Courts’ Denial of Bail to Munawar Faruqui is a Travesty of Justice

Freedom of expression and legal precedents on Section 295A, ‘bail not jail’, have been ignored to keep him in jail.

Faruqui, was denied bail by chief judicial magistrate (CJM) Aman Singh Bhuria.

(Photo: Aroop Mishra/The Quint)

Munawar Faruqui – or Munawar bhai as many of his fans fondly refer to him – is a comedian. Naturally, therefore, through the course of his career he has offended a lot of people.

Unfortunately, even in today’s day and age, offending the wrong people can leave a comedian languishing in jail, as Faruqui and his associates have found out.

Arrested on 2 January in Indore after his show was interrupted by BJP MLA Malini Gaur’s son Eklavya Singh Gaur, Faruqui’s requests for bail have been rejected by the local Chief Judicial Magistrate and the Additional District and Sessions court.

He moved a plea in the Madhya Pradesh High Court which came up for hearing on Friday, 15 January, but after the Indore Police failed to produce the right documents, the case was adjourned by the high court for a week.

The case has generated controversy over the basic premise of it all – arresting a comedian for telling jokes – which strikes a blow at the right to freedom of speech and expression.

But even for those who don’t see anything wrong with the arrest of Faruqui, the continued detention of him and his associates should be a matter of serious concern, because of how it plays fast and loose with the law on bail, setting all the wrong kinds of precedent.

Here’s why.

The Sessions Judge’s ‘Reasons’ for Denying Bail

Rejecting Faruqui’s plea for bail on 5 January, the Session Judge noted that the allegations against him and his friend Nalin where that they hurt sentiments of followers of the Hindu religion, made obscene comments against Hindu gods and goddesses, and made obscene comments “in the presence of mothers, sisters and children”.

The judge then says:

“The charge against the accused persons is of attempting to instigate social tensions.  Grant of bail to the accused may give rise to the possibility of law and order issues. On the basis of the aforesaid facts no good grounds are made out for grant of bail to the accused Nalin and Munawwar.” (emphasis added)

But does this make sense under the law?

Should There Have Even Been an Arrest?

Here are the sections of the Indian Penal Code (IPC) under which the FIR was filed against the comedian and his associates:

The key point to note here, none of the offences under which Farooqui and his associates have been charged, even the lead offence under Section 295A, are punishable by more than three years.

Therefore, none of these offences can be dubbed ‘heinous’ – a term used for offences where the maximum punishment is 7 years or more.

This is important, because in 1994, the Supreme Court advocated restraint and advised against arbitrary arrests in offences that were, prima facie, not heinous:

“No arrest can be made in a routine manner on a mere allegation of commission of an offence made against a person. It would be prudent for a police officer in the interest of protection of the constitutional rights of a citizen and perhaps in his own interest that no arrest should be made without a reasonable satisfaction reached after some investigation as to the genuineness and bona fides of a complaint and a reasonable belief both as to the person‟s complicity and even so as to the need to effect arrest. Denying a person of his liberty is a serious matter… Except in heinous offences, an arrest must be avoided if a police officer issues notice to person to attend the Station House and not to leave the Station without permission would do.”   

The apex court reiterated these words in a 2018 judgement, where it was considering the police’s power to make arrests without a warrant (as was the case with Faruqui). The Supreme Court didn’t just blame the police for misuse of this power, they also condemned the failure of magistrates to check the misuse.

The first problem with the court orders rejecting Munawar Faruqui’s bail is therefore that the judges didn’t even question the need to arrest him in the first place.

The Requirement of Intent for Section 295A of the IPC

As mentioned earlier, the primary offence that Faruqui has been booked under is Section 295A of the IPC. There are two elements to this offence:

1. Deliberate and malicious acts which insult a religion or religious beliefs;
2. Intention to outrage religious feelings of people belonging to that religion.

The intent requirement is absolutely crucial to any accusation that a person has committed this offence.

In 2017, former Indian Cricket Captain MS Dhoni had challenged criminal proceedings that had been initiated against him – also under Section 295A – for allegedly hurting religious sentiments, after he was portrayed as “Lord Vishnu“ on the cover of a business magazine.

Coming to his rescue, the Supreme Court had said that it is “clear as crystal that Section 295A does not stipulate everything to be penalised and any and every act would tantamount to insult or attempt to insult the religion or the religious beliefs of class of citizens.”

“It penalises only those acts of insults or those varieties of attempts to insult the religion or religious belief of a class of citizens which are perpetrated with the deliberate and malicious intention of outraging the religious feelings of that class of citizens.”

Supreme Court order in MS Dhoni case

The court confirmed that ‘unwitting’ or ‘careless’ remarks without any deliberate or malicious intention would not fall within Section 295A. This wasn’t some new precedent created just for Dhoni, by the way – this principle had been laid down by the Supreme Court as far back as 1957, in the Ramji Lal Modi case.

