It takes no Albert Einstein to conclude that the Delhi Police had no germane reason to arrest eminent Supreme Court lawyer Ashwini Kumar Upadhyay who is known widely for speaking up against all the inadequacies in our prevalent legal system and who is best known for his various PILs that he keeps filing from time to time and the most famous being on uniform civil code which has certainly brought him in the limelight among others. Police could not produce any credible and incriminating evidence against Ashwini for his alleged involvement in instigating the mob who shouted provocative slogans against Muslims.

This alone explains why the learned Metropolitan Magistrate Udbhav Kumar Jain after hearing both the sides promptly granted bail to Ashwini Kumar Upadhyay who was arrested in connection with the anti-Muslim speeches made on August 8 at an event held at Jantar Mantar. Videos of mob at the gathering shouting slogans against Muslims had emerged. Upadhyay expressed shock over what was said and called for the arrest of those who shouted such provocative slogans. Upadhyay had organized a meeting calling for the repeal of colonial-era laws on occasion of the anniversary of the Quit India movement of August 8, 1942 against the Britishers. He has been asked to deposit a surety of Rs 50,000.

Let me reiterate: I always stand against arbitrary arrest or even arbitrary harassment of any lawyer or any individual by police without any just cause. I had spoken up most vociferously even when mid-night search was conducted in the office of another eminent lawyer Mahmood Pracha early this year and fortunately my humble views in form of a legal article titled Whither Investigation? Intimidation Of Top Lawyer Pracha Fighting Delhi Riot Cases was published also in Kashmir Times newspaper online edition dated 21 January, 2021 which can be independently checked also! I will speak up even now with same vigour that arrest of lawyer and that too an eminent Supreme Court lawyer who always speaks most vocally for equality and uniformity at the drop of a hat as we see here by the Delhi Police has to be strongly condemned and cannot be justified under any circumstances!

It must be mentioned here that the rally that was called upon by Ashwini Kumar Upadhyay in Delhi had hundreds of people in attendance and had called for a march under the 'Bharat Jodo Movement'. The rally had sought repeal of colonial era laws and to make laws uniform for all citizens across India. What is wrong in doing this? Not a single provocative slogan was ever raised by Ashwini, at least not to the best of my knowledge! Then why the hell was he arrested by the Delhi Police? If he raised provocative slogans or provoked anyone then his arrest certainly stands cent percent justified but that is certainly not the case here as he is seen nowhere raising any such provocative slogan or provoking anyone to do so! Still why was he arrested? That is the big moot question!

It is known all too well as stated earlier that Ashwini Kumar Upadhyay is most well known all over in India for his genuine public interest litigation petitions before the Supreme Court which have a real good cause behind them also for which he must be not just commended but also honoured and not instead sent behind bars as we see most unfortunately right now happening before our eyes! In one of his petitions, the top court had just recently on August 9, 2021 itself directed that the criminal cases against Members of Parliament (MPs) and Members of Legislative Assemblies (MLAs) cannot be withdrawn without prior sanction of the concerned High Court which is the best possible thing that can ever happen in our country because we all know very well how easily cases are withdrawn by the party in power in any State on assuming power without obtaining sanction from anyone! Upadhyay has also filed a plea in the Supreme Court last month against the Indian Penal Code, seeking a judicial panel or a body of experts to draft a 'comprehensive' and 'stringent' penal code for ensuring rule of law and equality. What is wrong in demanding so?

Bluntly put: Why should the discretion bombs in the form of may in awarding sentences in rape laws not be defused promptly due to which we rarely hear rapists being sent behind bar for life or being hanged! Why there is no mandatory death penalty for gang rape? Why only a few rapists have been hanged in last so many decades? Why the rich and the influential manage to escape with the help of a battery of senior lawyers? Similarly there are so many other shortcomings which certainly merit a thorough revamp of our entire criminal laws including the IPC of 1860 enacted by the Britishers.

Another petition filed by him before Supreme Court seeks uniform civil code. What is wrong in what he is doing? This has been demanded even by many Muslims also from time to time. Candidly speaking, I am always termed pro-Muslims by many of my close friends from time to time in my life but I know that I am neither pro-Muslim nor anti-Muslim and I treat all Indians no matter to which religion he/she may belong as one and this was what my best friend Sageer Khan always advocated also way back in 1993-95 which I always remember and still cherish and try to emulate myself also! Ashwini Kumar Upadhyay was also advocating the same uniform civil code which Sageer Khan also used to speak always with me and so he has done nothing wrong in it!

