The other night I attended a comedy show. It was a sultry evening, the bar was packed, drinks were spilled and the comic (name withheld, because you know, he is a new guy, pretty funny, just starting of, terrified), kept stopping at regular intervals and asking the audience if they were were okay with what he was saying.
"Please let me know, haan, if any of you are offended by anything? Cool? Cool?"
I mean, to hell with Article 19 and Freedom of Speech and all these shenanigans of constitutional law. Heckler's veto — or even one single opinion of one single miffed member of the audience a day, keeps freedom of expression at bay.
In consequence, however, this creates an array of difficulties for comedians (remember Munawar Faruqui, AIB etc?), artists (remember the controversial Goddess Kaali poster, the row over the kissing scene in The Unsuitable Boy?), and well...women, especially those who have the audacity to say what they want to say and wear what they want to wear? No, I am not talking about the Karnataka High Court's Hijab verdict — not this time, at least.
I am talking about an assistant professor at a University in Kolkata, who was recently allegedly compelled to quit her job (with getting kicked out being the other option) because she had, in the past, dared to upload some photographs that someone found "objectionable" on her personal Instagram account.
The University's Response?
The Quint reached out the Vice-Chancellor (V-C) and the Dean of the University for a response.
On being asked about the allegations levelled by the ex-assistant professor, the Dean of Arts and Social Studies said, “no comments.”
Meanwhile, the V-C of the University, sent across a response which stated that the legal notice sent to the university by the complainant was "ill-motivated" and contained "fabricated allegations."
The response further asked for an "unconditional apology" from the professor as well as "a compensation of Rs 99 crore for damaging the University's reputation."
What Allegedly Transpired...
Essentially, it started with a boy's father filing a complaint about how he had chanced upon his son, a first year, undergraduate student, looking at his teacher's photographs. As per the university authorities' retelling of his grouse and as mentioned by the woman in her police complaint, he also thought it wise to "personally vet" the teacher's photographs.
The man then decided that the woman's photos were "crude, vulgar and provocative" in nature.
It may be pertinent to mention at this point, that this woman is a 31-year-old adult and had posted the photographs on her own personal Instagram account.
At least two of those photographs were those of her in a swimsuit which, according to her police complaint, had been uploaded by her as Instagram stories (ie only visible for 24 hours), well before she even joined the university.
In an equally shocking development, the university authorities, who had called her for a meeting in the aftermath of the complaint and allegedly 'slut-shamed' her in the process, now somehow had print outs of the pictures.
The woman does not know who the student or his father are, how the student chanced upon her older Instagram stories, and how the panel members ended up with print outs.
“I was told that the father of a student had emailed them the photos. In the meeting, they circulated printouts of the photos. I asked them to destroy the printouts and whatever copies of the photos they have because that’s an invasion of my privacy, but everyone in that room (seven people), including the VC, looked at my private photos posted on a private account,” she shared with The Quint.
At some point during the meeting, the Vice Chancellor also allegedly "chipped in with the remark that the complainant has the right to file an FIR against me, in which case I will be put behind bars," the woman said.
Okay, for starters, how?
Why The 'Jail Threat' Makes Such Little Sense
Why would she be placed behind bars for posting personal photographs on her personal profile, even if they "border on nudity” as the father of the boy seemed to suggest?
Yes, I know there have been police complaints about nude photo-shoots, paintings and films etc, but when did uploading your own photograph in a swimsuit on Instagram become a crime? If it was, wouldn't hundreds of film-stars, models, bloggers and vloggers be in jail?
Even though there are provisions to penalise 'obscenity', such as Section 67 of the IT Act (Punishment for publishing or transmitting obscene material in electronic form), Section 292 IPC (Sale, etc., of obscene books, etc) and 294 IPC (obscene acts and songs), this woman cannot legitimately be prosecuted under any of the above for those pictures.
In the Aveek Sarkar case of 2014, the Supreme Court junked the Victorian-era Hicklin test (which took a narrow view of obscenity) and replaced it with the American Roth test, which says that contemporary community standards must be applied while evaluating obscenity.
"Only those sex-related materials which have a tendency of “exciting lustful thoughts” can be held to be obscene, but the obscenity has to be judged from the point of view of an average person, by applying contemporary community standards," the court categorically stated.
