Institutions continue to be clouded in attacks in Tamil Nadu, but...

The ‘Raj Bhavan/Nakkeeran Gopal case’, in which editor R Gopal was arrested in the morning and set free by the court in the afternoon, is not the first one where the Tamil Nadu’s once-reputed police force is seen as faltering in the eye of the law, says N Sathiya Moorthy.

At a time when self-styled ‘nationalist’ forces in the ‘national’ level BJP, heading the Centre, have been talking about taking a major stride in ‘Dravidian’ Tamil Nadu, there have been increasing attacks on constitutional and other governmental institutions meant to protect the law of the land.

The more recent one pertains to Tuesday’s arrest and release of Tamil magazine editor ‘Nakkeeran’ Gopal, who became famous for his role in obtaining freedom for late Kannada matinee icon Rajkumar, when abducted by slain brigand Veerappan more than a decade ago.

Gopal was arrested at the Chennai airport while clearing security check for boarding a flight to Pune, en route to the Sai Baba temple at Shirdi. The arrest followed complaints from the Raj Bhavan that Gopal had caused the publication of three articles over the past six months, insinuating Governor Banwarilal Purohit and the governor’s secretary, R Rajagopalan, IAS, in what is known at times as the ‘Madurai University sex scam’ allegedly involving jailed college professor Nirmala Devi, who in turn, is being charged with facilitating meetings between scores of her girl students with higher-ups in the establishment.

While the police cannot and should not ignore a formal, written complaint from the Raj Bhavan, it is anybody’s guess who took the decision to arrest Gopal under the controversial Section 124 of the Penal Code. The section deals with ‘assaulting President/governor with intent to compel or restrain the exercise of any lawful power’. 

As it turned out, XIII metropolitan magistrate S Gopinathan had no hesitation in refusing ‘judicial custody’ for Gopal and instead free him, saying that the police had not made out the case. In doing so, the magistrate sort of set an unlikely precedent for a lower court to seek the opinion of onlookers, in this case veteran journalist N Ram who was present in the court hall to express solidarity with Gopal.

Some legal experts believe that with the magistrate’s order, the police might have escaped the wrath of the higher judiciary which Gopal, a veteran and successful litigant for ‘freedom of expression’ would have moved, if he had been remanded. Gopal had obtained a favourable judicial order from the Supreme Court in the past, including one for the publication of the ‘autobiography’ of serial-killer ‘Auto Shankar’, recorded when he was still in prison, facing trial, and later death sentence, which ultimately was carried out.

In the present ‘Raj Bhavan case’, experts argue how a ‘personal attack’, however defamatory and however amounting to bringing down the dignity of the high gubernatorial office in the eyes of the public, might not tantamount to offence under Section 124. As they point out, whether under this section or any other(s), the prosecution might not have been able to avoid putting Purohit in the box if the defence had sought cross-examination. 

It is possibly in this context that Gopal’s counsel asked to know from the prosecution in the magistrate’s court if the complainant-official of the Raj Bhavan had received any written complaint from the governor before approaching the police. 

To avoid embarrassment to the high office, and protect the incumbent from constant harassment, the Constitution protects the President and governors from being sued and brought before the court of law. It would also look incongruous if the Head of State, under whose seal all arms of the Indian State function, be hauled up before courts of law or any executive or legislative institution, to respond to questions and be subjected to cross-questioning, in particular.

However, it is unclear if the same protection is available if a governor chooses to initiate a legal process, culminating possibly in the offending party seeking to put him/her in the dock for cross-examination. In real terms, President V V Giri, when presented with the option of tendering evidence before the Supreme Court in the election case against him, waived the constitutional protection. He agreed to the court’s reported suggestion that the Head of the State should not be seen standing before the hon’ble justices like a common criminal or whatever. Hence, President Giri took a chair offered to him by the court. That Giri won the main case and continued as President is another matter unconnected with his court appearance.

The ‘Raj Bhavan/Nakkeeran Gopal case’ is not the first one where the Tamil Nadu’s once-reputed police force is seen as faltering in the eye of the law. Over the past months, the police arrested pan-Tamil activist, Thirumurugan Gandhi, founder of the ‘May 17 Movement’, originally fighting for the post-war ‘Sri Lankan Tamil cause’ but expanded to cover everything pan-Tamil, nearer home in Tamil Nadu. The courts ordered/facilitated his freedom, the second time after a few weeks in prison, when he also complained of health issues and had to be hospitalised. In the first instance, however, the court ordered his instant freedom, as with the case of ‘Nakkeeran’ Gopal.

These are not the first cases of the kind in Tamil Nadu in recent times, where courts have found the police/prosecution, and the larger State apparatus, wanting. Some months ago, it was made known that nearly 20,000 ‘contempt of case’ petitions were pending before the Madras high court, against state government officials, or the government as an institution, or both. On several occasions in recent years, the high court especially has summoned senior officials, including the chief secretary, director-general of police, and/or others, to explain their decisions, inactions or conduct.

