How to lose the high ground
Mayawati over-reached by criminalising Joshis disgusting speech....
The Uttar Pradesh Congress Committee President,Rita Bahuguna-Joshi,was recently arrested for her comments directed against UP Chief Minister Mayawati. The FIR lodged in Majhola police station indicates that Joshi has been charged under various provisions of criminal law. Yet,while Joshi’s comments are disgusting,they are not criminal. And by making them so,and taking them out of the realm of politics where they should have been dealt with,the legitimacy of the criminal process is undercut.
At a public gathering in Moradabad,Joshi criticised the CM’s payment of Rs 25,000 compensation to Dalit women who had been raped,and that it cost around Rs 5 lakh to deliver the compensation by official helicopter. She added: “I say one should throw this money in Maya’s face and tell her — if you get raped,I’ll give you one crore.” Joshi,who was recently granted interim bail,says she wanted to convey the plight of the Dalit women who were raped,and that she made the remarks so that the state’s woman CM would appreciate her concern.
Her choice of words was misogynistic,disgusting and crude. Further,as a professor of history at Allahabad University,she should have been aware of the historically privileged position she occupies in terms of caste. Finally,this is not the calibre or form of critique that one expects from the leader of a large well-established political party. And for her lack of civility,her lack of propriety,and her lack of judgment,Joshi must pay a political price,and be unequivocally censured by her political leadership. But,did her words qualify as criminal in nature?
Section 153 A of the Indian Penal Code (IPC),one of the charges she faces,criminalises any word or deed that promotes or attempts to promote enmity between different groups on the grounds of caste. This offence is punishable with up to three years imprisonment. The government has to take cognisance of a court to process such an offence; in this case,it seems reasonable to assume that the state government sanctioned such cognisance.
Yet Joshi did not make her offensive statements because of the CM’s caste,so an invocation of this section to target crude speech by a political opponent seems an improper use of the provision. The Supreme Court in 1999 was categorical that the intention to cause disorder or to incite people to violence is the sine qua non of the offence under this provision and that the prosecution has to prove the existence of such mens rea on the part of the accused. Clearly,Rita Bahuguna-Joshi has no such intention: at worst her intention was to score a few political points.
Much more fantastic is the charge under the Victorian-sounding Section 509 IPC which punishes any word that is intended to “insult the modesty of any woman”,with imprisonment which may extend to a year. (Perhaps,the most famous case prosecuted under this section was when K.P.S. Gill slapped a senior officer,Rupan Deol Bajaj,on her posterior at a gathering.) The intention to outrage the woman’s modesty is mandatorily required: so eve-teasing,the making of obscene gestures,the writing of vulgar letters and molestation are some of the actions that invoke this section,usually against a man. The charge requires indecency,or actions that contemplate a sexual relationship of an indecent manner.
Finally,Joshi was also charged under the Scheduled Caste,Scheduled Tribe (Prevention of Atrocities) Act,1989. The only possibly relevant provision under this statute is an atrocity whereby a person intentionally insults a member of the Scheduled Castes or Scheduled Tribes “in any place within public view”. The statute demands that the accused intentionally cause insult,locating the offensive words in the context of the person’s caste. Joshi,a political opponent,was crudely critiquing the CM over an arguably controversial policy. She did not,it appears,intend to degrade a member of a Scheduled Caste or Scheduled Tribe.
The CM could have emerged as a leader from this situation — by condemning the opposition politician’s misogyny. She could have used this situation to highlight what arguably might be a well-intentioned policy that is not meant to cover up a damning problem of violence against women,but only seeks to provide some minimal redress in the form of money. She could have used the situation to highlight the pandemic of violence against women. Instead,by her party members allegedly burning down Joshi’s house,and by her government sanctioning prosecution under severe provisions of criminal law,she lost the moral high ground that she rightly should have enjoyed. By blatantly politicising the application of criminal law,Mayawati has disregarded her years of legal training.
The writer practises law at the Supreme Court of India
express@expressindia.com
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