WHY CAN’T OUR POLITICAL ESTABLISHMENTS ACCOMMODATE VOICES LIKE KOVAN?

While striking down the Section 66A of the Information-Technology Act, the Supreme Court bench had observed, “It is clear that Section 66A arbitrarily, excessively and disproportionately invades the right of free speech and upsets the balance between such right and the reasonable restrictions that may be imposed on such right.”

The Supreme Court decision on March 24 this year officially declared a ‘draconian’ law finally draconian.

The observation focuses on ‘balance between right and the reasonable restrictions that may be imposed on right’, here in the context of the freedom of expression, and rightly so because the law enforcing agencies have had a pretty bad track record in that.

The SC bench of J. Chelameswar and Rohinton F. Nariman said, “If Section 66A is otherwise invalid, it cannot be saved by an assurance from the learned Additional Solicitor-General that it will be administered in a reasonable manner. Governments may come and governments may go, but Section 66A goes on forever. An assurance from the present government, even if carried out faithfully, would not bind any successor govt.”

Going by the bad precedent set by the law enforcing agencies, the apex court rightly refused to trust the words of the country’s political establishment.

Because the political administration has time and again acted so – with incidents like cartoons and Facebook posts being the reasons for charges like ‘sedition’ and follow-up arrests. Flurry of such cases and the widespread outrage over them were the central reason behind the SC’s decision on 66A.

But what about the concerned Sections of the Indian Penal Code (IPC)?

66A was obstructing the freedom of expression with incessant cases of its misuse, and the right logic was put forward that anything of serious nature causing some serious offence could well be handled by the concerned Sections of the IPC.

What about the misuse of the concerned Sections of the IPC?

There is a long list and yesterday’s arrest of a Tamil folk singer, S. Sivadas or Kovan, for writing and propagating songs with ‘allegedly derogatory’ lyrics on Tamil Nadu chief minister J. Jayalalithaa, has not come as a surprise.

Yes, but as it is to be, and as it is, the anger and the outrage is pouring all across – including from the political establishments anti to Jayalalithaa.

Activists or people like Kovan or many like him, like, for that matter, Jadavpur University professor Ambikesh Mahapatra who was arrested for circulating emails with cartoons of Mamata Banarjee, the West Bengal chief minister, are not known beyond their immediate field of activity or their immediate geographical spread – before their unjust arrest.

They have every right to criticise anyone within the democratic norms. The Constitution gives them this freedom.

But who takes guarantee of ensuring that when the administration acts on the contrary, compromising the rights given by the Constitution?

Courts have to intervene then like the top court did with Section 66A. But it doesn’t happen in a day and the struggle with the controversial IPC Sections takes years for saner voices to prevail, like we saw in Dr. Binayak Sen’s case.

Why can’t our political establishments accommodate voices like Kovan or Ambikesh Mahapatra or Binayak Sen or many others who have a different conscience than our ruling establishments?

What about culture of tolerance in our political establishments?

This May, the Kerala High Court observed in a case, “Being a Maoist is of no crime, though the political ideology of the Maoist will not synchronise with our constitutional polity. The police cannot detain a person merely because he is a Maoist, unless the police form a reasonable opinion that his activities are unlawful.”

This and other similar court observations follow from a landmark observation in 2011 given by the Supreme Court while granting bail to Dr. Binayan Sen. The court had said, “We are a democratic country. He may be a sympathiser. That does not make him guilty of sedition. If Mahatma Gandhi’s autobiography is found in somebody’s place, is he a Gandhian? No case of sedition is made out on the basis of materials in possession unless you show that he was actively helping or harbouring them.” (Here ‘materials’ means Naxalite/Maoist literature.)

If Kovan has done anything that goes against the state then his arrest can be justified but not on the pretexts like his songs are maligning the image of the state’s chief ministers or he is openly criticising the state sops selling liquor/alcohol – especially when ‘prohibition’ has become a sensitive issue across the country.

Kovan’s case reminds me the Marathi movie ‘Court’, India’s official entry to the Academy Awards (Oscars) this year. In the movie, the main protagonist is jailed time and again as police links his anti-establishment songs to the ‘alleged’ suicide of a person, even if there is evidence on the contrary.

Here are links to Kovan songs. I don’t understand Tamil but I am free, and rightly, to express my solidarity.

Shut down TASMAC and Amma TASMAC (Tamil songs – TASMAC is the Tamil Nadu government outfit that runs the liquor shops in question.)

And here is a photograph, sourced from Twitter, showing S. Sivadas or Kovan performing his art.

Kovan-Twitter

©/IPR: Santosh Chaubey – https://santoshchaubey.wordpress.com/

SECTION 66A IS LEGALLY DRACONIAN NOW

Section 66A is draconian and is not needed, the Supreme Court of India says.

And therefore, the logics like ‘Section 66A is draconian but needed’ have been put to an effective rest…..until the policymakers come with yet another on the similar lines.

After all, policymaking is their prerogative and they follow it religiously.

And like with this provision that came when the Information Technology (IT) Act of 2000 was amended in December 2008, the next law will take another fight then.

Because it is basically about playing around with words. The word formation of the scrapped down Section 66A says this.

“Any person who sends by any means of a computer resource any information that is grossly offensive or has a menacing character; or any information which he knows to be false, but for the purpose of causing annoyance, inconvenience, danger, obstruction, insult shall be punishable with imprisonment for a term which may extend to three years and with fine.”

Mind the terms ‘grossly offensive’, ‘menacing character’, ‘annoyance’ and ‘inconvenience’. These four elements from the ‘defining character of 66A’ are menacing enough to unwind any rational thinking.

How to define what is grossly offensive and who should define it?

Okay, if the consensus is reached that ‘something posted’ is grossly offensive then how to scale the ‘level of offensiveness’ and how even courts can deliberate objectively on something so subjective?

There are laws on treason and public harmony to take care of something that intends to do so. Similar is the case for defamation and slander. Section 66A is not needed for all that.

So what else is of ‘menacing character’ false in the same shadow of ambiguity as the ‘perilous sanctity of something grossly offensive according to Section 66A’.

Add to it – ‘annoyance’ and ‘inconvenience’ were ‘menacing’ enough elements mentioned capping the anomalies of 66A taking it to the extreme levels of ridiculousness.

How can we define if some expression is causing ‘annoyance’ or ‘inconvenience’ beyond personal perceptions to work as objectively as the ‘upkeep’ of legal sanctity requires?

Also, how can we equip our legal jurisprudence to ‘define, scale and level’ – ‘annoyance’ and ‘inconvenience’ – in countless expressions that flood the social media sites and other internet platforms – expressions that are about personal airs than being the acts of ‘treason, public unrest, defamation or slander. Like said above, if so, all such expressions can, absolutely logically, be tried in every Indian court with backing of well-laid laws.

It is well established (and self-evident time and again) that our policymakers feel equipped enough when they make such laws but certainly (and rightly), our best legal minds don’t correlate with what their legislative counterparts think on the ‘legal relevance of human intellect’ in such matters.

And they expressed it again today, loud and clear – telling them Section 66A is legally draconian now – terming it unconstitutional and striking it down.

©/IPR: Santosh Chaubey – https://santoshchaubey.wordpress.com/