Siddhartha Varadarajan asks in the Wire
Is it a crime to criticise Prime Minister Narendra Modi or Uttar Pradesh chief minister Adityanath?
No. It's what Siddhartha gets paid to do. The sad thing is the more he gets paid and the more he criticizes Modi and Yogi, the better they do.
Article 19 of the Constitution of India guarantees freedom of expression, subject only to a narrow range of ‘reasonable restrictions’ which do not remotely apply to criticism or satire.
But they do apply to incitement to violence.
Yet, two arrests over the past week from UP make it clear that this freedom no longer exists.
In which case Varadarajan would have returned to America- the country of which he is a citizen- so as to escape arrest.
Or rather, as Idi Amin Dada infamously once said, “There is freedom of speech, but we cannot guarantee freedom after speech.”
Fortunately Modi & Yogi are vegetarians. They won't eat Siddhartha after killing him.
The police in Colonelganj last week arrested five men for the crime of putting up a hoarding that showed Modi offering a cooking gas cylinder for Rs 1,105, the highest it has been. The poster included the hashtag #ByeByeModi in large letters as well as other text attacking the government’s Agnipath recruitment scheme.
There's been plenty of violence over Agnipath. Colnoelganj has also seen communal rioting recently. The local authorities have acted prudently.
Local BJP leaders who saw the poster immediately complained to the police and a case was registered under Sections 153B (imputations, assertions prejudicial to national integration) and 505(2) (statements creating or promoting enmity, hatred or ill-will between classes) of the Indian Penal Code.
Which is why there has been no rioting.
The first IPC section is meant to criminalise the targeting of a group on the basis of their religion, language, caste etc and cannot be stretched to cover criticism of an individual, even if he is the prime minister.
But Siddhartha and his ilk have been accusing Modi & Yogi of being against a particular community. The hoarding is an incitement to violence given the context- viz. arson and rioting over Agnipath.
The second section presupposes two or more “classes” between whom enmity is being promoted.
Hindus and Muslims, in this case. Hindus vote for Modi & Yogi. Muslims don't.
No law degree or training is required to understand why these sections cannot possibly apply to the “crime” at hand.
That is for a court to decide. There is a prima facie case of incitement because riots over Agnipath have occurred very recently in some parts of the country while Colonelganj itself has seen recent arrests in connection with communal violence. Maybe the accused have a defense in law. Maybe not.
As if the police case were not bad enough, major media platforms helped sustain the ridiculous claim that an actual offence had been committed. “In a major breakthrough,” the Times of India reported breathlessly, “a team of Colonelganj police on Monday evening arrested five persons, including owner of a printing press, and an event organiser on the charges of installing controversial hoarding with the title #ByeByeModi near Reserve police lines on Beli road on Saturday.”
Is there a wider conspiracy to incite violence in the area? If so, who will benefit from that violence? The Muslims? No. They are a minority. They suffer disproportionately even if some hotheads or professional criminals on their side start the trouble. Meanwhile, Yogi benefits from 'Hindu consolidation'. But the BJP already has this particular Assembly seat. They will be rewarded for preventing blood-letting and putting gangsters behind bars.
The second case from UP this week is equally ridiculous. An 18-year-old schoolboy in Kannauj,
a 20 year old, Class XII dropout
Ashish Yadav was arrested by the police for posting an “offensive” image of Adityanath on social media. The image showed Adityanath with a milk bottle in his mouth and a shoe on his head. On the side were a series of laughing emojis.
On the left is Shankar’s famous cartoon from 1953 showing Nehru naked; on the right, Ashish Yadav’s caricature of Adityanath. Source: theheritagelab.in; Facebook
It is instructive to compare Yadav’s “offensive” image of Adityanath with Shankar’s celebrated 1953 cartoon of a naked Jawaharlal Nehru unsuccessfully imploring the United Nations.
Nehru liked it. He went to Harrow and had spent a lot of time in jail. You have to admit he has a sexy butt.
If you are a humourless, intolerant politician or policemen, you would find the Nehru depiction far more “offensive” than the schoolboy’s somewhat amateurish exertions.
The police are obliged to respond to complaints. There are procedures to be followed. Come to think of it, proper journalists are supposed to do fact checking. But the Wire does not represent proper journalism.
Far from filing a case against him, however, the then Prime Minister – who had famously said ‘Don’t spare me, Shankar’ – bore no grudge.
