New Delhi: In the 122 days that Kerala journalist Siddique Kappan has spent in custody, his habeas corpus petition challenging his arrest and the bail application filed for him have been adjourned by the Supreme Court six times, for periods ranging from four days to six weeks.
The habeas corpus petition for Kappan, who was arrested on 5 October last year while he was on his way to Hathras to report on the alleged gang rape and death of a Dalit woman, has been pending before the apex court for four months now while his bail application was filed three months ago.
“From time immemorial a habeas corpus petition is decided on a priority basis in all countries governed by the rule of law. It is generally decided in a week’s time or a maximum of 15 days,” Kappan’s lawyer Wills Mathews told ThePrint.
Matthews noted that since the “foundation of the proceedings against Mr Kappan was prima facie illegal and in violation of the guidelines of the apex court … it is a sufficient ground for filing a habeas corpus and its maintainability”.
The FIR against Kappan, registered on 7 October in Mathura, charges him 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.
“In this case, I don’t see Mr Kappan behind bars, I see the media behind bars, because ultimately they have nothing against Kappan. He is still behind bars being a media professional,” said Matthews.
“I fear that the ultimate impact of this is that the media will get terrified. Slowly and steadily it is going to affect the freedom of speech and expression and the right to be informed for the citizens,” he added.
Notice issued to UP govt after a month by SC
A day after Kappan’s arrest on 5 October, the Kerala Union of Working Journalists (KUWJ) had filed a habeas corpus petition, challenging his custody. The petition argued that the arrest was illegal and unconstitutional and contended that Kappan’s detention violates his fundamental rights under articles 14 (right to equality), 19 (freedom of speech and expression) and 21 (right to life) of the Constitution.
The petition first came up a week later, on 12 October, before a bench headed by Chief Justice of India S.A. Bobde. The court, however, expressed its disinclination to entertain the petition and nudged senior advocate Kapil Sibal, appearing for KUWJ, to approach the high court instead. The bench then listed the matter after four weeks and also refused to issue notice to the UP government on the matter.
Meanwhile, on 29 October, an application was filed alleging that multiple attempts from KUWJ and Mathews to meet Kappan since his arrest failed. A bail application was also filed.
The court issued notice seeking the UP government’s response, but only on the next date of hearing, which was scheduled for 16 November 2020. Even then, it reiterated that the petition could still be sent to the high court after responses were filed, and said that the court was “trying to discourage Article 32 petitions”. Article 32 of the Constitution grants citizens the right to move the top court if their fundamental rights are violated.
It was after 43 days in custody, on 17 November, that Kappan finally spoke to Mathews on the phone for five minutes.
Case to come up in March next
The matter was next taken up on 20 November, when the UP government filed an affidavit saying that it arrested Kappan to prevent him from creating a law and order problem in Hathras. It claimed that Kappan was apprehended with incriminating evidence, including pamphlets that sought ‘Justice for Hathras victim’.
It also denied KUWJ’s claims that the arrest was illegal and said that Kappan’s family was duly informed of his arrest. The affidavit also noted that a lawyer had appeared for Kappan before the magistrate in Mathura, where he was produced on 6 October, after his arrest.
After UP government counsel, Solicitor General Tushar Mehta told the bench that the state had no objection to Kappan’s lawyer meeting him, the bench adjourned the matter. Kappan’s lawyer met him on 21 November, and got his signatures on the ‘vakalatnama’ — a document that empowers a lawyer to act for and on behalf of his client.
The KUWJ then filed an affidavit on 30 November alleging that Kappan was beaten with a lathi, slapped thrice and mentally tortured while in custody.
The case was listed again on 2 December but adjourned after Sibal offered to implead Kappan’s wife and daughter in the petition. This was after the bench questioned KUWJ’s authority to file the plea for Kappan.
On 9 December, the UP government filed another affidavit, defending the arrest. When the matter was listed again on 14 December, Sibal sought time to respond to the UP government’s new affidavit.
The case came up again on 22 January and Mehta sought an adjournment till the next week. Sibal did not oppose this, but demanded that Kappan be allowed to have a video conference with his mother. The court allowed this plea and adjourned the matter.
The court order, however, finally directed the matter to be listed after six weeks. The case will, therefore, come up next in March.
Interim bail plea to meet bedridden mother
Last week, Kappan filed an application seeking interim bail of five days citing his mother’s ill health.
The application stated that Kappan’s 90-year-old mother is “bedridden and extremely unwell”, and has been “repeatedly demanding to talk” to Kappan.
“Whenever she gains consciousness, she is demanding to meet her son, and requesting everyone that it is the last wish of a Mother to see her son,” it added.
The application says that while the Mathura jail officials arranged for a 10-minute video call with Kappan’s mother on 28 January, she “could not respond or look at the screen of the mobile, as she is presently very critical and in Hospital”.
In a letter to the Supreme Court registrar on Tuesday, Kappan’s lawyers have now sought an urgent hearing of his interim bail plea. The matter is yet to be listed.
Sibal draws parallels with Goswami’s case
Over the course of the trial, several allusions and parallels have been made between Kappan’s case and Republic TV Editor-in-Chief Arnab Goswami in the 2018 abetment to suicide case, where he was granted bail promptly by the Supreme Court.
On 11 November last year, Sibal had referred to Kappan’s case, during Goswami’s bail hearing.
Sibal, who was appearing for the Maharashtra government, had told the Supreme Court, “A Kerala journalist was arrested by UP Police when was going to Hathras to report. We came to this court under Article 32. The court said go to the lower court. The petition was posted after four weeks. Such things are also happening.” Goswami was granted interim bail the same day.
KUWJ’s affidavit, filed on 30 November, had also cited the Supreme Court’s observation in Goswami’s case that “the doors of this Court cannot be closed to a citizen who is able to establish prima facie that the instrumentality of the State is being weaponized for using the force of criminal law”.
During the hearing in Kappan’s case on 2 December, Sibal referred to Goswami’s case again. That day, CJI Bobde had asked Sibal again whether he was willing to go to the court below.
Sibal had, however, refused, asserting that the case involves “grave violations” and that the FIR was false. He had then also pointed out that in Goswami’s case, the court had interfered even though his bail application was pending in the trial court.