Kolkata: “What the two petitioners may have conceived of in humour, turned out to be horror for them; they were put behind bars for having rubbed the high and mighty the wrong way.”
This is what Calcutta high court judge Dipankar Datta wrote in a March 2015 judgment in one of the three cases involving Ambikesh Mahapatra, a chemistry professor at Jadavpur University.
More than six years have passed since, and Mahapatra’s horror has now transformed into disgust and haplessness. The police have not discharged him from the case against him for sharing a cartoon of the chief minister, even though the law under which it was filed was struck down in 2015 by the Supreme Court.
It was on 23 March 2012 that Mahapatra, 61, shared, from the official email of his housing society—an act he acknowledged as inappropriate and for which he apologised—a cartoon mocking Trinamool Congress (TMC) chairperson Mamata Banerjee, who took charge as West Bengal in May 2011 as chief minister, a position she still holds.
The cartoon was shared soon after Banerjee asked union railway minister Dinesh Trivedi—who belonged to her party that was then a part of India’s ruling coalition—to step down, as she was angry with his decision to hike railway fares. Banerjee replaced Trivedi in the United Progressive Alliance-II government with trusted lieutenant Mukul Roy.
The cartoon that Mahapatra shared had three rows of images. In the first, Banerjee shows Roy a logo of the Indian railways, with a speech bubble saying, “Dekhte pachchho Mukul, shonar kella! (can you see, Mukul, it’s the golden fort)!” In the second, Roy says, “Ota dushtu lok (That man is wicked).” In the third row, a smiling Banerjee replies, “Wicked? Vanish!”
It was inspired by Satyajit Ray’s iconic detective film, Shonar Kella (1974), and refers to a conversation between a child, Mukul, who wants to visit Shonar Kella, and an impersonator who wants to reach the fort with Mukul’s help, to search for hidden treasures. The “dushtu lok” refers to a parapsychologist who brought Mukul, with permission from his parents, to Rajasthan to take him to the fort to glean memories of his past life. The word ‘vanish’ refers to a murder attempt the impersonator made on the parapsychologist.
About three weeks later, Mahapatra was allegedly shoved around by some local supporters of the state’s ruling party, and later arrested on four charges, including sections 114 (abettor present when offence is committed), 500 (punishment for defamation) and 509 (word, gesture or act intended to insult the modesty of a woman) of the Indian Penal Code, 1860, and section 66A (b) (punishment for sending offensive messages through communication service, knowing the information to be false) of the Information Technology (IT) Act, 2000.
The next day, he was produced before a court, which granted him bail. While some strongly criticised the harassment meted out to the professor and a septuagenarian neighbour (Mahapatra emailed the cartoon from the account of the neighbour, who was then secretary of the housing society), it soon became evident that the chief minister herself had taken offense.
Speaking at a party event a month later in May 2012, Banerjee said that she had respect for cartoonists but what Mahapatra shared was not a cartoon but a “decomposed photo”, (perhaps meaning a morphed one) aimed at her “character assassination”. She alleged the word “vanish” referred to murder. In Ray’s film, ‘vanish’ was, indeed, used in the context of an attempted murder.
Though the chargesheet against Mahapatra was filed before a magistrate’s court in Alipore in 2012, the trial has yet to start. The police dropped three of four charges, but a judge has yet to decide if charges should be framed against him or if he should be discharged. This despite the fact that the chargesheet was submitted under provisions of section 66A—struck down by the Supreme Court, as we said—of the IT Act.
Meanwhile, the state human rights commission, in 2013, recommended that the state government compensate Mahapatra with Rs 50,000 for the harassment he faced and punish the policemen involved. The government refused.
Mahapatra challenged the government’s decision in the Calcutta high court in 2013. After Justice Datta ruled in his favour, in 2015, the government challenged the decision before a division bench.
The turn of events also turned the professor into a human rights activist. He became a part of the civil society platform Aakraanta Aamaraa, which champions free speech and human rights. He also contested the 2016 assembly election as a Left-backed independent candidate but lost to the TMC heavyweight Sovan Chatterjee by 24,292 votes.
In 2020, the case before the division bench in the Calcutta high cour t it was “dismissed for default”, which means the State did not provide evidence and remained absent from hearings. But Mahapatra’s legal adviser has told him the state’s counsel could suddenly appear and proffer some reason for absence; there was no guarantee that such a plea would be dismissed.
