Not only were the procedural safeguards violated, but there was no evidence to prove the film critic was dangerous to society.

If taken to court Telangana will have tough time justifying move to extern Mahesh Kathi
news Law Saturday, July 14, 2018 - 11:58

Film critic Mahesh Kathi finds himself in the unenviable position of having been externed from his home city of Hyderabad for six months, even though he has no criminal record. His only wrongdoing, according to the Telangana Police, was that he expressed his views on the Ramayana with candour while speaking on a debate in a Telugu news channel.

The debate was on a recent sedition case filed against rationalist and humanist Babu Gogineni, and Mahesh, a Dalit, was merely standing up for Gogineni, who had also, incidentally, critiqued the epic.

The police have said on record that it was ‘necessary’ to extern him, and justified their move that his brash comments have hurt religious sentiments on multiple occasions, and have the potential to ‘detrimentally’ affect the ‘even tempo of life’.

Telangana DGP, Mahender Reddy, has squarely put the blame on Mahesh because members of various Hindutva groups took out protests against his comments. Judging by the settled principles of law on the subject of externment, the police’s action appears to be prima facie ham fisted, and against the law.

Procedural safeguards violated

Based on a series of incidents starting from the 1950s, the Supreme Court held that the decision to extern a person must not be a mechanical one. Although the police is both the judge and jury in externment cases (and this is legally permissible), the principles of natural justice must be strictly adhered to.

This means that the person about to be externed must be given a hearing, and he should have the right to cross-examine witnesses who support the police’s allegations, and also scrutinise the material on record. Moreover, the police officer passing the order of externment must apply his mind to the case, and give clear and cogent justifications for the action.

In Mahesh’s case, no hearing happened and no cross-examination took place, the order was merely passed.

The Prem Chand decision

The Supreme Court’s judgement in the Prem Chand case of 1981 lays down one of the most authoritative expositions on the extradition law.

Here, Justice VR Krishna Iyer laid down ironclad safeguards for a person who is on the police’s externment list – these safeguards were substantive in nature, and were a much-needed progress built on the procedural safeguards put in earlier.

It emphasized that an order of externment should not be passed without observing natural justice, and that vague allegations and secret hearings were violative of Articles 14, 19, and 21 of the Constitution.  The court held that there must be a clear and present danger based on credible material, which makes the movements and acts of the person in question alarming or dangerous or fraught with violence.

Likewise, there must be sufficient reason to believe that the person is so desperate and dangerous that his mere presence is hazardous to the community and its safety.

What was the ‘clear and present danger’ that Mahesh posed? What was the ‘credible material’, barring some stray agitations by Hindutva groups, that the police relied on? The police haven’t answered these questions simply because it does not have an answer.

The police action also appears to be directed against a Dalit, who dared to criticise characters from the Ramayana. Social capital, or the lack of it, plays a crucial role here. Otherwise, why was upper-caste Telugu writer Ranganayakamma, who wrote Ramayana Vishavruksham (Ramayana: The Poisonous Tree, a Marxist feminist version of the Ramayana) regarded as a liberal intellectual, and not pilloried?

Moreover, why is Telangana BJP MLA Raja Singh, with 18 hate speech cases against him and one who never stops spewing communal venom, not externed by the police?

For now, Mahesh has gone to Bangalore, where, speaking to the media, he said he will explore all legal options against the police’s action. If he launches a robust legal onslaught against the violation of his fundamental rights, the police will have a tough time justifying its action before a court.

Views expressed are author's own

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