India's West Bengal Human Rights Commission Rules in Favor of Professor Mahapatra, Mr. Sengupta, and, Free Speech


On August 13, 2012, the West Bengal Human Rights Commission (WBHRC), after conducting a nearly three month investigation initiated suo motu (at its own motion or initiative), issued a stinging rebuke to the police officers of Purba Jadavpur Police Station on the southern fringe of Kolkata.   The WBHRC characterized the officers’ treatment in April of Indian Professor Ambikesh Mahapatra and his neighbor, retired engineer Subrata Sengupta, as a “case of police excess and highhandedness.”  After the two men were assaulted for emailing a fairly innocuous cartoon poking fun of West Bengal Chief Minister Mamata Banerjee, the police officers immediate response was to arrest Mahapatra and Sengupta.  In its advisory opinion the WBHRC recommended departmental proceedings against the two arresting officers, Additional Officer-in-Charge Milan Kumar Das and Sub-Inspector Sanjoy Biswas.  The WBHRC also ordered the West Bengal government to pay both Professor Ambikesh Mahapatra and Mr. Subrata Sengupta each Rs. 50,000 (approximately $900).   The WBHRC advisory opinion states, “The government must compensate Mahapatra and Sengupta for the manner in which they were arrested from their residential complex and detained” in the police lockup of the police station.

The WBHRC, however, also stated that nothing in the order would affect the police investigation of the underlying case against Mahapatra and Sengupta.  They are still both set to appear in court beginning on September 27 to defend themselves against charges of outraging the modesty of a woman, defamation and using the Internet to defame another.   

The WBHRC found a great deal wrong in the officers’ actions.  The opinion notes that the officers not only failed to immediately arrest Ambikesh’s and Subrata’s assailants, but also failed to even inspect the cartoon prior to detaining the two gentlemen.  The opinion also noted that the offenses for which the two men were charged require properly issued warrants.  The arrests were carried out without warrants.   

Conversely the WBHRC found nothing wrong with the collage cartoon that Professor Mahapatra forwarded to members of his Housing Cooperative Society with the email account of Housing Secretary Sengupta.  To quote the opinion, “In this case, the cartoon is based on the story line in a feature film meant for children and adults alike.  … This cartoon obviously referred to the recent political events in the aftermath of removal of Dinesh Trivedi … and the appointment of Mr. Mukul Roy.  No one can attribute even remotely any suggestion which is lewd or indecent and slang … in respect of the subject.”  In short, the panel concluded that there is nothing even remotely offensive about the cartoon.   

In strong language defending each Indian’s fundamental rights, the human rights panel declared, “Our Constitution protects every citizen’s fundamental right of free speech and expression under Article 19(1)(a).  This freedom is of course not unfettered and is only subject to reasonable restrictions to be imposed by law.  … No law in our country prevents criticism against Ministers or Chief Minister however popular they may be or even a door to door critical campaign against Ministers unless the campaign offends any prohibition in law.”  (The mention of a door to door campaign refers to the assailant Amit Sardar’s unsubstantiated allegation that Mahapatra and Sengupta had distributed cartoons critical of Chief Minister Banerjee one apartment at a time.) 

Briefly recounting India's historical acceptance of even “positively savage” editorial cartoons, the panel noted that, “Our first Prime Minister Nehru and even Mrs. Indira Gandhi enjoyed cartoon and considered them a useful institution in an otherwise pompous and self centered world of politics.  Nehru once said ‘it is good to have the veil of our conceit torn occasionally’.  Referring to veteran cartoonist Shankar, Nehru also said, ‘Don’t spare me.’”

The strongest and most unambiguous language, the panel saved for the opinion’s conclusion.  In that conclusion the members of the panel, Chairman and retired justice Ashok Kumar Ganguly, retired justice N.C. Sil, and S.N. Roy, wrote, “Citizens who are airing critical opinion about the ruling party cannot be picked up from their residence by the police at the instance of an agitated mob whose members are unhappy with the critical views of those two persons.  If this is allowed to continue then not only the human rights of the dissenters will perish, free speech, which is the life blood of democracy, will also be gagged. Constitutional provisions will be reduced to parchment promises and we will be headed towards a totalitarian regime in complete negation of democratic values in the largest democracy of the world.  This Commission cannot be a mute spectator to such a sordid situation in the name of maintaining the rule of law.” 

Above is a summary of the WBHRC's decision.  This television news report by the Cable News-Network - Indian Broadcasting Network (CNN-IBN) includes a brief interview of a Kolkata Bureau Chief.  Sougata Mukhopadhyay outlines what is likely to happen next.

The media outlet NDTV has posted the entire WBHRC report at Mamata Cartoon Controversy: Human Rights Commission Slams Arrest of Professor.   This short opinion of just twelve pages is well worth the time of anyone interested in free speech rights and/or the history of political cartooning in India. 

In a statement to CRNI, Professor Mahapatra said he welcomed the report and the recommendation of the WBHRC because they will "confer enough encouragment to the people who wishes democracy, freedom of speech for all and particularly for the common people."  He noted that the report lays out mistake after mistake committed by the officers clearly revealing that the arrests and detentions of the two men were "against the law of the land, the democratic rights of indivduals, freedom of speech, human rights, Constitutional rights and general moral values." 

The day after the WBHRC released its advisory opinion, West Bengal Chief Minister Mamata Banerjee lashed out at the judiciary.  “There are many incidents in which judgments are bought with money. … Corruption has made inroads into the judiciary and democracy as a whole,” she said at a seminar celebrating the 75th Anniversary of the State Assembly.  She didn’t just single out the courts, though.  She also not-so-subtly questioned the integrity of the WBHRC.  Without explicitly naming Commissioner Ganguly, Banerjee said, “I installed an individual in a seat of honor.  But he has no idea of his powers.  He is acting as if he is the Prime Minister or the President.  I am not afraid of money and muscle power.  I am prepared if there is any suo motu cognizance against me, or if I am arrested for my comments.” 

This is an ironic statement coming from the powerful Chief Minister who recently had a farmer arrested for asking her a tough yet simple question at a public rally.  It is safe to say that most of the muscle power in West Bengal resides with either (1) the Trinamool party members who carried out the assaults on fifty-two-year-old Professor Mahapatra and his 72-year old neighbor Mr. Sengupta, or, (2) the police officers who improper detained the two gentlemen.  Besides, the WBHRC has no enforcement mechanism to carry out its advisory opinions.

But the Chief Minister may have a point.  The Calcutta High Court on Thursday, August 16th, admitted a contempt of court petition against West Bengal Chief Minister Mamata Banerjee for her remarks alleging corruption in the judiciary.  If the Chief Minister is eventually charged with a crime for expressing her opinions, perhaps then she’ll understand the danger of criminalizing opinions.