Independent of these are issues pertaining to the police foisting very serious cases against individuals and groups, without any serious thought being given to the preceding process of decision-making leading up to the police action. At the height of the Koodankulam ‘anti-nuclear’ protests some years ago, the police filed ‘sedition’ charge under Section 124-A of the IPC against a group of 3,000 unnamed protestors. Needless to say, the Jayalalithaa government of the time, which started off on the collision course with the protestors, soon withdrew all those cases. No serious effort was also known to have been made to effect even a minimum number of cases under such a serious section as 124-A. 

One of the two cases against Thirumurugan Gandhi was under Section 124-A, for making anti-national statements at overseas venue and in ‘self-confessed’ meetings with foreign dignitaries. The issue pertained to the police firing on ‘anti-Sterlite’ industrial protest in the southern coastal town of Thoothukudi, in which 13 persons were killed in May. Social activists and political parties opposed to the ruling AIADMK government of Chief Minister Edappadi K Palaniswami, alleged harassment of Thoothukudi protest leaders, with the police branding them as Naxalites.

Be it as it may, the police was involved also in removing local protestors, allegedly instigated by Naxalite ideologues from other parts of the state, against the eight-lane, Chennai-Salem ‘green corridor’. Leave aside the Rs 10,000-plus crore budgeted cost, and questions relating to the need for a new highway when there was already a six-lane highway connecting the two cities, the way the state government went about the land acquisition process with speed and alacrity for which it is not known otherwise, made newspaper headlines more than many others, especially after the ‘anti-Sterlite’ protests and even more, the historic, state-wide ‘pro-Jallikattu protests’ of January 2017. On each one of these issues, leave aside the police, the state administration as a whole was seen as being slow at the start and over-reacting when caught ‘unawares’!

At the same time, critics of the state administration, especially of the ruling party, claim that the police was going slow in arresting BJP leader, H Raja and S Ve Shekar, the latter also a yesteryear film and stage personality, in respect of several cases pending against them in different police stations across the case. Critics, as also the judiciary, have also been pointing to the delays in action against the infamous ‘gutka scam’, allegedly involving state ministers and top police officials.

The Opposition also point to the slow pace of action, if at all any, against state ministers and others against who central agencies, including the CBI, IT and ED, had found evidence through frequent raids -- and allege a political nexus. In the ‘Raj Bhavan case’, they point out, Governor Purohit should have gone to the police or the government’s anti-graft DVAC wing, ordering detailed investigations into his public allegations of ‘crores or rupees’ changing hands’ in university VC appointments before he began intervening as the chancellor, and  not stopping with such public statements.

In political terms, there is nothing to suggest that the Edappadi Palaniswami government is as weak as a section of the media, especially the social media, seeks to make it out to be. Even granting it is weak in political and legislative terms, the ruling AIADMK’s much stronger government under the most charismatic and ‘tough-talking’ female chief minister, the late, Jayalalithaa Jayaram, acted almost on the same route while dealing with public sentiments and consequent protests. Rather, what a strong government under a stronger leader could get away with, a perceived weak leadership is seemingly applying without ‘proper application of mind’.

With the result, the state government is often seen as erring -- and is also erring -- in marshalling facts and evidence in critical cases, as against Thirumurugan Gandhi, and others and also look at all aspects, both political and legal, before taking decisions for the police and the rest of the administration to implement/enforce.

On the one hand, despite some media reports speaking about the reported reactivation of Naxalites/Maoist groups in the state, no effective measure, legal or police action -- seems to have been taken to end the menace. In the ‘Thirumurugan Gandhi case’, when there was enough evidence that his website and Twitter may have provided, the police/prosecution could not build a cast-iron case against him.

On the ‘Jallikattu issue’, the state government has failed to obtain from the single-member post-protests Justice S Rajeswaran Commission of Inquiry, headed by a retired judge of the Madras High Court, even an interim report, pertaining to the end-game violence, in which the police and the protestors, especially in Chennai’s famed Marina sands, blamed each other. If made available in time, an interim report on the subject, keeping the main report pending, could have helped the state government and the police to avoid or minimise the impact of the ‘Thoothukudi violence and police firing’ in May this year.

It is another matter that in more recent weeks, the Madras high court questioned the rationale of the state government appointing and continuing with the one-man Justice R Reghupathy commission of inquiry, set up purportedly to go into allegations of corruption against the predecessor DMK government of late chief minister M Karunanidhi. The court observed how Rs 400 cr was spent on a new building by the DMK government and also by the successor Jayalalithaa administration converting it into a super-speciality hospital.

More importantly, the HC said how the commission had done precious little work over the past years, and how the government had already spent Rs 4.5 crore already. The government had little choice but to wind up the commission, just a couple of weeks back.

N Sathiya Moorthy, veteran journalist and political analyst, is Director, Observer Research Foundation, Chennai Chapter.