Sageer Khan always used to confide in me for two years relentlessly from 1993 to 1995 that laws must be the same for one and all. He used to lash out against Article 370 in Jammu and Kashmir. He used to furiously resent that polygamy was abolished for Hindus in 1955 but for Muslims it is still senselessly continuing in 1994-95 due to which population is increasing so rapidly thus increasing poverty, unemployment and what not and which is still most senselessly continuing in 2021 for them even now, so will the Delhi Police arrest Sageer Khan and put him behind the bars if he also holds a similar public rally and some rowdy people without his consent say anything wrong? He used to always resent in my presence and even in my absence and I used to overhear him several times saying that:
Why when Hindus never demand temple in Mecca or Medina which are Muslim sacred places nor are Muslims ever ready to concede a single place anywhere in not just Saudi Arabia but in any other Gulf country nor at any other place in India sacred to Muslims do Muslims in India always keep fighting over temple sites in Ayodhya, Kashi and Mathura which are Hindus most sacred sites since time immemorial and over which Muslims must never fight with Hindus under any circumstances? He always said that offering namaz at disputed sites is the worst sin which he would never commit!

He used to always feel that Muslims in India enjoy maximum liberty all over the world and even in Pakistan Indian Muslims called Mohajjirs are discriminated and so is the case with people of PoK, Baluchistan, Sind, Karachi etc! He used to wonder that when triple talaq can be abolished in Pakistan in 1961 and so also in many other Muslim countries then why is it still continuing in India in 1994? It was however outlawed just recently by PM Narendra Modi led government in 2019!

What has happened with a Supreme Court lawyer named Ashwini Kumar Upadhyay has definitely saddened me to no end and the apathetic and most callous manner in which he has been arrested so inexplicably by the Delhi Police is most uncalled for and has to be condemned most strongly in the best parliamentary language which I do also most vocally! Can any one single word be attributed to Ashwini Kumar Upadhyay for saying anything against Muslims in his rally held at Delhi? Then why the hell has he been arrested by the Delhi Police and not those who were using most vulgar language as was shown in the video itself?

It must be also checked as to whether the video itself is genuine or fake! If it is fake then it must be investigated as to who circulated this fake video which created so much of panic! Ashwini has denied any involvement in the sloganeering. He has himself said explicitly that:
I have submitted a complaint to the Delhi Police to examine the video which went viral. If the video is authentic, then strict action should be taken against the persons who were involved in it.

While defending Upadhyay, senior advocate Vikas Singh who is also the President of Supreme Court Bar Association and is eminent for always speaking for truth and justice as we all saw most recently also in case of the suspected murder of ADJ Uttam Anand in Dhanbad and argued that he would be the last person to defend those who make such speeches. He said that:
I will be the last person to defend someone making such a hate speech. The country will get completely divided if we allow such speeches. The Supreme Court Bar Association President Vikas Singh was one of the four senior advocates to represent Upadhyay in this case. The others too were senior, very experienced, men of repute and very eminent advocates of the top court – Sidharth Luthra, Pradeep Rai and Gopal Sankaranarayanan.

To be sure, Vikas Singh further added that:
We are all appearing not only because [he is a] respected advocate, this kind of arrest can't be permitted...it is clear from the video that it is at 5 pm...Police can't indiscriminately arrest anybody when there is no plausible suspicion also. Suppose allegation was that it was in his presence, I wouldn't have defended him... What Vikas Singh has submitted is absolutely right!

What's more, Vikas Singh also very rightly pointed out that:
Police can't indiscriminately arrest anybody when there is no plausible suspicion...Do they have any proof about my involvement? Prosecution itself said they have to analyze the videos. Vikas Singh then further stated that the prosecution's argument that Upadhyay failed to report the incident to the Police falls flat on its face for the reason that he was not present there at the time. He asked that:
How will I inform when I was not there?

It cannot be just glossed over that Ashwini Upadhyay had personally distanced himself from the provocative slogan raising stating that his event had concluded by 12 pm while slogans were raised around 5 pm. This itself demonstrates that there is more to it than meets the eye. Ashwini Upadhyay had told media that, The rally was from 10 to 12 pm. Whereas the sloganeering happened around 5 pm. Our rally was outside park hotel but the slogans were given near Parliament house police station. I do not know who they were.

