A Critique of Pure Unreason

The faulty assumption that if Section 66a did not exist, the Air India crewmen or Palghar girls would not have been arrested

There’s a little joke and it goes like this. A woman calls up a police station and complains that the man next door is a pervert. The cops come. She takes them through her garden, climbs over the fence, scales the wall of the neighbour’s house, pries open the bathroom window, points out the man under the shower and triumphantly says: “Look how he’s exposing himself to me.” The case of the Air India cabin crew employees is a little like that. Except that it is multiplied by two.

In May this year, KVJ Rao and Mayank Sharma were arrested and spent 12 days in jail based on a complaint against them for derogatory online posts. They were also suspended from their jobs. The posts were made in a closed forum, which can be an online equivalent to a private table inside a bar, and when people speak to each other in private, they don’t refer to the Indian Constitution after every sentence. Three sections, one of the Indian Penal Code and two others of the IT Act, were slapped on them. This included 66a, which is fast becoming the most infamous clause in Indian legal history.

Last week, after belated bad press, the Mumbai Police realised that they had been deluded. The complaint against the two was by someone in dispute with them for control of the cabin crew association. The police, therefore, did something equally moronic to make amends. They slapped Secton 66a on the complainant.

For someone who’s spent 12 days behind bars, that really does not help. Naturally, Rao and Sharma, when they come on television, have little to say about the complainant; instead, their vitriol is at the police. For the online community and activists, this is all the fault of Section 66a. For some reason, they seem to think that its provision of ‘causing annoyance’ allows a free hand to the police. This is slightly blinkered thinking by those who think we are a society governed by law.

Consider the sequence of events. The two are arrested in May and it doesn’t make a dent to the conscience of the nation. It takes an entirely different case six months later—the arrest of the Palghar girls over the Thackeray Facebook post—to bring their case into the limelight. Also note the difference between the two cases. In the Palghar one, there are two teenage girls, there is Shiv Sena vandalism, there is Thackeray’s death—it’s an explosive cocktail of middle-class outrage. It is too big to miss. In the case of Rao and Sharma, it’s just two adult men caught in an inter-union crossfire. Thousands of innocent men get sent to jail daily. If Thackeray had not died and if the Palghar girls had not been arrested, then Rao and Sharma were not even a statistic.

What does that say about justice in India? That its levers move lethargically, without any reason and on pure reaction—‘This is now shocking, so let’s fix it’. The Rule of Law is the opposite. As a principle, it has evolved over millennia of civilisation to remove arbitrariness. In the case of the crew men, it has been arbitrary from start to finish. This is true even of the justice they now get.

If Section 66a was not there, nothing would have changed. Rao and Sharma would still have spent time in jail under some other section of some other Act, and there are many of them. The Palghar girls would also have been arrested on some other section of some other Act with precisely the same national outrage. You don’t need ‘annoyance’ to arrest someone. There is, for example, ‘mischief’ in the IPC.

For the last two weeks, in Bangalore’s Cubbon Park, the police have decided that couples cosying up in public couldn’t be allowed. In some North Indian towns,  they call the media and start slapping couples in public. In Mumbai, they take a couple of hundreds as bribes and that (as all traffic cops would agree) is the perfect solution—there is punishment as well as profit. The Cubbon Park police are more virtuous. They send cops with empty videocams to go near the couples as if they are recording them, thus putting the fright of both the law and an MMS scandal into them. Now, if someone can say which section this bizarre antic is done under, we can all agree there exists Rule of Law.

Cubbon ParkPaghar girlsSection 66a