Lucknow/Chennai: Indians are dying because teli (a caste of oil-pressers) Narendra Modi is prime minister; 400 million will die in the third Covid-19 wave; this time no one will be able to complain because Modi will say no one died in hospital. “Be ready for the third wave. Vaccinated or unvaccinated will not matter. Death is certain…”
It was one of those YouTube rants that proliferated online and which Manmohan Mishra, 62, often made and posted. But the latest video that Mishra—a migrant from Uttar Pradesh (UP) to Chennai, where he ran an agency for PAN cards and other identity proof documents—posted on 7 August 2021 resulted in a suo moto case filed the next day by the police from Jaunpur in eastern UP.
Two days later, the Jaunpur police made a 1,860-km journey south and arrested Mishra, who was brought back on 16 August, remanded to judicial custody for 14 days by a Jaunpur magistrate for the purpose of further investigation but then granted bail on 18 August by the chief judicial magistrate.
Accused under five sections of four laws—including those related to incitement, “public mischief”, computer-related offences, “false warnings”, “disobeying orders issued by the state” and “making statements likely to cause fear”—Mishra’s is one of three recent cases in UP where, with elections due in five months, people have been arrested for criticising either UP chief minister Yogi Adityanath or Prime Minister Modi.
On 27 August the Lucknow police arrested a former Indian Police Service (IPS) officer, Amitabh Thakur, on charges of abetment to suicide. Three days before his arrest, a rape survivor who had set herself on fire outside the Supreme Court on 16 August died in a Delhi hospital, after having accused Thakur of harassing her to withdraw or dilute her complaint of rape made in 2018 against a Bahujan Samaj Party member of parliament. Thakur had announced recently that he would contest elections against the chief minister. Thakur has now been in judicial remand for 14 days.
The latest case filed was on 6 September, when a former state governor, Aziz Qureshi, was accused of sedition and three other offences for calling Adityanath’s government, in the complainant’s words, “a blood-sucking demon”. The complainant is BJP leader Akash Kumar Saxena, a local leader in Rampur city of western Uttar Pradesh.
In his complaint, Saxena said Qureshi made the comments about Adityanath and the UP government after he visited ailing Samajwadi Party leader Azam Khan’s home in Rampur where he met Khan’s wife Tanzeen Fatma. The former state governor, who had not criticised the current government before this, appeared to be commenting on the 81 criminal cases registered against Khan since the BJP government took charge in March 2017. Chargesheets have been filed in 79 of these cases.
Over the last 18 months, Adityanath’s police have filed 6 first information reports (FIRs) against former Indian Administrative Services (IAS) officer Surya Pratap Singh, who has frequently criticised the state’s ruling Bharatiya Janata Party (BJP).
In February 2021, Article 14 data revealed how 96% of sedition cases filed against 405 Indians for criticising politicians and governments since 2010 were registered after 2014, with 149 accused of making “critical” and/or “derogatory” remarks against Modi, 144 against Adityanath.
“It is now clear (from these data) that the law is not being misused, but is being abused,” Justice (retired) Madan Lokur, a former judge of the Supreme Court, who then served on Article 14’s Advisory Board had said. “It’s a great tragedy, more particularly so because from the brief description of cases, it would appear that many of them would run foul of the law laid down by the Supreme Court in the Kedar Nath Singh and Balwant Singh decisions.”
Kedar Nath Singh vs State of Bihar & Balwant Singh & Bhupinder Singh vs State of Punjab, the decisions Justice Lokur referred to, made it plain that the sedition law could only be used when there was incitement to violence, or if there was intention to create disorder.
The latest cases, said legal experts and former police officers, appeared to directly be a UP government reaction to criticism. Though the cases are not obviously an illegal use of the law, these laws were being misused, they said, in offences that either did not exist or should strictly be bailable and non-cognisable, which means the police can make no arrests without a warrant.
Similar arrests for criticising chief ministers have, sometimes, been made in other states over the years, misusing laws similar to those used in UP, but they do not appear to be as many.
One notable 2012 case included a professor arrested for forwarding over email a cartoon of West Bengal chief minister Mamata Bannerjee. Others included the arrest of 17 in Delhi for posters criticising Modi in Delhi in May 2021; 26 arrested in June 2019 for social media criticism of Kerala chief minister Pinarayi Vijayan, who supported the entry of women to the Hindu shrine of Sabarimala; and a man in Mumbai arrested three times for comparing Maharashtra chief minister Uddhav Thackeray to a “modern day Aurangzeb” in November 2020.
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A Video Rant That Ended In An Arrest
Mishra, the Chennai resident arrested in August by Jaunpur police, has been posting videos on YouTube for more than two years. His videos, many of them critical of Modi and his policies, were posted on the YouTube channel of Loktantra TV and his own personal channel named A Coward Indian. Loktantra TV did not respond to queries from Article 14 about Mishra’s videos, but they are no longer available to view on the channel.