“I had lost all hope of anything happening,” said Mahapatra. “I had realised that only what the chief minister wants will happen.” Hope bubbled forth for Mahapatra when the Supreme Court in July 2021 said it was “shocking” that section 66A was still being used.
Mahapatra is uncertain when his ordeal might end.
“It has now become clear to me that the state’s ruling party is ready to go to any stretch, using the state administration, the police, money power and even a section of the judicial administration, to silence voices of criticism,” said Mahapatra. “My case demonstrates how the legal system can be used to harass dissenters.”
Excerpts from the interview with Mahapatra:
Tell us about the chain of events leading to your arrest.
On 23 March 2012, I forwarded the spoof from the official email id of the cooperative society governing our residential complex. The group email had about 60 members and they are all friends. I found the spoof funny, especially the references to the famous dialogues from Shonar Kella, and shared it with them just for fun.
About three weeks later, on 12 April, I entered the residential complex quite late in the evening, as I had a hectic schedule at the university. As soon as I entered the compound, a group of some eight to 10 persons, none of them residents of the complex, grabbed me by the collar of my shirt and dragged me to the office of the society where another 60-70 persons were waiting. There, they thrashed me for having forwarded the spoof. This went on for about half an hour and then they forced me to sign a statement, in which I had to tender an unconditional apology for intentionally insulting the chief minister, acknowledge my responsibility and resign from being an office bearer of the cooperative society.
Then they telephoned the Jadavpur East police station and instructed the police to arrest us. The police rushed in very soon and took me to the police station. Neither was I allowed to inform my family nor did the police inform them. Subrata Sengupta, a resident of the complex who was 73 at that time, was also arrested, though he had not been physically assaulted.
Do you think mailing such content from an official mail id of an organisation was appropriate on your part?
No, I do not, and I had already tendered my sincere apologies to the recipients of the mail group in two separate emails on 4 and 6 April 2012.
Who were the people who manhandled you?
They were local supporters of the state’s ruling party. I did not know anyone at that time.
Why was Sengupta arrested?
Actually, the email ID had the name of Sengupta, who was the secretary of the society, as the sender. Since he was not adept at using smartphones, I, being the assistant secretary of the society, was entrusted with operating the email. Therefore, on record, whoever received the email would have had the name of Sengupta as the sender.
What happened at the police station?
The two of us were thrown into the lock-up as they started preparing the memo of arrest. A formal complaint was lodged by a local resident, Amit Sardar, a small-time TMC leader of the locality, who was neither a recipient of the email concerned nor a resident of the complex. The complaint was lodged after we were locked up in the police station. Five persons were named in the complaint, all of them residents of our complex. However, the police did not arrest anyone other than Sengupta and me.
How did the complainant get to know of the spoof?
Someone from among the recipients must have shared it with someone outside the email group. Also, it was only the office bearers of the society who knew I operated the email.
What happened on the next day?
In the morning, they summoned my wife to the police station to sign the memo of arrest. In it, they had written that I was arrested from my home in the presence of my wife. But they did not have my wife’s signature. So, they summoned her and pressured her to sign the arrest memo.
Who else was at home at that time?
I live with my wife and two daughters, one of them was 19 years old at that time and the other was 14. They spent the night in anxiety. At the police station, my wife did what she was asked to.
What was written in the formal complaint?
It said, after naming five persons, that “these people sent obscene print out messages in the name of the honourable chief minister from the email of the society to the emails of all members of the board (society). Besides, they went to the homes of every member and assassinated the characters of the chief minister and union ministers using vulgar language”.
What happened at the court?
Sengupta and I were produced before a magistrate’s court at Alipore. The police booked us under sections 114 (abettor present when offence is committed), 500 (punishment for defamation) and 509 (word, gesture or act intended to insult the modesty of a woman) of the IPC and section 66A (b) (punishment for sending offensive messages through communication service, knowing the information to be false) of the IT Act. The police sought 14 days’ judicial custody, but the judge granted us bail.
How long did the police take to file the chargesheet?
A 96-page chargesheet was filed on 19 July 2012. In it, they dropped IPC sections 114, 500 and 509, obviously, because they could not find any evidence against us. Apart from section 66A (b) of the IT act, they added sub-section (c) (electronic mail message for the purpose of causing annoyance or inconvenience or to deceive or to mislead the addressee or recipient about the origin of such messages), to be read with read with Section 109 of the IPC (punishment of abetment if the act abetted is committed in consequence). The original complainant, Sardar, challenged the dropping of the IPC sections. The court, after hearing all sides, accepted the chargesheet under section 66A with subsections b and c on 1 June 2013 and transferred it to the 5th magistrate’s court for trial.
