How Legal Was Guwahati Police’s Detention of Street Artists Drawing Akhil Gogoi’s Mural?

“My main problem with cops is that they do what they’re told. They say ‘Sorry mate, I’m just doing my job,’ all the f*cking time.”

– Banksy, Banging Your Head Against a Brick Wall, 2001

The word ‘graffiti’ finds no mention anywhere in all the chapters of the Indian Penal Code and neither does the phrase ‘street art’. Then how come four members of Guwahati’s Anga Art Collective were detained by the police on Wednesday, November 19, upon painting a mural of the renowned peasant activist and KMSS-leader Akhil Gogoi, who is currently under arrest?

You are not alone if this question made you curious about the law. As artists from the collective itself asked “Who has the right to the public spaces? Why is there censoring of images in public spaces?”

Seeking an answer to this very question in 2019, I had ventured into three government offices on a warm March afternoon – the Guwahati Municipal Corporation, the Office of the deputy commissioner of Kamrup Metropolitan District and the Latasil police station in Uzanbazar – in the hopes that I’d meet some government officials who could clear my doubts on the subject. I was in the last leg of my MA research project on street art and graffiti as lenses to view politics of Guwahati’s public spaces. My project dealt with themes of spatial politics, street art and neoliberalisation.

So on March 29, I walked into a very busy and labyrinthian GMC building and met two clerks and a peon in the hopes to land a quick meeting with the additional commissioner, which I couldn’t pull off. My first experience taught me something about the term ‘graffiti’ itself. I learnt that I had to replace it with ‘wall art’, after which the peon brought me up to date with his version of the law which, as I later found out, was wrong.

In order to paint on any wall, he said, one must seek permission from the deputy commissioner. It is the Guwahati Metropolitan Development Authority which looks after the regulation of the streets since the Smart City project was launched in 2015 by the Union government. Since 2016, walls and spaces were allotted through tenders to advertisers, for this tax is paid by the GMC. Any wall painting project too would be funded by the GMC, I was told, but only after the artists get the required permissions.

However, the GMDA does not state any such requirement in any of its acts, by-laws or notifications.

Nevertheless, what about the paintings which were done without permission?

Also read: How Indian Cities are Squeezing the People out of Public Spaces

Ambiguities in the law

There is no single law applicable widely through the Indian Penal Code as far as the defacement of property is concerned. Defacement laws are articulated by state governments and do not have a centralised ambit like the IPC.

In the year 2006, the governor of Guwahati passed the Guwahati Prevention of Defacement of Property Act (Government of Assam, 2007), which is to be followed by the GMC and the GMDA. There are four key pointers from this act which pertain to our concerns:

1. The act provides for the “prevention of defacement of property or place which is open to public view”. Please note that ‘public view’ is not the same as ‘public property’. The act further notes that a ‘place open to public view’ can also include private property. Does this mean that those portions of a property which are not visible to the public eye are avenues open for ‘defacement’?
2. The act does not delineate what it means by ‘private property’. It does not mention the phrase ‘public property’, nor does it say anything about property owned by the government. In addition to this, it does not cite or draw upon any definitions of public property from any other legislative gazette or constitutional code.
3. It does not delineate graffiti or illicit art specifically as a category of offence. It defines the word ‘writing’ which includes “decoration, lettering, ornamentation, drawing caricature and other modes […] words or figures in visible form.” The ambiguity here lies in that not everything is ‘written’ in nature. There are images which represent something, just as there are word-images or typographic artworks.
4. Finally, it describes defacement as that which includes “impairing or interfering with the appearance of beauty […]” Beauty is an ambiguous term as there is no inherent meaning in the word. To understand this, take the colour blue, for instance. Blue is not called blue because in essence, we know what ‘blue’ is. We know that a colour is blue because we differentiate it from the colour ‘red’. Neither of these two colours have inherent or essential characteristics which make it possible to label them as blue or red. This was proposed by Swiss linguist Ferdinand De Saussure in his 1916 work Course in General Linguistics, where he argued that words or signifiers are psychological and not real in nature, and they work in relation with differences between other signifiers. In much the same way, ‘beautiful’ is made out to be, not something inherently present in an object or subject. Even if the 2006 act had detailed out what is meant by ‘beauty’ and articulated a standard, it does not recommend or instruct a committee which would monitor whether such standards are being followed or not.

With many incomplete definitions and contradictions in the legal framing of the act, it still categorises defacement related offences as ‘cognizable’, and these are punishable with a fine which falls anywhere between Rs 2,000 to Rs 5,000.

