The Tamil Nadu police on Tuesday arrested R Rajagopal, editor of popular Tamil magazine Nakkeeran. According to news reports, the police has filed a case under Section 124 of the Indian Penal Code on a complaint apparently lodged by the governor’s office. The police is yet to release the first information report.

The matter pertains to a cover story that the magazine carried with allegations linking the governor’s office to an investigation into a possible sex racket at the Madurai Kamaraj University, forcing young girls to provide sexual favours to powerful men. A woman lecturer was arrested in the case and Governor Banwarilal Purohit formed a one-man commission go into the case.

If one went by initial reports, the arrest was carried out under a law seldom used anywhere in the country. Section 124 of the Indian Penal Code penalises people who assault the President or the Governor and restrain them from discharging their duties or compel them to discharge their duties using force.

This is what it says:

“Assaulting President, Governor, etc., with intent to compel or restrain the exercise of any lawful power. — Whoever, with the intention of including or compelling the President of India, or the Governor any State to exercise or refrain from exercising in any manner any of the lawful powers of such President or  Governor, assault or wrongfully restrains, or attempts wrongfully to restrain, or overawes, by means of criminal force or the show of criminal force, or attempts so to overawe, such President or Governor , shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.”

A mere reading of this provision makes it clear that the law mentions assault and points to an assault of physical nature. But in this case, the editor was arrested under the section for publishing a report in a magazine, a violation of criminal procedure. Section 124 is a non-bailable provision.

Section 124 has been very rarely used by states anywhere in India and a sweep of legal libraries online does not turn up any case settled either in the High Courts or the Supreme Court for this provision being invoked in the manner it has been. This means the use of Section 124 against Rajagopal could be one of the very few instances from the time Indian Penal Code itself was enacted.

Earlier this year, the Governor had stated that he could possibly invoke this provision against people who pose hurdles to his meetings with officials across the state. This was aimed at the Dravida Munnetra Kazhagam, which opposed the Governor’s move to take stock of implementation of government schemes in the state.

This incident would seem to be a clear violation of free expression. In 1997, the Supreme Court, in deciding on a prior restraint order on the autobiography of a serial killer named “Auto” Shankar, again in Nakkeeran involving R Rajagopal, made it clear that the standard of privacy for public figures was different from laymen. The court said:

“In the case of public officials, it is obvious, right to privacy, or for that matter, the remedy of action for damages is simply not available with respect to their acts and conduct relevant to the discharge of their official duties. This is so even where the publication is based upon facts and statements which are not true, unless the official establishes that the publication was made (by the defendant) with reckless disregard for truth. In such a case, it would be enough for the defendant (member of the press or media) to prove that he acted after a reasonable verification of the facts; it is not necessary for him to prove that what he has written is true.”  

When this is the case even for defamation proceedings and prior-restrain orders, to invoke a law as serious as Section 124 for publication of a news report imposes uncalled for restrictions on a media house.

The Tamil Nadu government has a history intimidating the press with defamation cases. When Jayalalithaa was chief minister, hundreds of such cases were filed against newspapers and magazines.