Stifling dissent

The arrest of a cartoonist and the detention and torture of an anti-nuclear activist without a warrant are only the latest instances of the Tamil Nadu government’s low level of tolerance of dissent in any form.

G. Bala, arrested by the Tirunelveli police in Chennai, being taken to the magistrate's court in Tirunelveli on November 6.

THE recent arrest of the Chennai-based cartoonist G. Bala and the illegal detention of the Tirunelveli-based lawyer-activist Semmani alias Rajarathinam by the Tirunelveli police highlighted, in different ways, the State government’s intolerance to voices of dissent, however feeble they might be.

While the cartoonist was arrested for a caricature on the suicide of a family of four on the premises of the Tirunelveli Collectorate on October 23 after they were harassed by a moneylender for their inability to repay a usurious loan, Semmani’s detention, activists claimed, was a case of sheer police high-handedness. The police are apparently chagrined that he has been assisting activists and fisherfolk protesting against the Kudankulam nuclear power project in the hundreds of cases that have been slapped against them.

The 36-year-old freelance cartoonist’s arrest, however, has revived the debate on Article 19 of the Constitution, which guarantees freedom of speech and expression but with “reasonable restrictions”. On the basis of a letter from the Tirunelveli District Collector, Sandeep Nanduri, who found the caricature that was posted on the cartoonist’s Facebook page “offensive, derogatory and demeaning”, the Tirunelveli District Crime Branch filed a first information report (FIR) on November 1 against Bala under Section 501 of the Indian Penal Code (IPC) and Section 67 of the Information Technology (IT) Act.

A posse of police personnel, led by a woman inspector, arrived at Bala’s house in Chennai in the wee hours of November 5, forced him into a police van after seizing his mobile phone and laptop computer and drove him to Tirunelveli. The police did not allow the cartoonist to call anyone. “It is a clear violation of the guidelines on arrest that the Supreme Court has laid down in the D.K. Basu case, now known as the ‘Ten Commandments’ for law enforcing agencies,” said S. Vanchinathan, the lawyer for the cartoonist.

Human rights activists claimed that the police did not produce him before a magistrate, as mandated by law. Instead, they detained him at a Tirunelveli police station for hours. “When the magistrate enlarged him on bail on two sureties, the police opposed the bail and tried to detain him inside the court hall itself. It prompted the magistrate to intervene and ensure his release,” Vanchinathan told Frontline . Bala has been maintaining that he had no intention, malicious or otherwise, to defame anyone. “It [the caricature] was drawn in raw anger to expose a system that had failed to save innocent children from death due to the usury menace,” he said.

The FIR, registered at 6 p.m. on November 1 and a copy of which is available with Frontline , says that the complainant, in a letter to the police, expressed a wish to lodge a complaint against Bala. It states: “In the cartoon he depicts the burning body of a baby which is watched by 3 persons without clothes and who are marked as 1) Nellai [Tirunelveli] Police Commissioner, 2) Nellai Collector and 3) CM. The three persons are depicted as naked and carrying currency notes which are used to cover their private parts.” The FIR further says that the cartoon depicted the Chief Minister in a “highly derogatory and belittling way” and concludes that “it is defamatory”. A criminal case was registered and the FIR, along with the petition, was sent to Judicial Magistrate No.1, Tirunelveli, after 6 p.m., the police claim.

The other “aggrieved persons” in this incident—the Tirunelveli Police Commissioner and the Chief Minister—have chosen to stay out of the case. The police, Vanchinathan claimed, transgressed their legally mandated jurisdiction. Section 501 of the IPC, one of the provisions invoked against Bala, notes: “Whoever prints or engraves any matter, knowing or having good reason to believe that such matter is defamatory of any person, shall be punished with simple imprisonment for a term which may extend to two years, or with fine, or with both.” It is a non-cognisable offence and hence bailable and should be tried in a Sessions Court.

If an offence is a cognisable one, the police has the authority to arrest the accused without a warrant and to start an investigation with or without the permission of a court. But in non-cognisable offences, the police do not have the power to arrest the accused without a warrant from the jurisdictional magistrate or undertake an investigation without a court order. “After filing an FIR, Bala was arrested without the prior knowledge of the jurisdictional court,” Vanchinathan said.

Procedure not followed

 

He quoted Section 199 of the Code of Criminal Procedure (CrPC), which lays down the procedure for prosecution in a defamation case. It says: “Nothing shall affect the right of the person against whom the offence is alleged to have been committed, to make a complaint in respect of that offence before a Magistrate having jurisdiction or the power of such Magistrate to take cognisance of the offence….” It allows public servants to file a complaint in a Sessions Court through a public prosecutor for alleged defamatory comments. Thus the complaint filed against Bala, Vanchinathan insisted, was not bona fide.

Section 155 of the CrPC stipulates that no police officer shall investigate a non-cognisable offence without an order from a competent magistrate. Under this section, a non-cognisable offence should be recorded in the Special Register and such a report is known as “NCR” (Non-cognisable Offence Report) and is not an FIR. On receipt of an NCR, the officer-in-charge of the police station should direct the informant to report to the magistrate because the police cannot make an arrest without a warrant from the magistrate.