Jaunpur police inspector Sanjeev Kumar Mishra, the complainant in the case, told Article 14 that the senior citizen had been trying to incite people through his videos.
“...when we looked into the matter we got to know that there was fear and panic in the society due to the fake claims made by Mishra through his videos,” the inspector said. He said the videos went viral in Jaunpur because Mishra originally belongs to the town. An FIR against him was registered on 8 August.
Police took suo moto cognizance of the video and registered a case against Mishra on the same day.
Mishra was charged under section 505 of the Indian Penal Code (IPC), 1860 (making a statement conducing to public mischief) and 505(1) (making, publishing or circulating any statement, rumour or report with intent to incite any class or community of persons to commit any offence against any other class or community). In addition, police also applied section 66 of the Information Technology Act 2008 (pertaining to fraudulent misuse, hacking of a computer or computer system, disrupting / damaging a computer system, etc), section 3 of the Epidemic Act, 1897 (disobeying regulations made under the law) and section 54 of the Disaster Management Act (false warning regarding a disaster or its severity) .
Questioning his arrest, Delhi-based lawyer Abhinav Sekhri said the arrest was “shocking”. Speaking to Article 14, he said, “... strictly speaking, the arrest is not flouting clearly spelt out laws or binding verdicts of the Supreme Court.” But while it is arguable that no cognisable or non-bailable offence was made out, he said, “it is enough for the police to get these powers simply by adding the provisions in the FIR — as is done in the present case by adding 66 of the IT Act and 505 IPC — and the accused can't question this labelling while being arrested.”
Section 505 is the only non-bailable offence in the FIR, with a maximum sentence of 3 years. The sections of the Epidemic Act, IT Act section and Disaster Management Act applied in the case are bailable offences. Section 66 of the IT Act is a cognisable offence and gives police power to arrest without a warrant.
Justice K Chandru, retired judge of Madras High Court, said section 505 is applied against statements that incite public mischief, or incite one community to commit violence against another. “Now community hatred is a handy weapon. It is a problem as the BJP is using it against minorities, whereas for the hatred from the other side, no such cases are filed,” he told Article 14.
Mishra’s family said he suffers from high blood pressure and a cardiac disease. He was very disturbed after some friends and relatives in UP died of Covid-19, leading to him recording and posting the videos, they said.
Making An Arrest To Send A Chilling Message
Under section 41 of the amended Code of Criminal Procedure (CrPC) and Supreme Court rulings, there is no need to arrest a person in every case, said Chennai-based human rights lawyer Dr V Suresh.
“The Supreme Court has time and again said, and the laws also say, 'the power to arrest is one thing, the need to arrest is a separate thing'. The law may give the police officer the authority to arrest. But whether a person needs to be arrested using that power is a different matter,” Suresh told Article 14.
In most cases, he said, an arrest is needed if the accused is a “flight risk” and will therefore not be available for a trial or may influence witnesses or destroy evidence. None of those circumstances exists in this case.
According to Suresh, who is national general secretary of the People’s Union for Civil Liberties (PUCL). In this case even if there was an offence meriting prosecution, the courts in UP or the police could have sent him an intimation asking him to present himself for enquiries. The arrest of Mishra, he said, shows the “blatant and atrocious abuse of the law”.
Ten policemen arrived on 13 August at Madhavaram, on the outskirts of Chennai, from where they were accompanied by some men from the Madhavaram police to make the arrest. Mishra was then produced in front of a magistrate and a transit remand order was issued, according to Madhavaram Assistant Commissioner of Police Arul Santhosha Muthu.
“This whole arrest is for the optics and basically meant to intimidate people and say that the Yogi government will reach anywhere in India,” said Suresh. He said the random prosecuting and arresting of people is meant to send a chilling message to people, “that it could be you the next time”.
Mishra’s daughter, a homemaker in her 30s, said her father had posted the videos while in an emotional state of mind, in anger at the deaths of Covid-19 patients who could not be provided timely oxygen support.
She said even if her father had used harsh language in the videos, the Jaunpur police could have simply sent a notice instead of coming to Chennai from UP to arrest him. “He is not a criminal.”
“We voted Modi to power, why can’t we question him? Whatever my dad asked (in the videos) about the mishandling of Covid or lack of oxygen supply are facts,” she said. Speaking to Article 14 over the phone, she said citizens genuinely concerned for human life would certainly question those in power, “and that is what my father did.”
The Case of Retired IAS Officer Surya Pratap Singh
Now a practising lawyer, retired UP IAS officer Surya Pratap Singh is named in six FIRs registered between June 2020 and May 2021. These include cases for allegedly spreading misinformation, including one for tweeting a seven-year-old photograph of dead bodies floating in the Ganges in Unnao while referring to a more recent incident of floating corpses in Ballia.
Singh told Article 14 that the actions of the Uttar Pradesh police are “targeted” and police do not follow the rules of arrest.
