New Delhi: Police authorities need to be sensitive while dealing with matters under Section 295A of the Indian Penal Code, which criminalises deliberate and malicious acts intended to outrage religious feelings of any class, the Goa bench of the Bombay High Court Friday observed.
The bench added that the police should also not rush to register FIRs under the provision unless the complaint discloses ingredients required to invoke it.
The observations come on the backdrop of a mounting debate against the misuse of Section 295A, especially in light of the criminal proceedings initiated against stand-up comic Munawar Faruqui and four others. Faruqui was under arrest for over a month for allegedly making indecent remarks about Hindu deities.
The HC bench, comprising Justices M.S. Sonak and M.S. Jawalkar, was hearing a petition by art-rock band, Dastaan LIVE, who were accused of hurting sentiments for performing a rendition of ‘Mantra Kavita’. The poem was originally composed in 1969 by Vaidyanath Misra, widely known as Baba Nagarjuna, a poet of the 1960s and 70s and winner of the Sahitya Akademi Award.
However, the court quashed the criminal proceedings against the band and noted that “this was an unwarranted assault on creativity and freedom of speech and expression itself”.
The court further said, “The Police authorities are expected to be quite sensitive in such matters, because, what is at stake is the freedom of speech and expression. Therefore, unless the complaint discloses the ingredients of the offense under section 295-A of IPC, it is not expected of the Police authorities to rush and register an FIR in such cases.”
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‘A case of abuse of criminal process’
The petitioners — Sudheer Rikhari, Nikhil Vasudevan, Subhanshu Singh, Anirban Ghosh, Sumant Balkrishnan, Jagtinder Singh, Varun Gupta, Shiva Pathak and Nirmala Ravindran — are members of the art-rock live performance project known as “Dastaan LIVE”.
The band claims to be influenced by several poets and writers including Faiz Ahmed Faiz, Baba Nagarjuna, Sahir Ludhianvi and Nazeer Akbarabadi.
On 17 December 2019, they performed a setlist of eight songs live, which included the Mantra Kavita, at the Serendipity Arts Festival in Goa.
However, one K. Venkar Krishna filed a complaint against them the next day, under Sections 295A, alleging that the lyrics had hurt the sentiments of “hundred crores of India and few million abroad”.
Four of them — Ghosh, Balkrishnan, Pathak and Ravindran — were called to the police station on 18 December 2019 to “issue an apology”, but were arrested after they refused.
The petitioners then approached the high court, demanding that the FIR against them be quashed.
The public prosecutor had challenged the petition by stating that the word ‘Om‘ is sacred to the Hindus and if the word is clubbed with words or phrases like “Ullu ka pattha”, it amounts to insulting religion and religious beliefs.
In its judgment, however, the court noted that the petitioners merely presented a musical adaptation of Mantra Kavita, without tampering with its lyrics.
Furthermore, the bench noted that Krishna had not even supplied the full extract of the composition to the police authorities and had made vague allegations “by interpreting the same or rather misinterpreting the same”.
“Even the Police authorities registered the FIR, literally the minute the same was lodged, perhaps, without even bothering to either read the complaint or the provisions of section 295-A of the IPC,” the bench pointed out.
The court said that there was “no justification” for arresting some of the petitioners, and asserted that “police authorities cannot call citizens to the Police Station and demand apologies of this nature”.
It also referred to the lyrics of Mantra Kavita and observed, “To simply allege that ‘OM’ which is a symbol of the complainant’s faith ‘in negative narrative’ or ‘abusing people chanting the OM and followers to Hindu stream as ‘Ullu ke Patta’ is by no means sufficient to spell out the ingredients of Section 295-A of the IPC. ”
It said that the basic ingredients to invoke Section 295A “are totally missing” and that “this is a case where the criminal process has been abused…by registering the FIR based on a vague complaint”.
(Edited by Rachel John)
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