New Delhi: The arrest and subsequent incarceration of strategic analyst and journalist Abhijit Iyer Mitra has thrown up myriads of questions on whether the freedom of expression tantamounts to hurting someone’s religious sentiments and whether certain utterances, acquiesced by him as ‘stupid’ were simply meant for self-amusement and to enthral users of social media.
Article 19(1)a of the Constitution envisages that all citizens have the right to freedom of speech and expression by words of mouth, writing, printing, pictures and other modes. However, this freedom can be circumscribed by legislature so as not to injure a person’s reputation, public order, decency and morality, security of State, contempt of Court, friendly relations with other nations, defamation, incitement to offence and integrity and sovereignty of India {Article 19 (2)}.
Abhijit might not have conceived that the ‘joke’ about his visit to the Sun temple in Konark would soon metamorphose to a crime. This while he was hobnobbing with former Biju Janata Dal (BJD) MP Baijayant Panda, a bete noire of Odisha Chief Minister Naveen Patnaik.
Abhijit was arrested, taken on remand in police custody for interrogation and later jailed for making derogatory remarks on the temple and his old remarks about members of the Odisha Assembly which were construed as breach of privilege.
Two FIRs were lodged against him. Grapevine has that Abhijit has fallen a prey to politics of vendetta to target Baijayant Panda. He was lodged in the special jail at Bhubaneswar after the court rejected his bail plea and was sent to judicial custody for 14 days.
As this message was spread on Twitter by posting a video, the police have sought details of his Twitter account. To add to the woes of Abhijit, the lawyers in Odisha were on strike following alleged assault on an advocate at Cuttack. The Assembly constituted a House Committee under the chairmanship of leader of opposition Narasingha Mishra to investigate the matter. The committee has accepted the apology of Abhijit since he appeared before it and confessed to his “stupid” outbursts. Some are of the opinion that the police reaction has been disproportionate to the “stupid” action of Abhijit.
The row over Bengali- Odia relations can be traced back to Calcutta Presidency days, when large chunk of coastal Odisha was under the Presidency. It was only on April 1, 1936 that a separate Orissa, rechristened as Odisha, was carved out.
Coming to the charges slapped against Abhijit, these include Section 294 of the IPC for any obscene act or utterance in public place, which carries punishment that extends to three months imprisonment, or fine or both. Section 295A relates to deliberate and malicious acts, intended to outrage religions feelings of any class by insulting its religion or religious beliefs. It attracts similar punishment as in Section 294 of IPC .
The offences under both sections are cognizable, where police can arrest without warrant, with the exception that Section 294 is bailable, whereas section 295A is not. A more stringent section 153A IPC has been added which pertains to promoting enmity on the basis of religion race or language which carries the punishment which may extend to three years, or with fine or both. This section usually is used during communal riots and sanction of the government for prosecution is mandatory. This offence is non-bailable and non-compoundable and is applied against the accused when there is wanton vilification or attack on the basis of religion, race, language etc of any particular group.
Yet, another section was added Section 500 for defaming someone, which carries punishment of imprisonment up to three years, or fine, or both. One more section of law is 506 IPC which is used for criminal intimidation with punishment of two years imprisonment. It is non-cognisable, but in Odisha it is reckoned as cognisable and non-bailable . In several non-cognizable offences, where police cannot arrest, this section is added by unscrupulous police men to make it cognizable to draw FIR for obvious reasons.
In all these alleged offences, the higher courts have held that mensrea or intention to commit the offences is the vital determinant. In the imputation of Abhijit, it is to be seen whether the act was deliberate and intentional or was an off the cuff remark made in jest. However, since the utterances were on Twitter to Section 67 of the Information Technology Act, 2000 was also added.
Under Section 67 punishment is imprisonment that may extend to three years with a fine up to Rs 5 lakh. Whereas the House Committee has a separate channel to enquire into breach of privilege, the courts are guided by wordings of law, evidence and various judgments of higher courts to determine the veracity of charges.
(Shyam Narayan Tewari is a former director general of Odisha police. Views are personal)
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