Have those attempting to school the assistant professor SEEN Instagram? Or even glanced at a televisions screen?
Besides, quashing an obscenity case against MF Hussain that had been filed against the artist for some of his nude paintings, the Delhi High Court had eloquently pointed out:
"Beauty lies in the eyes of the beholder, so does obscenity."
So under what charges did the VC purportedly suggest that the woman can be put behind bars?
Why the Police Must Find Out How Her Photos Were Obtained
An FIR has now been registered against unknown persons on a complaint by the woman under:
Sections 354C (voyeurism)
509 of the IPC (word, gesture or act intended to insult the modesty of a woman).
The Quint also reached out to Kolkata Police, who said that they have recorded her statement and are trying to identify "whether the photos from her social media account were unlawfully obtained."
It makes sense for the police to do so because, in case her photographs were unlawfully obtained or circulated, there is a very concerning cybercrime afoot, which also needs to be dealt with under relevant sections of the IT act.
Needless to say, it is also a severe violation of her right to privacy, which has been declared a fundamental right by a nine-judge bench of the Supreme Court (in Justice K.S.Puttaswamy vs Union Of India).
Any Other Legal Recourse Available?
The woman has also claimed that she was first pressed to tender an apology by members of the committee and subsequently told that she should either resign or will be removed.
“There were ‘only two ways’ to going about this: either my service would be terminated by the university, or I would have to voluntarily resign,” she said she was told.
Ishan Khanna, a disputes lawyer practicing with a reputed law firm told The Quint that in such cases people can (citing a flagrant abuse of their rights) file a writ petition seeking stay on the resignation, reinstatement, damages or even a public apology.
And this abuse of rights includes abuse of fundamental rights as well. Such as:
Article 19 (1) (g) of the constitution guarantees the 31-year-old the right to practise any profession, or to carry on any occupation, trade or business. Her employment cannot be taken away from her on arbitrary grounds and without adherence to legally established procedure.
As in the assistant professor's case, sometimes, however, employers push employees to resign in a bid to avoid litigation, creating a paper-trail and in an attempt to walk away with clean hands. But that does not mean that it is not legally problematic, and cannot be challenged in a court of law.
In Prabhat Atri v. State of UP, the apex court referred to Corpus Juris Secundum (a legal encyclopedia) and held that the expression ‘resignation’ is referred to ‘voluntary surrender of service’. Which implies that a resignation is only of consequence if it is not submitted under duress.
“To constitute a `resignation', it must be unconditional and with an intention to operate as such,” the Court said.
Article 19 (1) (a) guarantees her the freedom of speech and expression. Her social media activity is protected by the same.
In the MF Hussain case, the Delhi High Court had exhorted the value of this freedom, stating: “Our Constitution by way of Article 19(1), which provides for freedom of thought and expression, underpins a free and harmonious society. It helps to cultivate the virtue of tolerance.”
Article 21: In questioning her social media activity, the panel also raised eyebrows at her exercise of personal liberty, which is protected under Article 21 of the Constitution of India, and cannot be deprived except according to procedure established by law.
Article 14: Most importantly, though, her fundamental right under Article 14 — right to equality — appeared to have been violated during the course of what ensued.
Article 14 prohibits discrimination on grounds of religion, race, caste, sex or place of birth.
The assistant professor here, being a woman, appeared to have been held up to higher moral standards and subjected to much greater scrutiny (with her social media activity recorded and analysed by a panel of professional colleagues) than a man normally would.
This may be countered in a variety of ways, perhaps there would have even been a rare instance or two of the university asking a male faculty member to explain themselves (who knows), but at the very face of it:
To moral police a woman based on clothing and photographs is an excruciating and obvious manifestation of patriarchy. The alleged fact that she was pushed to resign in the process only points glaringly towards sex-based discrimination.
'A Hotbed of Moral Policing': University Authorities Receive Flak
For now, however, reports suggest there have been sparks of protest by students against the treatment of the assistant professor by the university authorities. Several people also took to social media to express outrage over the incident.
Besides, over 10,000 people appear to have signed a change.org petition seeking an unconditional apology from the university authorities and disciplinary action against the vice chancellor. The petition says:
"...such an incident points to an otherwise aspirational University becoming a hotbed for moral policing, as opposed to being a safe and progressive environment for teachers and students alike."
(With inputs from Debayan Dutta.)