed to get quite close to Kappan on 16 October. His affidavit filed in the Supreme Court says he rushed to the jail complex, which he said appeared to be a school temporarily converted into a jail.
He managed to enter the jail complex, only to hear “cries of inmates through the windows, at least 4 windows on the ground floor and 4 windows on the first floor of the jail”.
“The inmates were crying loudly for the attention of the deponent (Mathews) and it was a horrible scene. None of the inmates were wearing masks,” the affidavit attached with the application said, submitting that “if immediate steps are not taken, the prisoners in this jail will die in helplessness”.
The application, therefore, also seeks a direction to the district judge, Mathura or a high court judge to immediately visit the jail “to enquire on human rights violations in the jail and in the courts of Mathura”.
KUWJ’s habeas corpus petition has come up before the Supreme Court twice since it was filed. Both times, the court has questioned the lawyers for the petitioner, as to why they do not approach the high court instead.
When the case came up first on 12 October, the court allowed the lawyers to amend the petition, since the initial petition filed on 6 October did not have the details of his arrest and the subsequent FIR that was filed.
However, KUWJ’s application filed in the apex court has since highlighted its “helplessness” to seek other remedies or even amend the petition, since its lawyers have been denied access to Kappan, as well as the “helplessness” which it says exists “among with journalistic fraternity in discharging their duty fearlessly considering the fate of the present Detenu (Kappan)”.
KUWJ, the application says, “is left with no other alternative effective remedy other than filing the present application as the applicants nor their lawyer could not meet the accused for conference and for getting the vakalatnama signed”.
Mathews also said they “can’t go to any other court without a personal conference with the client”.
During the last hearing Monday (16 November), the court issued notice to the UP government and the UP Police. The petition will now be heard Friday. However, the Supreme Court has remarked that the petition can still be sent to the high court, instead.
This report has been updated to accurately reflect that it took Kappan 43 days in custody, and not 49, before he finally got to speak to a lawyer.
Why news media is in crisis & How you can fix it
India needs free, fair, non-hyphenated and questioning journalism even more as it faces multiple crises.
But the news media is in a crisis of its own. There have been brutal layoffs and pay-cuts. The best of journalism is shrinking, yielding to crude prime-time spectacle.
ThePrint has the finest young reporters, columnists and editors working for it. Sustaining journalism of this quality needs smart and thinking people like you to pay for it. Whether you live in India or overseas, you can do it here.