On Monday, a political storm erupted in Tamil Nadu after a 28-year-old researcher, Lois Sofia, was arrested by the state police for shouting slogans against the Bharatiya Janata Party-led Union government.

The complaint was lodged by state BJP president Tamilisai Soundararajan, who confronted the woman at the Thoothukudi airport for shouting “BJP’s Fascist government down down” while they were both on a flight from Chennai.

Soundararajan later told reporters that the woman did not “look normal” and the manner in which she behaved led to suspicion that she might have been part of some organisation.

The alacrity with which the Tamil Nadu police acted against Sofia is alarming given the innocuous nature of the offence. Stringent provisions under the Indian Penal Code and the Tamil Nadu City Police Act were invoked, indicating that the intent of the police was to send Sofia to jail.

The judiciary, which is expected to be the guardian of fundamental rights of citizens, failed miserably in its role, with a judicial magistrate S Thamilselvi, on Monday night, mechanically issuing an order for Sofia to be sent to 15 days judicial custody.

The arrest led to a strong response from Opposition parties, who demanded Sofia’s immediate release. She was granted bail by a court on Tuesday.

Dravida Munnetra Kazhagam president MK Stalin took to Twitter to condemn the arrest, and dared the police to arrest him by repeating the slogan that Sofia was said to have shouted.

The #பாசிசபாஜக_ஆட்சிஒழிக (#FascistBJPDownDown) began trending on Twitter on Monday evening.

Abuse of law

According to Soundararajan, the researcher first shouted the slogan in the flight. Soundararajan said that she did not complain to the flight attendants at that time as she did not want to disrupt the peace of fellow passengers.

But when she reached the airport after the flight, Soundararajan confronted Sofia. A video of the incident shows a woman police officer trying to calm the BJP leader down, with others making the point that this was not a serious issue and that the young woman should be let off.

But Soundararajan then insisted that the police take action, claiming that the researcher raised her fist while shouting slogans.

What happened next could only be termed as a total abuse of law. The intention of the Thoothukudi police seemed to have been to send the woman to jail, showing no discretion whatsoever in dealing with the alleged offence.

This is borne out in the provisions that have been invoked as per the Indian Express.

The first is Section 290 of the Indian Penal Code that is used for those who create a public nuisance. This offence carries only a fine of Rs 200 and is a bailable offence, which means it is possible for the accused to obtain bail through a bond at the concerned police station.

The police also used Section 75 (1) (c) of the Tamil Nadu City Police Act, which is relevant to the alleged offence. The provision reads thus and is also a bailable offence:

“(1) Whoever, in any public place, office, station-house or Court, or in any place of public amusement or on board of any passenger boat or vessel, is:

(c) 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.

The third provision invoked shows the police’s intent to jail the woman. The previous two provisions would have been more than enough to deal with the alleged offence. But the police also seems to have invoked Section 505 of the Indian Penal Code, which is used to punish “statements conducing to public mischief” and is a non-bailable offence. This means the accused can only obtain bail through the court after their remand.

While the police acted in an arbitrary manner, the magistrate failed to apply her mind and passed a mechanical order sending the woman to judicial custody for 15 days, thereby failing to follow established guidelines put in place by the Supreme Court.

In Joginder Kumar vs State of Uttar Pradesh, the Supreme Court made the following observation:

“No arrest can be made because it is lawful for the police officer to do so. The existence of the power to arrest is one thing. The justification for the exercise of it is quite another. The police officer must be able to justify the arrest apart from his power to do so. Arrest and detention in police lock-up of a person can cause incalculable harm to the reputation and self-esteem of a person. No arrest can be made in a routine manner on a mere allegation of commission of an offence made against a person.” 

Elaborating on this, the court pointed to a report of the National Police Commission, which said that an arrest, even when the offence is cognisable, shall be made if the offence is grave, like murder, or if the accused is prone to violence and there is a danger that the person may evade the process of law. Likewise, an arrest is acceptable if the person is a habitual offender.

In Sofia’s case, none of the above apply. Disregarding Supreme Court guidelines, both the police and the magistrate have functioned in a completely mechanical manner, curtailing the woman’s liberty.

Further, while the police acted in haste to send the woman to jail, it failed to take any action on a complaint made by her father, who said BJP members subjected them to the worst of abuses at the Thoothukudi airport.