On November 15, the Madurai Bench of the Madras High Court stayed the investigation proceedings on the FIR for four weeks. Justice S.S. Sundar, after hearing a petition from Bala which sought to quash the FIR, also instructed the State to file a counter-statement. Vanchinathan, who argued for the petitioner, said: “The court’s attention was also drawn to the 2008 case against the eminent artist M.F. Husain in which the painter faced a bunch of criminal proceedings for some of his paintings, which were dubbed as obscene. Justice Sanjay Kishan Kaul, the then Delhi High Court judge, quashed the ‘summons and warrants’ against the artist, saying that the paintings were to be seen as just pieces of art.”

Experts in law maintain that though the police tagged Section 67 of the IT Act, 2000, along with Section 501 of the IPC against the cartoonist, it still did not warrant his arrest. “It is not clear how these two provisions are applicable to the cartoon he drew,” Justice K. Chandru, a retired judge of the Madras High Court, said in an interview.

Section 67 of the IT Act says: “Whoever publishes or transmits or causes to be published or transmitted in the electronic form, any material which is lascivious or appeals to the prurient interest or if its effect is such as to tend to deprave and corrupt persons who are likely, having regard to all relevant circumstances, to read, see or hear the matter contained or embodied in it, shall be punished on first conviction with imprisonment of either description for a term which may extend to three years and with fine which may extend to five lakh rupees.” Section 77 (B) of the same Act, however, points out that offences with three-year imprisonment are bailable (inserted vide Information Technology (Amendment) Act, 2008).

Justice Chandru recalled Abu Abraham’s cartoon in The Indian Express during the Emergency in 1975 depicting President Fakhruddin Ali Ahmed signing ordinances sitting in his bathtub, portraying him as a rubber stamp of the government. He said the decision about whether a cartoon or a publication violated constitutional limits must be made by the courts and not by the police or bureaucrats.

In the case of Semmani, 46, a police team forced its way into his house at Marankulam village in Tirunelveli in the early hours of November 4 and took him to an undisclosed location after threatening his family members with dire consequences. He was allegedly stripped, abused and beaten, and footwear was shoved into his mouth while he was being shifted from police station to police station in order to avoid his lawyer-colleagues who were searching for him frantically. He was taken to the Radhapuram police station and later shifted to Uvari, where he was illegally kept in custody until late night the next day.

Apprehending a threat to his life, Semmani’s sister approached the magistrate at Valliyur, who appointed a lawyer as the court’s Warrant Commissioner to trace and rescue him from illegal custody. “I was almost unconscious when the Warrant Commissioner came to the Uvari police station along with lawyers. After I appeared before the magistrate, I was admitted to the Palayamkottai government hospital at about 1 a.m. on November 6,” he told Frontline over phone from the trauma care department, where he was undergoing treatment.

He said that he was beaten by the police and that he suffered a fracture in his left leg and injuries all over the body. The nail of his right big toe was pulled out. “I am a wreck today,” he said. The irony is that no case was registered against him until November 13 in any police station in the district.

Semmani said that he had been providing vital case details to a team of lawyers handling cases filed by anti-nuclear activists against the State in the Supreme Court. “That could be the reason. Besides, I intervene in all rights violation cases, which also irritates the police here,” he said. The Deputy Inspector General (DIG) of Tirunelveli Range, Kapil Kumar Saratkar, placed seven police personnel, including Panangudi Inspector Stephen Jones, a sub-inspector and a special inspector besides four police personnel, under suspension for their high-handedness on November 11.

Governments in Tamil Nadu have always shown a low level of tolerance of dissent. When Jayalalithaa was the Chief Minister, many cases were foisted on activists, writers and media houses in an attempt to muzzle dissent. Her successors have continued in the same vein. From the brutal suppression of protesters on the Marina beach last year and the arrest of the anti-liquor activist and singer Kovan to the arrest of the environmentalist Mughilan and the student activist Valarmathi under the Goondas Act, the State government has stifled voices of dissent with monotonous regularity.

T. Jayaraman, convener of the Anti-Methane Project Federation and a retired professor, was arrested on October 30 under Section 153(B) of the IPC on the charge of making imputations and assertions prejudicial to national integration. Nakkeeran Pugazhendhi of the Arappor Iyakkam, who protested against the construction of a temple on a public thoroughfare at Ramavaram in Chennai, was picked up by the police in the early hours of November 2 on the basis of a complaint from a functionary of the Pattali Makkal Katchi (PMK), a political party. He was enlarged on bail after he spent a few days at the Puzhal prison.

Prof. Ramu Manivannan, Head of the Department of Social Studies and Political Science, University of Madras, says: “All this shows the frustration of the fragile political class that rules the State, with too heavy a baggage of various allegations. Tamil Nadu witnesses political leaders with no accountability, a bureaucracy with no transparency and above all a democracy without any justice.” Hence, even the feeblest voice of dissent scared the state, he said.