He said that as per law, an accused person should be served a notice by the police before being arrested. The notice is served under section 41A of the CrPC. No notice was served on Thakur before his arrest.
“It has become the policy of the government to take action against people who question (it). This government takes dissent and critics personally and then selective actions are taken by the government,” he said. Previous governments including the Akhilesh Yadav regime were not so quick to take umbrage, he said.
Singh said these arrests are “clear violations” of Article 21 of the Indian Constitution. “The government wants to shut us down and not ask questions. The message they want to spread is to stop questioning the government, or else actions will be taken like in the case of a former bureaucrat or journalist or vlogger,” he said.
Taken Forcefully To Police Station: Retired IPS Officer
On 27 August, retired IPS officer Amitabh Thakur of the UP cadre was bundled up in a police van and taken to Hazratganj police station in Lucknow. He was booked for abettment to suicide in a case in which a survivor of a 2018 rape set herself ablaze earlier in August.
She died in hospital a few days before Thakur’s arrest. She had accused Thakur, among others, of assisting a Bahujan Samaj Party leader, the main accused in the rape case, to threaten and harass her.
An additional FIR was filed against Thakur and his wife Nutan at the Gomti Nagar police station in Lucknow on 27 August. Sub-inspector Dhananjay Singh filed this complaint stating that Thakur assaulted the police and obstructed government work at the time of his arrest in the abetment to suicide case.
Thakur and his wife were accused of obstructing a public servant, threatening to injure a public servant, obstructing apprehension and using assault with criminal force to deter a public servant from discharge of his duty. A senior police officer posted at Gomti Nagar police station told Article 14 that Thakur and his wife tried to attack policemen, didn’t cooperate with the arrest and also threatened that they would damage the sub-inspector’s career.
Thakur has been very vocal against the ruling state government since 2012, making it to the headlines when he accused former UP chief minister Mulayam Singh Yadav of threatening him. In more recent times, he has questioned the policies of the Adityanath government.
In May, he challenged the ministry of home affairs’ decision to compulsorily retire him on the recommendation of the UP state government. In an interview in August soon after announcing his intention to contest against the chief minister, he said Adityanath had been “spreading venom” even before he became an elected representative.
His lawyer-activist wife Nutan Thakur told Article 14, “The actions of the police in my husband’s case and in the Chennai case are a perfect example of misuse of power.”
She said those who question the government’s policies come under the police radar, and that the UP police violate the guidelines of the Supreme Court while making arrests.
Trouble began for them when her husband started questioning the government, she said. “The girl who accused my husband had also accused several other officers of the police before immolating herself,” she said, claiming that the Lucknow police took suo moto cognizance and named only two people in the abettment to suicide case.
‘No Leader Above The Constitution’
Former Uttar Pradesh Director General of Police (DGP) Vikram Singh said the arrest of Amitabh Thakur is a violation of Supreme Court procedures laid down in 1997 in the DK Basu vs State of West Bengal.
Thakur has alleged that he was taken to the police station forcefully, and not provided with the FIR copy or other documents related to the fresh case filed against him.
“The Supreme Court says bail, not jail, so the police should follow this as a thumb rule before arresting anyone,” the retired DGP said.
Retired district court judge Chandra Bhusan Pandey, a former legal advisor to the UP governor, said that every Indian enjoys freedom of speech guaranteed by the Constitution. He said at best a defamation case may be made out against a person being booked for speaking ill about a minister, while arresting him/her would amount to misuse of power.
"An FIR can be registered if a cognisable offence has been committed. Calling the Prime Minister a thief does not come under the category of cognisable offence,” Pandey told Article 14, adding that criticising leaders is not a crime. Calling the arrest of Manmohan MIshra “totally wrong”, he said the UP police appeared to be trying to end freedom of speech. “No leader is above the Indian Constitution," he said.
Veteran independent journalist Sharat Pradesh, who is based in Lucknow, said the BJP government in the state has been unable to accept “any kind of criticism, which makes them despots”. He likened the trend of arresting critics of the government to the Taliban and to Indira Gandhi during the Emergency.
"One Emergency was more than enough, this is very unfortunate. Where is democracy?" he asked.
Back in Chennai, the Mishra family said the pandemic and lockdown have been a trying time. When all procurement of official documents went online over the years, Mishra’s daughters began to assist him. But there has been almost no business since the first nationwide lockdown in March 2020.
“My appa has never been to a cinema theatre,” Mishra’s daughter said, explaining how careful they are with money. The family of six grew up in a single-room home, she said. Mishra would reminisce about his initial days in Chennai, telling his children how he would work all day and spend less than a rupee on his day’s only meal — a bun and tea.
She said, “We are just simple people leading normal lives. The police case and arrest have completely shattered us.”
(Saurabh Sharma is an independent journalist based in Lucknow. Dharani Thangavelu is an independent journalist based in Chennai. )