(This article was published on 29 January, 2021 and is being republished from The Quint’s archives in the backdrop of the hearing schedule to take place in the Supreme Court on 5 February.)
On 28 January, the Indore Bench of the Madhya Pradesh High Court denied bail to comedian Munawar Faruqui for allegedly insulting religious sentiments of Hindus. Faruqui has been languishing in jail since 1 January, in a case registered against him by the son of a BJP MLA for allegedly insulting Hindu Gods and the Home Minister Amit Shah.
The court’s order is primarily based on the ‘video footage’ produced by the prosecution and the statements made by witnesses before the police. However, neither of these materials refer to the comic show that took place in Indore. On 15 January, Indore’s Superintendent of Police Vijay Khatri publicly claimed that Faruqui didn’t make jokes on Hindu Gods, or even started his show, when he was arrested by the police. Therefore, there was no evidence to suggest that Faruqui insulted the religious sentiments of Hindus during his set in Indore.
“The video footage they (state) showed was from his earlier shows, as they had no evidence to show any violation of section 295A in Faruqui’s Indore set,” said advocate Anshuman Shrivastava. This is also evident in the statements produced by the police wherein all the witnesses are talking about the jokes cracked in Faruqui’s earlier shows conducted in different parts of the country but not in Indore.
As there was no evidence to nab Faruqui for his Indore show, both the complainant and the state argued the entire bail proceedings on the basis of shows that did not form the basis for his arrest on 1 January. Instead of holding the prosecution accountable for complete lack of evidence to substantiate the allegations made in the FIR, the court relied upon these unrelated videos to form the prima facie view of commission of crime:
“The evidence/material collected so far suggest that in an organised public show under the garb of standup comedy at a public place on commercial lines, prima facie; scurrilous, disparaging utterances, outraging religious feelings of a class of citizens of India with deliberate intendment, were made by the applicant.”
The Indore court not only relied upon events that did not even take place within its jurisdictional limits, but it also shifted the burden of denying such events on the accused. Instead of following a balanced approach of appreciating the arguments made by both sides, the court primarily focused its reasoning on the narrative put forward by the complainant:
“That apart, there is also specific assertion by the learned counsel for the complainant that the applicant along with other co-accused persons allegedly making outraging filthy jokes in social media deliberately against Hindu Gods, Lord Shriram and Goddess Seeta hurting religious sentiments of Hindus for the last 18 months despite, protest on various social media platforms. There is nothing on record to the contrary.”The Indore court
These are the narratives of the complainant who has used terms such as ‘urban naxal’ to describe Faruqui in his complaint, and claims he is an ‘influential person’. He had also claimed that there were massive ‘social media protests’ against Faruqui’s shows without providing any evidence supporting the same. However, the court did not record even a word against usage of such politically motivated phrases in the official discourse before a court of law. Such silence towards vindictive terms and unsubstantiated claims of the complainant raises doubts on the judicial reasoning, bringing the court’s own stance on the usage of such politically motivated terms to question.
Condemnation Without a Trial
What makes the bail order worrisome is not just its substantive deviation from the established principles of bail but also the language used by the court to explain its reasoning. The court has dedicated three paragraphs to Chapter IV of the Constitution, which refers to Fundamental Duties. While describing in bold letters the constitutional provisions that are not legally enforceable before the courts, the court completely overlooked the fundamental right to freedom of speech and expression, which constitutes the basic structure of the Constitution.
Calling out this disproportionate attention to fundamental duties, advocate Vrinda Grover told The Quint that, “Duties cannot be read to shackle the exercise of freedoms and abridge the right to personal liberty.” She reiterated that under our constitutional scheme freedoms and rights are fundamental and can only be subject to reasonable restrictions.
In the last paragraph of the order, the court has appeared to deviate from the issue in hand, to direct the state to ensure that the fundamental duties are adequately complied with:
“States must endeavour that ecosystem and sustenance of coexistence in our welfare is not polluted by negative forces and must strive for achievement of goals as enshrined under Article 51A(e) and (f) of the Constitution of India in particular, as these provisions are part of our vibrant Constitution and not dead letters.”
According to Grover, this approach is extremely concerning especially in the light of the language used by the court. She believes that the High Court has cited Fundamental Duties of a citizen in order to suggest that the applicant is a ‘negative force’ in society and that the state must strive to ensure that a comedian does not ‘pollute’ the society. While noting that the court’s order ‘has traversed into a realm of adjudication, which is beyond the scope of a bail hearing’, Grover contends that the ‘tripod test’ – flight risk, tampering with evidence, and influencing the witnesses – was not considered while determining the bail application.
The words used by the court in defending its reasoning makes one question as to whether Faruqui has been denied relief as per law, or penalised for his thoughts. Senior advocate Sanjay Hegde finds much substance in the latter possibility. Talking to The Quint, Mr Hegde said Faruqui has been denied bail for a ‘thoughtcrime’, a joke that he did not crack but was allegedly overheard rehearsing. The language of the order and the reasoning it stands upon, reminded Mr Hegde of George Orwell’s famous quote: ‘All animals are equal but some animals are more equal than others’.
Advocate Anshuman Shrivastava, Faruqui’s lawyer in the present matter, also believes that the court invisibilised the accused’s narrative while deciding upon his bail application. He feels that the court ignored the merits of the case and the ingredients of the offence under section 295A of IPC, while denying relief to Faruqui. In an interview with The Quint, he said:
“There is no evidence to suggest that he (Faruqui) had deliberate intention of hurting the religious sentiments or causing religious disharmony. Even the videos from his earlier shows clearly suggest that the comments were made as part of a comic sketch and in front of an audience that voluntarily participated in that set. There is no evidence to suggest intentional incitement of communal disharmony.”Advocate Anshuman Shrivastava
The Madhya Pradesh High Court’s order denying bail to Munawar Faruqui has reignited the debate on controversial adjudication on bail matters. The grant of bail is surely a judicial discretion, but the same has to be exercised as per the established principles of law. These principles, established through multiple judgments of both the Supreme Court and the various high courts, clearly indicate that the bail is the norm and jail is the exception.
The grant of bail is extremely important not just ensuring the right to personal liberty of an accused, but also to grant him adequate opportunity to prepare his defence. Instead of focusing on these principles, the court has passed a commentary on the merits of the case. Keeping Faruqui in jail for jokes he didn’t even crack, shows the value of personal liberty and freedom of speech in the eyes of the Bench that denying him bail for an offence which is punishable with just three years of imprisonment.
(Karan Tripathi is a legal journalist and a researcher in the field of criminal justice. He tweets @TripathiGee. This is an opinion piece and the views expressed are the author’s own. The Quint neither endorses nor is responsible for them.)