The law is like a stone. In the hands of a skilled sculptor, it can be a piece of art. Leave it to a rookie mason and it can quickly turn into a death trap. The arc of the legal universe is long, but of late it has bent towards the latter, towards injustice.
Nalin Yadav, Edwin Anthony, Munawar Faruqui and their acquaintances who had organised a stand-up comedy show in Indore are the latest to have borne its brunt. Faruqui is alleged to have made several statements that insulted Rama and Sita in the course of his performance. On the basis of the fact that Faruqui sometimes deals with matters of religion on his shows available online, let us assume this is true. Even if it is, the law is clear that an offence of hurting religious sentiments can only be made out if the person intended to hurt such sentiment.
Further, the intention must be both deliberate and malicious. There is not a shred of reliable evidence that Faruqui intended to offend anyone. His jokes may not often land, something that is true of many budding stand-up comics. Last checked, middling comedy and a Muslim man talking of Hindu gods are not crimes in India’s statutes just yet.
Despite the law being clear, three courts, the magistrate, the sessions court and the high court held otherwise and denied Faruqui bail. Unsurprisingly, his accomplices were also denied bail without any cogent evidence recorded against them. The law on bail is equally clear. As the Supreme Court has repeated ad nauseum, the golden rule is “bail, not jail.” Bail must always be granted unless the accused is a flight risk or a habitual offender. It is apparent from the order of the Madhya Pradesh HC that it plainly ignores the law.
There is no reasoning whatsoever on why investigation in the case required their incarceration – no fear of them fleeing or being able to influence witnesses or a record of prior convictions. Instead, the judge has taken the liberty to educate the reader about fundamental duties of citizens to promote brotherhood, forgetting his own fundamental duty to provide coherent reasons for his judgment.
Directing our ire against the judge in question may be natural, but misplaced. For he is not alone. The annals of judicial history are littered with examples of wrongful denial of bail – George Fernandes in the Baroda Dynamite case, Sanjay Dutt by a TADA court, and most recently Partho Dasgupta in the TRP rating scandal are a few egregious instances over time. At the same time, police proclivity in registering false cases relating to offences against religion is common. NCRB data from 2019 shows that in 2,736 such pending cases, chargesheets were only filed in 907. The conviction rate too was at 37%, much below the average IPC conviction rate of 50.4%.
At some level, such judicial and police indiscretions take place simply because they can. Permanent judges in the HC, secure in their tenures, know that a poor judgment is likely to go unpunished. Incentives for subordinate police officers to do their job competently are misaligned. They are woefully trained, inadequately paid and unscientifically reviewed. In their hands, an exercise of discretion bounded by the law on whether to register a case or not becomes a matter of capricious choosing. Discretion is not the same thing as choice.
But more fundamentally, these choices feed off the extreme vengefulness of our legal system. As a society we remain sanguine when the law allows policemen to imprison a person for flying a kite without a permit. Allegations of rape lead to instant demands for chemical castration of accused persons. Repressive laws of all kinds – most notably sedition and criminal defamation – continue to exist on the statute books.
These laws do not exist in a vacuum – they take their cue from the Constitution. As generous as Article 19(1)(a) is in guaranteeing every citizen the freedom of speech, equally restrictive are the limitations in Article 19(2) authorising several legal constraints on speech. These range from restrictions based on decency and morality to those preserving public order.
The introduction of Article 19(2) in its present form is illuminative of our inherent vengefulness. It is the product of the First Amendment to the Constitution, passed when the Constituent Assembly sitting as the first Parliament was worried by two ‘offensive’ publications, a right-wing English weekly and another left-wing weekly published by a noted communist. Even our founding fathers, having faced the full force of British repression, chose to create a state that privileged public order over fundamental freedoms. Contrary to what we would like to believe, repression is India’s deep state. A brutal form of take-no-prisoners politics in vogue today has only helped such innate repression flourish.
So instead of simply excoriating the policemen who registered a dubious case in Indore and the judges who added insult to injury by denying bail, we ought to turn our gaze inward. Untrammeled by the nobler facets of the law, the officers merely displayed the same vengefulness that underpins the many laws that are enacted in our name.
There is another more basic feature of stone – it is cold and lifeless. This is what has become of laws that guarantee civility, ambushed by our collective vengefulness. One can only hope that the arc of our legal universe is longer still.
Views expressed above are the author’s own.
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