Without question, the despicable, despotic and dastardly manner in which an eminent lawyer of the Supreme Court named Ashwini Kumar Upadhyay has been arrested by the Delhi Police with ugly scenes of helpless women being dragged and pushed in front of Connaught Place Police Station in Delhi who were opposing the arrest has to be strongly condemned in the strongest possible words. Did Ashwini say anything even a single word against Muslims? Certainly not.

To be sure, Ashwini had in fact promptly himself clarified also that his event had concluded by 12 pm and those who had raised ugly slogans against a particular community had done it around 5 pm. He himself had strongly condemned the use of provocative slogans! Why the hell was he then arrested most brazenly by the Delhi Police? Why the real culprits who were shown in the video uttering most foul language have not been arrested instead by the Delhi Police? The Delhi Police has certainly not covered itself with glory by this!

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!

Needless to say, the ANI had reported that the Supreme Court lawyer and former BJP spokesperson Ashwini Kumar Upadhyay has been arrested by the Delhi Police along with five others in relation to provocative anti-Muslim sloganeering which took place on August 8 in Delhi following his rally against colonial-era laws. Did Ashwini Kumar say anything personally against Muslims or directed anyone to say so? I have not heard him saying a single word that is provocative nor saw him directing anyone to do so. How can the police then arrest him so swiftly for an act that is done by someone else? This is what I find most baffling!

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!

Even my own best friend in life named 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 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 Hindu 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 then why is it still continuing in India in 1994? It was however outlawed just recently by PM Narendra Modi led government in 2019!

Anyway, coming back to the present, just because a video had later surfaced with a few people calling for genocide of Muslims cannot be a valid reason for arresting Ashwini because he cannot be seen anywhere raising provocative slogans or supporting or cheering anyone raising provocative slogans! If he could be seen doing so then his arrest would have made sense. But that is certainly not the case here! Supreme Court lawyers must certainly speak up for him just like they spoke when Mahmood Pracha's office was raided suddenly in mid night. This is the crying need of the hour also!

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.

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 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!

It cannot be also glossed over that none other than the Chief justice N V Ramana coincidentally on Sunday itself had himself expressed concern at custodial torture, saying the threat to human rights and bodily integrity are the highest in police stations and even the privileged are not spared third-degree treatment. While maintaining that human rights and dignity are sacrosanct, the CJI NV Ramana had said, Custodial torture and other police atrocities are problems which still prevail in our society. In spite of constitutional declarations and guarantees, lack of effective legal representation at the police stations is a huge detriment to arrested/detained persons. The decisions taken in these early hours will later determine the ability of the accused to defend himself. The same holds true for arrest also and arrest should be done only in rare cases and not at the drop of a hat! It must be also stated here that CJI NV Ramana was delivering the keynote address at an event organised by the National Legal Services Authority of India (NALSA), to launch the vision and mission statement and the mobile app for NALSA.

It certainly goes without saying that any person whosoever he/she may be who raised the most condemnable and objectionable slogans against Muslims must be arrested most promptly but why an eminent Supreme Court lawyer named Ashwini Kumar Upadhyay who himself on his own had personally strongly condemned with full force the ugly, reprehensible and obviously the most un-parliamentary language and most vituperative slogans was instead himself arrested by the Delhi Police all of a sudden and not the real culprits who could be easily seen also in the video itself? This is undoubtedly beyond comprehension and most baffling indeed! The arrest of eminent Supreme Court lawyer Ashwini Kumar Upadhyay was totally uncalled for and it still seems beyond belief that how can the police so brashly arrest a dignified person who is also an eminent public figure himself clearly condemning the provocative slogans without mincing any words and clearly distancing himself from the same? It must be underscored here that the Delhi Police must release him forthwith now itself and instead go after the real culprits instead which is its job also!

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 common civil code which Sageer Khan also used to speak always with me and so he has done nothing wrong in it! What has happened with a Supreme Court lawyer named Ashwini Kumar Upadhyay has definitely saddened me to no end and the apathetic 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!

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? Why should the discretion bombs in the form of may in rape laws not be defused promptly due to which we rarely hear rapists being sent behind bar for life or being hanged!

Another petition filed by him before Supreme Court seeks uniform civil code. What is wrong in what he is doing? 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.

All said and done, it must be said at the risk of repetition that brazenly arresting Ashwini Kumar Upadhyay who is himself an eminent lawyer, an eminent public figure and had even worked as spokesperson for BJP by the Delhi Police cannot be justified from any angle and it is definitely an egregious violation of his legal rights and he must be set free most promptly right now itself! Supreme Court lawyers as also all the lawyers in India must definitely speak up most promptly in his favour outrightly as he has said nothing wrong against anyone and he enjoys also an impeccable reputation of always raising nationalist demands for which he certainly cannot be faulted by anyone who is in his/her right senses! I fervently hope that good sense prevails over Delhi Police also and it releases him at the earliest and arrests the real culprits!

In essence, there was prima facie no valid reason to arrest him and it is a brazen arrest which is clearly guilty of violating his legal rights and there is nothing wrong if Delhi Police even now accepts its grievous error that it has committed by arresting him and rectify it at the earliest by releasing him forthwith and apologizing to him! It will certainly enhance its own reputation if it does so and go after the real culprits as Ashwini has himself demanded also! Of course, this is what the current situation so urgently demands also!

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