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 observedin 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.
©/IPR: Santosh Chaubey - http://severallyalone.blogspot.com/