Coz, as Wolpert said, he was totes Gay when he wasn't boning the horse-faced Edwina or the zonked out Padmaja.
In fact, he even “took [the cartoonist] with him on his visit to the USSR in 1955, marking his elevated stature in Nehru’s India,” Ritu Gairola Khanduri chronicles in her book, Caricaturing Culture in India,
Did he pose for more naked cartoons? Stalin had banned buggery so maybe not.
But to come back to Yadav, his offence being even more heinous than the one in Colonelganj, the police in Kannauj booked him under additional IPC sections – apart from 153B and 505 (2), they also added 153A, 295A and section 66 of the Information Technology Act. Again, none of these sections apply even remotely.
That is a decision for a Court to make. The C.M of U.P is the head of a religious sect. The application of shoe leather to such a figure is considered a serious defilement and provocation in the Hindu religion.
Prima facie, all the ingredients of Section 295-A apply.
1) The accused must insult or attempt to insult the religion or religious beliefs of any class of citizens of India.
The Yogi is the head of a religious sect. He was insulted by showing his face under shoe-leather. There is a defense in law that the insult was meant for the politician not the holy man. But the image shows the Yogi in his ceremonial attire. Leather shoes defile sacred spaces or personages.
2) The said insult must be with a deliberate and malicious intention of outraging the religious feelings of the said class of citizens.
There is a defense in law that the accused had no such intention. Hopefully that is what he said to the senior people who came to interview him.
3) The said insult must be by words, either spoken or written, by signs or by visible representation or otherwise.
This is clearly the case. Siddhartha may pretend he is a naive American who does not know about Hindu Holy men and the prohibition on shoe leather in sacred spaces. But he has been living in India for many many years. He is a journalist. He is only making himself look stupid or disingenuous.
4) The offence under Section 295-A is cognizable and a non-bailable and non-compoundable offence. 5) The police have a power under to arrest a person charged under Section 295-A without a warrant.
Why is Siddhartha pretending that the police didn't have a duty to arrest the young man? A cognizable offence is one where the police have to take action even without any complaint.
Yet, in a further sign of how seriously the poor boy’s ‘crime’ was being treated by the authorities, PTI quoted officials as saying “District Magistrate Rakesh Kumar Mishra and Superintendent of Police Rajesh Kumar Srivastava reached the Talgram police station and quizzed the student in a closed room.”
That was kind of them. Hopefully, he made a clean breast of things. He was just trying to raise a laugh. His didn't mean to break the law. He had no malicious or other motive.
There are plenty of other examples of such brilliant “breakthroughs” and high-level interrogations, from Uttar Pradesh and elsewhere, which testify to the death of freedom of expression.
By beheading?
And the rot runs deeper than the thin skins of politicians or the even thinner respect for the constitution that the police have.
The Indian First Amendment goes in the reverse direction to the American First Amendment. Siddhartha's may be confused about which country he lives in.
Each of these arrests invariably receives the backing of the magistrates before whom the hapless ‘offenders’ are produced. Denial of bail in the first instance is more or less the norm, even in New Delhi, as Mohammed Zubair found out when first the duty magistrate and then the chief metropolitan magistrate insisted he be sent to custody for an innocuous tweet. By the time the sessions judge granted bail, the government had managed to rustle up half a dozen equally fraudulent cases and tasked a Special Investigation Team with prolonging his incarceration for as long as possible.
What is the upshot? Less communal violence. This breaks Siddhartha's heart.
No matter how low down the judicial food chain she or he may be, a judge is the citizen’s first line of defence against the abuse of executive power.
There is no abuse of power here. The law has been correctly applied. Blame the Legislature or the basic structure of the Constitution by all means. If an offence cognizable and non-bailable the hands of police officers and magistrates are tied.
Take that away and what you have left is punishment by process.
As intended by the Legislature. Nehru brought in the First Amendment. He may have liked cartoons of his naked bum but he was against freedom of expression on the American pattern.
The abdication of judicial responsibility when fundamental rights are violated is the reason Indian democracy is withering on the vine.
The Left withered on the vine. Congress withered on the vine. Siddhartha's brain withered on the vine. Why? Because they did stupid shit. Democracy is about the majority getting to do stuff which is good for them. The role of the judiciary, as David Hume said, is to promote utility not pander to shitheads. Justice is a service industry. So is journalism. But foreigners can pay for anti-national Indian journalists. Indian judges, however, are paid by Indian people. They can't afford to be anti-national.
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