Furthermore, Vikas Singh then also added that:
Had the incident happened in front of me, I would have complained. I was there in morning. The incident happened in evening after which videos went viral. Had the incident happened in morning, why did they register FIR at 11 at night? There is no direct nexus. They can't arrest anyone only to put a show before Public.

As we see, another eminent Supreme Court lawyer Sidharth Luthra added that there was distinction in role and a person who left the spot couldn't be said to have a common intention with people, who subsequently committed the alleged offences. He also very rightly underscored that:
If a man has left the spot, you can't claim a common intention against him. The CDR is with the police. They should have verified if he had left the spot before the untoward incident before arresting him.

Yet another eminent and senior Supreme Court lawyer Gopal Sankaranarayanan added that:
Can we keep a man in custody while Police is yet to examine the videos and determine his involvement? It's prosecution duty to show his participation. There is quite merit in what Gopal has said. No wonder, Ashwini had to get bail!

This begs the moot question: Is it then justified that a Supreme Court lawyer with proven credentials who has an impeccable reputation also and is an eminent public figure also who has even worked himself as BJP spokesperson is arrested most promptly at the drop of a hat when he did not say even a word wrong?

The larger question worth billion dollars that also arises here is: Why in some other cases when leaders raise themselves provocative slogans are they not similarly arrested? This is what I find most despicable and never on earth can this be ever justified no matter how much anyone no matter how eminent he/she may be and no matter how high public office he/she may be occupying may try to justify!

On the contrary, Ashwini Kumar Upadhyay had also later put a video stating that if the video is true, then action should be initiated against those who raised the slogans! Still why the hell was Ashwini arrested so brazenly? The Delhi police has a lot of explaining to do on this!

We all know very well especially those who are in the legal profession that the Apex Court keeps reiterating time and again that arrest should be an exception and not the rule as we saw in case of Joginder Kumar vs State of UP AIR 1994 SC 1349: 1994 SCC (4) 260 wherein it was most commendably held also that, No arrest can be made because it is lawful for the police officer to do so. The existence of the power to arrest is one thing. The justification for the exercise of it is quite another. The police officer must be able to justify the arrest apart from his power to do so.

Arrest and detention in police lock-up of a person can cause incalculable harm to the reputation and self-esteem of a person. No arrest can be made in a routine manner on a mere allegation of commission of an offence made against a person. It would be prudent for a police officer in the interest of protection of the constitutional rights of a citizen and perhaps in his own interest that no arrest should be made without a reasonable satisfaction reached after some investigation as to the genuineness and bona fides of a complaint and a reasonable belief both as to the person's complicity and even so as to the need to effect arrest.

Denying a person of his liberty is a serious matter. The recommendations of the Police Commission merely reflect the constitutional concomitants of the fundamental right to personal liberty and freedom. A person is not liable to arrest merely on the suspicion of complicity in an offence. There must be some reasonable justification in the opinion of the officer effecting the arrest that such arrest is necessary and justified. Except in heinous offences, an arrest must be avoided if a police officer issues notice to person to attend the Station House and not to leave the Station without permission would do!

It certainly merits no reiteration also that this must be implemented in letter and spirit! But if Supreme Court lawyers like Ashwini Kumar Upadhyay are instead themselves arrested so brazenly then this certainly tantamounts to making a huge mockery of the Supreme Court itself which cannot be justified under any circumstances by anyone not even the Delhi police itself! It is the Delhi Police itself which must really comprehend this also in its own best interest before it gets rapped by the Apex Court!

No wonder, Delhi Police's specious claims of arresting Ashwini Kumar Upadhyay stands outrightly rejected before the lower court as is being splashed in various news portals and news channels. Now if it still wants to have eggs on its face and appeal against it then certainly no one of us can do anything! One can only just pity their wisdom that they don't even know inspite of knowing law that when can a case be called prima facie with a valid and good ground to arrest any individual!

Sanjeev Sirohi, Advocate,
s/o Col BPS Sirohi, A 82, Defence Enclave,
Sardhana Road, Kankerkhera, Meerut – 250001, Uttar Pradesh