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On the other hand, it should be noted that defacement of property is different from the destruction of public property according to the legal frameworks in the IPC. Looking up the IPC for the word ‘vandalism’ leads one to definitions illustrated under the bracket of ‘mischief’ through Sections 425 to 440 (Ministry of Home Affairs, 1984), and they do not share any characteristics with the act of defacement. The farthest extent to which ‘mischief’ in the 1984 act on the destruction of property is detailed, it means to cause destruction by fire or explosive substance to property – an activity which is far removed from the nature of graffiti and street art. By comparison with the UK, for instance, ‘graffiti’ falls under the category of criminal damage as per the Criminal Damage Act of 1971 and punishments can range up to 10 years of imprisonment.

Graffiti has an ambiguous status as art and damage both in most parts of the world, just like in Assam, where it has an ambiguous and informal status of art or offence. This is perhaps because, at their best, these art forms are not recognised as modes of offence by law or its branches, and at their worst, their offensiveness is decided as per the discretion of the surveillance body monitoring the content of these public artworks, often guided by the political atmosphere of the region.

The subject of Anga Art Collective’s mural was Akhil Gogoi who was put under arrest for allegedly inciting riots during the anti-CAA and NRC protests, and as one senior police official told The Northeast Today in its report on the detainment, this particular graffiti piece had shown the police force in a “derogatory manner”.

Content, offence and permissibility

By early evening, I was at the Office of DC adjacent to the GMC building. “The law is not accorded here,” an Additional Deputy Commissioner (ADC) at the office said. He said that wall art without permission was illicit, but it really depended on the nature of the complaint. I figured that perhaps then, legitimacy of the graffiti in question must depend on the nature and stature or status of the complainant as well.

In The Northeast Today report, the senior police official calls the piece ‘derogatory’ and goes on to tell PTI, “… nobody can deface public property by painting on it. If one wants to use the public property, then necessary permission is required.” The ADC added that it was the GMC which dealt which issues of wall painting, contrary to what the concerned peon had told me an hour before.

Unlike Delhi which has a body which deals with public art (particularly street art, the Delhi Urban Art Commission), Guwahati lacked in law. How could he explain whitewashing of some graffiti and not others, then? Anything which caused adverse publicity was not allowed, he told me. This could have meant several things. Did he mean defamation? “Propaganda, messages of social stigmas, anything which is not acceptable should be condemned,” he clarified while adding that there was no monitoring body or bureaucratic process ‘like in the UK’ which formally decided what was allowed or what wasn’t.

Also read: Artists in Jamia Gather to Disturb the ‘Comfortable’, Paint the Streets With Colour

As we walked out from his office into the hallway, he also added that unpermitted wall writings were non-cognizable offences. However, he pointed out that if the police identify someone doing unpermitted art or writing on the walls, they “usually seize their properties like the paint and brushes etc,” and that this was especially common during the election season as the model code of conduct was enforced.

In the absence of a monitoring body, how could one decide what was socially acceptable and what wasn’t – for instance, which wall would the GMC whitewash and which would it ignore? He smiled at me as if my question was rhetorical, “That is common sense. If you stand naked on the road, someone will come and hold you responsible for it. What is acceptable in Europe is not acceptable here.”

My stopover at the Latasil Police Station opposite the Guwahati high court in the evening, and a chance meeting with Upen Kalita, inspector-in-charge of the area only affirmed what ADC had just said. Graffiti, as I found again, was a word which did not exist in the state lexicon yet. “Wall painting has a message,” Upen Kalita said, “…and if the message is offensive, pakad lega [we’ll catch you]. Normal is nothing. Sabka mann bailaik-bailaik hobo [Everyone has a different mentality].”

The inspector, who’s currently stationed in the Jalukbari division said that the police do get involved during the enforcement period of the model code of conduct, but it never takes suo moto action in such cases, and that no one had ever been caught for such an offence in Assam at least. He went on to say, “When ULFA came, there was a lot of postering (poster sticking) which took place – against the sovereignty of India – tab to hoga, we caught hold of them [then it was obvious, we caught hold of them]. Any painting which lead to crime…which is harming peace & tranquillity of the nation, if it is undemocratic…”

This reminded me of something which Zeng – one of my respondents from Guwahati’s street art duo Inkzen crew – had said to me while distinguishing between a range of public art forms, “Graffiti can be anything. If you are protesting something, then you’d prefer graffiti.” “Documentation is important,” he went on, “…you never know, they’ll whitewash it the next day. But you gotta keep on doing it.”

In November 2020, Anga Art Collective said the same, albeit with a take less reconcilable with the ambiguity of police action and law, and more concerned with the democratic nature of public spaces instead, “Public spaces are for public, for depicting public’s concerns, worries and dreams. This reality has already been well-documented in the news footages, mobile camera videos and reports etc. Do we contradict anything, that should offend anyone? Why is this uncalled-for haste to do away with a painting?”

Also known as Lal Poster, Gulal Salil is a graphic designer, artist and social anthropology graduate from TISS Guwahati. They took up street art culture and neoliberalisation as a subject of their Masters’ dissertation, which was titled “Without Permission: Urban art as a response to neoliberalisation of Guwahati city spaces” and tweets @lalposter.