A draconian law, Section 152 of the BNS, and a professor

I concede that liberal humanists like me cannot expect the Supreme Court to meet all our expectations. Judges have case law to contend with, for instance. But the SC Division Bench’s order in Prof Ali Khan Mahmudabad’s case puzzled and disappointed me. And I am not the only citizen whom the honorable court has stunned.

Reading the professor’s post, which I sourced from an acquaintance (since I am not on Facebook), I could find not a single word to make me wonder if the scholar had intended to endanger the unity, sovereignty and integrity of our nation-state. Section 152 of the Bharatiya Nyaya Sanhita (BNS), under which he was arrested, penalises secession, armed rebellion and subversive activities. The professor has certainly not displayed any such intention in his post.

If the court had read any such intent into his post, it would not have released him on bail. But surprisingly, it passed on the task of decoding the post to an SIT (special investigation team) consisting of three IPS officers, including a woman (because two women defence officers were mentioned in his post). Incidentally, courts are frequently ordering the setting up of SITs nowadays.

I am proud to learn that IPS officers are deemed more competent to interpret English words than members of the higher judiciary. I doubt if the judges’ opinion on the comparative abilities to fathom the nuances of English will be shared by the majority of Indian citizens.

What could have offended the Chairperson of the Haryana State Commission for Women, Renu Bhatia? In his post, the professor was positive on every aspect of the official response to the terror attack on innocent Hindu tourists in Pahalgam. While commending the government for choosing a Muslim woman officer to brief the media, the professor had stated that right-wing forces should commit themselves to real secularism by condemning lynchings and bulldozing of houses mostly of Muslims who are suspected of involvement in crimes.

There was nothing wrong in that argument. Many Indians (including this writer) have deplored such acts of vandalism, which are patently unlawful. Even the Supreme Court has come down heavily on the use of bulldozers by local authorities without following the due process. In a country governed by the “rule of law”, such vigilante shortcuts are far from kosher.

Well-meaning critics of the executive’s excesses, like I felt I was and still am, will have to revise our approach to criticism of the government when its actions or lack of action, as the case may be, violates the principle of the “rule of law”. As a corollary to this stand, I need to deplore the lack of spine displayed by the police, first, and the subordinate judiciary, next, in rushing to arrest the professor and remanding him in police custody for crimes that many believe he did not commit!

I will digress here to bemoan the introduction of Section 152 of the BNS. Section 124(A) of the erstwhile Indian Penal Code (IPC) pertained to sedition. Many of our great freedom fighters had been arraigned in courts under that provision of the colonial law. But the Modi-Shah government “reintroduced” it without using the dreaded word ‘sedition’ or its Hindi equivalent.

The provisions of Section 152 of the BNS are more severe than those of Section 124(A) of the IPC. The definition of “subversive activities” lends itself to varied interpretations. Ordinary citizens like Prof Mahmudabad find themselves more vulnerable now.

Leaving a beleaguered minority voiceless is a sure recipe for disaster. It is not too late to take corrective action. Start with an education programme that compels women, and Muslim women in particular, to avail of secular education that dwells on three Rs — wRiting, Reading and aRithmetic. That alone will put them on the road to equality with menfolk. Cases like the one involving Shah Bano will then not come up.

Reverting to the judgments emanating from the Supreme Court, I have to state that I had great hope when Justice BR Gavai took oath as the Chief Justice of India (CJI). His recent order staying the Enforcement Directorate’s (ED) investigation in the TASMAC (Tamil Nadu State Marketing Corporation) case was welcome. There was a feeling that the ED was being used or even misused by the government to needle Opposition-ruled governments. The agency will need to restrain its enthusiasm after this order.

However, I was taken aback when the CJI recently visited Mumbai. At a reception accorded to him by the Bombay Bar Association, he gently chided the Chief Secretary, the DGP and the city’s Police Commissioner for “not following the protocol” by not receiving him at the airport on his arrival from Delhi.

I checked the rules and found that they did not require these three busy officers to be present at the airport on the CJI’s arrival. Initially, I was a bit worried since I had occupied the Commissioner of Police’s chair from February 1982 to May 1985. I had never been asked by the Protocol Department to present myself at the airport. Chief Justices SP Bharucha, SH Kapadia, SA Bobde and DY Chandrachud were from the Bombay Bar. They must have visited Mumbai during their tenures. The Secretary, Law and Judiciary, and the Chief Justice of the Bombay High Court had surely received them and seen them off, as required by the rules.

After CJI Gavai’s lament, the Maharashtra Government has issued an administrative fiat that whenever the CJI visits Mumbai, he or she will be treated as a state guest. I do not know if that entails the presence of the Chief Secretary, the DGP and the Commissioner of Police at the time of the CJI’s arrival and departure.