Shouting anti-BJP slogans at the party’s Tamil Nadu chief Dr Tamizhisai Soundarajan was enough to land Lois Sofia, a young female student visiting her hometown in Tamil Nadu, in jail.
The slogans reportedly made inside the aircraft – after it landed at Thoothukudi airport – were not personal, and were targeted at the BJP government, calling them “fascist”. Nonetheless, it angered the politician, who insisted the police at the airport take action against the student.
While Sofia has now been granted bail, she was arrested and initially remanded by a magistrate to 15 days judicial custody. But what crimes did she allegedly commit? And are such offences borne out by the facts?
Initial Reports vs Actual FIR
Initial reports indicated that Sofia had been booked under the following legal provisions:
- Section 505(1)(b) of the IPC - Intent to cause fear or alarm
- Section 290 of the IPC - Public nuisance
- Section 75(1)(c) of the Tamil Nadu City Police Act 1888 - Impolite reply to a public servant*
The first charge among these (Section 505) is an incredibly serious one, used to punish statements meant to cause military officials to mutiny, cause fear or alarm to the public, or incite a community to attack another community. The punishment for this offence can go up to three years’ imprisonment.
From what we know about what Sofia allegedly said, it is difficult to see how she could be said to have intended to do any of these things. Alleging that she had committed this offence would have been excessive and unreasonable on the face of it – and there is no mention of Section 505 in the actual FIR. That Sofia had been booked under this serious provision was misreporting, and unfortunately made the case against her seem more serious than it was.
Here’s the text of the actual FIR filed at the Thoothukudi police station:
Copy of the FIR registered against Lois Sofia based on the complaint from Tamilisai Soundarajan / Airport Director, Thoothukudi pic.twitter.com/21J4b20VfL— Arvind Gunasekar (@arvindgunasekar) September 4, 2018
From this, we can see that Sofia was booked under Section 290 of the IPC and Section 75(1)(c) of the TN City Police Act only.
Section 290, Indian Penal Code 1860 – Public Nuisance
According to Section 268 of the IPC, a person is guilty of a public nuisance if they do anything which “causes any common injury, danger or annoyance to the public... or which must necessarily cause injury, obstruction, danger or annoyance to persons who may have occasion to use any public right.”
Section 290 of the IPC is the charging provision, which prescribes the punishment for those found guilty of public nuisance – no imprisonment and a maximum fine of Rs 200.
It may well be that Sofia’s sloganeering caused annoyance to Dr Soundarajan, but normally the criminal offence of public nuisance requires interference with the rights of the public at large or a relevant portion of them – Section 12 of the IPC specifies that the word ‘public’ includes any class of the public or community (though class can refer to small groups as well).
How exactly Dr Soundarajan’s annoyance at Sofia’s sloganeering fits within this framework is difficult to see.
Even if there was a reasonable case of public nuisance to be made out, this is an offence which doesn’t entail any imprisonment as part of the punishment. Arresting a suspect and remanding them to judicial custody, therefore, would appear to be unjustified in such a case.
Section 75(1)(c), TN City Police Act 1888
One of the more intriguing aspects of this whole series of events has been the proliferation of cases describing Section 75(1)(c) of the Tamil Nadu City Police Act as a provision which punishes an impolite reply to a public servant. From The Hindu to News 18 to The Print, this is how the provision has been described.
However, the actual provision of the law says nothing of the sort. Section 75 describes penalties for drunkenness or riotous or indecent behaviour. Section 75(1)(c) punishes a person who is found –
"“behaving in a violent or boisterous or disorderly or riotous or indecent manner or using any threatening, abusive or insulting words which causes or is likely to cause a breach of public peace.”"
Sofia is not alleged to have been violent or incited violence and the phrase “Fascist BJP Government down, down” hardly seems threatening. How this could possibly cause or be likely to cause a breach of peace is difficult to see.
Unfortunately, we see yet another provision being misreported by the media, and used to make it look like Sofia had actually committed a criminal offence. In fact, even on the basis of the wrong version of Section 75(1)(c), the requirement to be polite to a public servant is in response to something the public servant communicates to you while performing their official duties.
Soundarajan is not in fact a public servant, being currently part of neither the central or state legislature, and even if she were somehow construed a public servant, she was not exercising her official duties at the airport when she responded to Sofia’s slogans.
As a result, whether you use the real Section 75(1)(c) or the incorrect one, Sofia’s actions do not appear to fall foul of them.
Soundarajan’s Unfounded Comments and the Mechanical Remand
There has been a fair bit of debate over the acceptability of Sofia’s actions. The Congress has called it yet another example of the country being under an “undeclared emergency”, BJP supporters have said her arrest was justified, and even senior journalist Shekhar Gupta, editor of The Print, argued that what Sofia did was against aircraft safety rules, and so her behaviour was criminal – The Print ran a story based on the same argument as well.
However, the FIR against her includes no complaints under the Aircraft Rules 1937, which prohibits verbal assault, intimidation and threats to any person. It should be noted that for such threats to fall foul of the relevant rule (Rule 23), the statements must be “likely to endanger the safety of the aircraft or of any person or jeopardises the good order and discipline on-board the aircraft.”
Bringing up these rules therefore only distracts from the actual issues at hand - whether or not Sofia’s statements weren’t protected free speech, and whether they disclosed any elements of the offences she was booked under.
Soundarajan for her part argued that while a person has freedom of speech, they cannot shout inside an aircraft. In the FIR, she also says that she suspects Sofia’s background because of her behaviour, and asked the police to enquire and take action against her.
This fits uncomfortably into the current situation where any statement against the government is used to raise suspicion about a person’s background, much like the Urban Naxals controversy that is raging over the arrest of activists by the police across the country.
The troubling implications of such a statement can be seen by the fact that the police asked for judicial remand of Sofia after arresting her when there was obviously no need in terms of the alleged ‘offence’ – the only reason they could have for wanting to keep her in custody was to investigate her antecedents, which seems a direct result of Soundarajan’s complaint.
The magistrate also seems to have been swayed by this, perhaps when granting 15 days judicial custody for this – this much time would only be needed if any further investigation was required, which doesn’t appear to be the case for merely shouting slogans – and as pointed out, even a bare perusal of the case shows no criminal offences have been made out.
Either that, or the judge mechanically passed an order that the police and the complainant wanted in this case, which is a broader problem that was indeed highlighted by Justice Muralidhar of the Delhi High Court when hearing the habeas corpus petition for Gautam Navlakha (one of the activists arrested last week).
In a nutshell, this whole affair appears to have gotten vastly out of hand, whether for misreporting of the alleged offences, the failure of any offences to be made out, or the mechanical way in which the heavy hand of the law has been used against a person exercising their right to freedom of speech.
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