The allegation was that Professor Ambikesh Mahapatra has used email id of his neighbour Subrata Sengupta (70) to forward an e-mail containing a graphic with a humorous reference to Mamata Banerjee for replacing Dinesh Trivedi with Mukul Roy as Railway Minister. The graphic uses photographs of the three Trinamool Congress leaders and a clever play of words with dialogues from Satyajit Ray's detective masterpiece on celluloid “Sonar Kella.”
This content of the cartoon is her own creation, the way she has forced Dinesh Trivedi out of railway minister position and replaced with Mukul Roy. This political hypocrisy of Mamata Banerjee to pose herself to be opposing the increase in the railway tariff, without really reducing the rates, by making Dinesh Trivedi a scapegoat is a certainly a subject matter of criticism, ridicule, satire and sarcasm. When prima facie the content does not reflect any ‘defamatory’ or any offensive character, it cannot be criminalized and they cannot be penalized.
The Chief Minister of West Bengal has committed a political blunder. With this Mamata Banerjee became a most sought after ‘subject’ for cartoons and satiric comments all over virtual space filled with social media and blog world. Hundreds made fun of her on Twitter using the hashtag #arrest me now and thousands laughed at it. Why did Mamata Banerjee cross the road? To see if the chicken was making fun of her," @harqblack tweeted. Another wrote back: "Mamata declares 'The Dark Knight' tax-free. Because the Joker dies." And one that had many cracking up was: "Dear Mamata, normally the cartoonist tries to capture the subject. Not vice versa." At least four 'We Hate Mamata Banerjee' pages had popped up. While one said: 'Mamata Banarjee ke hatao, ma-mati-manush ke bachao (Remove Mamata, save mother, land, people). It didn't surprise anyone that a petition to the President and Parliament to protect freedom of expression in West Bengal quickly gathered online signatures. Drawing a cartoon on her intolerance and penning satires about her dictatorial attitude is the current rage on the internet. Can she stifle all those voices and imprison those netizens? She cannot physically and legally or virtually stop the criticism. Rulers like her should realize that the information technology has expanded the scope and hope of free expression.
It is blatant misuse of law – of defamation (ss 499,500) under Indian Penal Code and Information Technology Act by the Chief Minister. It is misuse of police and their investigating authority against an innocent expression of political humour. This episode supplied yet another strong reason for demanding decriminalization of defamation. The state cannot equate a professor critical of a public conduct of a public person, with criminal like a thug or killer and arrest him with a demand for police custody. He is not a criminal. Neither IPC nor IT Act could be invoked against him.
It is pathetic that these two persons were physically assaulted by men from the Trinamool Congress. The assaulting persons were arrested under Sections 323 (voluntarily causing hurt), 341 (wrongful restraint), 114 (abettor present at the time of offence) and 506 (criminal intimidation). These are bailable offences. Ambikesh was charged under Section 500 IPC, relating to defamation, which is a non-cognisable and bailable offence. But the police detained them without giving bail. They have slapped section 66(A) (b) of Information Technological Act which says forwarding offensive message is a serious crime and results in 3 year imprisonment. The draconian character of this section is revealed with this arrest. Even if ‘inconvenience’ is caused by forwarding an ‘offensive’ message becomes a crime punishable with three years. It says: the offence is sending “…any information which he knows to be false, but for the purpose of causing annoyance, inconvenience, danger, obstruction, insult, injury, criminal intimidation, enmity, hatred, ill will, persistently by making use of such computer resource or a communication device.” This provision does not include ‘defamatory’ information, criminalized almost all communications by email. In this case charging Ambikesh and Sengupta under section 500 and section 66A is a total contradiction. But police might say but cannot prove that email sent will cause insult, inconvenience, annoyance, enmity, hatred, ill will etc. If this provision is pressed, any email could be offensive and criminal. Section 66A is thus unconstitutional for being violative of Article 19(1)(a). This provision hampers the circulation of information which is facilitated by information technology.
The media should not have fixed a prefix such as ‘defamatory emails’ while reporting arrest of Chemistry Professor in Kolkata. Assuming that it is defamatory, the criminal intention has to be established to punish the Professor even under the existing criminal law of defamation under Section 499. In the absence of intention, the defamation could be at the most a civil wrong, and based on proof of damage, compensation could be awarded. It is totally unjustified to imprison Ambikesh for forwarding a cartoon and it is more grave crime to have arrested Subrata Sengupta, a 70 year old man for lending his e email id.
If the same cartoon appeared either in traditional broadsheet newspaper or as part of puppet show of great Indian Tamasha, the Chief Minister should have not dared to imprison the cartoonists or its publishers. Because it is a hapless individual without an organizational support, the regime exhibited its ruthless oppressive attitude. This is a blow to citizen’s freedom of expression. Mamata Banerjee’s regime has shown its anti-free expression character and serious intolerance to criticism by a citizen. Imprisoning for forwarding a cartoon consisting of fair comment is an atrocity on free speech and an affront to democracy. Considering cartoon as crime smacks of British imperialistic hegemony and colonial legislative violation of rule of law.
If defamation is an exception to freedom of expression, fair comment is an exception to defamation. Fair comment should never lead to imprisonment of a citizen in any democracy. It is originally a citizen’s freedom and not media’s exclusive domain and hence the media should fight against this assault which is grave threat to freedom of expression.