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/

LATE NIGHT SUPREME COURT HEARING SHOULD BE SEEN IN THIS CONTEXT

India may mean many things to many but one thing is common – it has a robustly functional democracy – a 2:30 AM hearing on Yakub Memon in the Supreme Court shows it.

Yes, Yakub Memon’s case is not going to be a beginning to undo the chasm and malaise that beset Indian democracy.

It is not going to address the problem of ‘legal remedy getting costlier’ and therefore being not available to the majority of the population.

India’s top court, in an unprecedented move, in a first, opened after midnight to hear someone who was going to die in next few hours after being given death sentence.

And the development is indeed a positive factors, is an indicator of how strong are democratic values – irrespective of the reasons working behind it.

The point is – India’s apex court worked on it – even after rejecting Yakub Memon’s last legal options just few hours earlier.

Yes, India’s democracy is ‘robustly functional’ because India is the world largest democracy and has been so for nearly 70 years in spite of multitudes of problems working overtime to drag it backward. Its future is rightly expected to keep positive promises to work for.

In fact, India is the only democracy in the world where large population groups of different religions coexist under a common Constructional administration. Yes, religion does give them some specific leverages but that is mostly individual in nature and doesn’t intervene with the nation’s governance.

Yes, it is daydreaming to expect that this unprecedented late night/early morning hearing by the Supreme Court is going to set a trend where people with such ‘extreme grievance conditions’ will be able to knock the apex court at any hour of the day.

Majority will simply not get the coordinates required – lawyers and round the clock coverage – that Yakub Memon got and that made it possible – something that made the apex court take cognizance of a late night plea to conduct a hearing.

Debates like ‘death penalty has no place in a civilized world’ have their own validity but we need to be equally sensitive to the issue that it is an endless debate between ‘being right’ in abolishing death penalty and ‘being justified’ in demanding harshest punishment to the perpetrators (including capital punishment).

And our democracy gives space to both, or even to them who are still not clear what is their viewpoint.

And the late night hearing by the Supreme Court on plea of Yakub Memon’s lawyers and by a battery of lawyers working to abolish the death penalty from Indian penal system should be seen in this context.

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