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What happened next?
The case simply did not move since then. Dates after dates, as it is said. In my opinion, it moved backwards.
Why would you say it moved backwards?
It is because in March 2015, the Supreme Court of India struck down 66A of the IT Act, and also ordered dismissal of all cases going on under the Act. My case had also been referred to during the arguments in the supreme court. In 2013, on the advice of former Lok Sabha Speaker Somnath Chatterjee, I too joined the case as a petitioner.
Subsequent to the supreme court judgement, we approached the court in Alipore, seeking the dismissal of the case against me because it was solely on the basis of 66A. But in the meantime, the original complainant, Sardar, filed a petition before 5th magistrate’s court, seeking to add sections 500 and 509 of the IPC to the chargesheet.
The judge needed the case diary to make a decision on this but it could not be found for some time. In 2014, the Calcutta high court had requisitioned the case diary in connection with a case I filed against the state government and the high court judge had in March 2015 ordered returning it to the Alipore court. But as of November 2015, the case diary could not be found in the Alipore court.
Simultaneously, Sardar moved another petition seeking to transfer the case to any other court except the 5th magistrate’s court. They even argued that since the judge was not a native Bengali speaker, he would not understand the nuances of the dialogues from Ray’s film that were used in the spoof. The 5th magistrate’s court had come to the conclusion that I should be discharged from section 66A but was yet to decide on Sardar’s petition for adding the IPC sections, when the session judge, on 18 April 2016, ordered the transfer of the case to the court of the chief judicial magistrate. Since then, for about five years, nothing happened in the court of the chief judicial magistrate. Meanwhile, Sengupta, my co-accused, died in 2019.
Tell us about the case you filed against the state government.
The state human rights commission (SHRC) took suo motu cognisance of the harassment Sengupta and I faced on 16 April 2012. After the enquiry, on 13 August, the SHRC came to the conclusion that our arrest made out ‘a case of police excess and highhandedness’, recommended the government to compensate both of us with Rs 50,000 each and initiate departmental investigation against the police officers involved in the arrest.
In May 2013, the state government declined the SHRC’s recommendations. Subsequently, we petitioned the high court in November against the government’s stance. On 10 March 2015, the single bench of justice Dipankar Dutta upheld the SHRC’s order, and instructed the government to implement it within one month, apart from paying Rs 50,000 as costs of the proceedings But the government petitioned a division bench challenging this verdict. Hearing of that case is yet to complete. The division bench has also changed. In March last year, the division bench dismissed the case after the state government did not attend the hearing on two successive dates. But it has been “dismissed for default”, language that legal experts told me meant it can be revived if the government approaches the court again. Of the two judges on that bench, one has died and the other transferred outside the state.
What happened after the Supreme Court recently in July 2021 expressed its shock over cases under section 66A still pending?
I had lost all hopes of anything ever happening. I had realised that only what the chief minister wants will happen. Then, suddenly, in July the Supreme Court expressed its anguish over cases under this section still pending in different states and instructed the union government to see that the court’s March 2015 order was implemented. Following this, the ministry of home affairs instructed all states to implement the apex court order.
My case suddenly came up for hearing. The chief judicial magistrate, on 14 September, discharged me from the charges under 66A. But since the court is yet to decide if Sardar’s petition to add sections 500 and 509 IPC against me should be allowed, the legal process remains. The court had fixed 17 November as the next date for hearing, but it has again been postponed. Now, not only was the judge unwell and he went on indefinite leave, but subsequently his transfer has also been ordered.
How long do you expect the case to take?
It has now become clear to me that the state’s ruling party is ready to go to any stretch, using the state administration, the police, money power and even a section of the judicial administration, to silence voices of criticism. I had to spend lakhs on legal procedures. I had to get a no-objection certificate from the court for the renewal of my passport. Given the pace at which things have progressed, including the unforeseen twists and turns, I have no estimate or idea about when and how the case will finally end. If anything, my case demonstrates how the legal system can be used to harass dissenters.
(Snigdhendu Bhattacharya is an independent journalist based in Kolkata.)