This principle is significant, again, because there is nothing mentioned anywhere in the orders rejecting bail for Faruqui which specifies any prima facie material which indicates any such ‘deliberate or malicious intention” to outrage religious feelings on the part of Faruqui or his associates.

Indeed, at no point in the orders or even the FIRs is there any description of what these oh-so- problematic comments by Faruqui and his colleagues were in the first place, which warranted their arrest and detention.

Recent news reports, including those in the Indian Express and digital magazine Article 14, suggest that the Indore Police have even admitted that they have no evidence that Faruqui made any offensive jokes against Hinduism in the show.

The complaint by Eklavya Singh Gaur appears to have been made based on his claims of what he heard in Faruqui’s rehearsal, not the actual event.

Here we have yet another failing of the orders rejecting bail for Faruqui and his associates – there is insufficient material on record from the police to justify any of the ingredients of the offence against him.

The ‘Law and Order’ Problem

These failings by the lower courts in their decisions could perhaps have been ignored if there were some technical grounds to refuse bail to Faruqui and his friends. However, the only ground specified by the court for denial of bail was that “grant of bail to the accused may give rise to the possibility of law and order issues.”

It is unclear how the fundamental right to personal liberty can be sacrificed at the altar of possible “law and order issues”.

In a landmark judgement in 1989 (S Rangarajan Etc vs P Jagjivan Ram), the Supreme Court had lashed out at the Tamil Nadu government for stopping the release of a film out of fear of “very serious” law and order problems across the state, and laid emphasis on the State’s duty to guarantee Fundamental Rights to it’s citizens.

“Freedom of expression which is legitimate and constitutionally protected, cannot be held to ransom, by an intolerant group of people,” the Court said.

“The State cannot plead its inability to handle the hostile audience problem. It is its obligatory duty  to prevent it and protect the freedom of expression.”   

Supreme Court in S Rangarajan Etc vs P Jagjivan Ram.

Further, the Supreme Court, had said: “We must practice tolerance to the views of others. Intolerance is as much dangerous to democracy as to the person himself.”

The apex court took a similar view when it came to the agitations threatened over the more recent release of the film Padmavati, one might recall.

The SC’s Reminder of the Importance of Bail in Arnab’s Case

One might also recall the even more recent judgment of the Supreme Court granting interim bail to Republic editor-in-chief Arnab Goswami in a suicide abetment case, where the court reiterated the “bail not jail” principle that is supposed to be followed in all but the most heinous criminal cases.

“More than four decades ago, in a celebrated judgment in State of Rajasthan, Jaipur vs Balchand, Justice Krishna Iyer pithily reminded us that the basic rule of our criminal justice system is ‘bail, not jail‘. The High Courts and Courts in the district judiciary of India must enforce this principle in practice, and not forego that duty, leaving this Court to intervene at all times.”

Supreme Court in the Arnab Goswami Case   

The Supreme Court in the Arnab Goswami case observed that in denying Goswami bail “the High Court has not considered whether prima facie the ingredients of the offence have been made out in the FIR. If the High Court were to have carried out this exercise, it would (as we have held in this judgment) have been apparent that the ingredients of the offence have not prima facie been established. ”

Justice DY Chandrachud’s judgment specifies that all the courts of the country from the district magistrates to the apex court, have a duty to ensure that criminal law does not become a “selective weapon for harassment of citizens.”

But the Sessions judge order, as described above, fails to perform this duty, by failing to examine whether the allegations against Faruqui are made out, and by rejecting bail without having any valid grounds to do so.

Consequences for Liberty and Freedom of Speech

The consequences of the courts failing to do their job are not something which can be easily forgotten or rectified. As the top court said in Arnab’s case:

“The consequence for those who suffer incarceration are serious. Common citizens without the means or resources to move the High Courts or this Court languish as undertrials. Courts must be alive to the situation as it prevails on the ground – in the jails and police stations where human dignity has no protector.”   

The Sessions Judge in the penultimate paragraph of his order, points out that another FIR had been registered in April 2020, against Munawar Faruqui in Prayagraj, for a YouTube video. However, section 437 (1)(ii) of the Criminal Procedure Code (CrPC) provides that even if there is a previous case, this is not some absolute ground to deny bail.

In fact, the way in which the UP Police have suddenly woken up to that case and are asking the Madhya Pradesh courts to grant them custody of Faruqui nine months from the registration of the FIR, only adds to the impression that the criminal legal system is being weaponised against Faruqui.

This harassment of a person involved in the creative arts is something the courts have warned about before, that it is about more than just the liberty of the accused person. The Delhi High Court in MF Husain’s case, for instance, noted that magistrates should ensure they scrutinise complaints to filter out frivolous and vexatious ones, as if they didn’t:

“The result would be that that apart from the harassment element there would be growing fear and curtailment of the right of the free expression in such creative persons.”

Prolonged incarceration of an artist for his art is impossible without there being a direct attack on freedom of speech and expression.

To what extent should a performer have to pay the price for thin-skinned members of the audience, or should art be sacrificed for political purposes, under vague and arbitrary pretexts?