All India Lawyers’ Association for Justice (AILAJ) expresses deep concern and dismay at the continued incarceration and denial of bail to Munawar Faruqui who was arrested on 2 January, 2021 along with five others in Indore and strongly condemns the same. Based on the claim of a vigilante group Hind Rakshak Sangathan (HRS), Munawar Faruqui and others have been accused of hurting the religious sentiments of the Hindu community and for uttering jokes about the sitting Home Minister ina case registered at Tukoganj police station, Indore under Sections 295A, 298, 269, 188 and 34 of the Indian Penal Code. Faruqui was to perform at Café Munroe, Indore at a New Year event when members of the HRS posing as audience heckled the programme. Two bail pleas by Faruqui and another accused person have been rejected whereas Madhya Pradesh High Court had passed extremely shocking remarks before reserving its judgment on the third bail application on 25 January, 2021. Justice Rohit Arya had already remarked about the accused that “such people should not be spared”, which tantamount to presumption of guilt on the part of the comedian, and it goes against the most basic tenets of criminal legal jurisprudence.
It is observed that the Hon’ble Chief Justice of the Madhya Pradesh High Court was also approached by way of a letter petition by a member of civil society seeking an intervention to assign the hearing of the bail application to another bench, but in vain. This pattern of muzzling the voices of dissent and satire is constant by design and galore. Predictably the High Court on 28.01.2021 proceeded to reject the bail
application of Munawar Faruqui and other accused persons in the case. The signs of prejudice were apparent against the accused, and nothing was done to restore the public faith as regards fairness in the matter. The situation is more alarming because the order of the High Court suffers from manifestly erroneous understanding of the law on bail itself. The order neither demonstrates any prima facie case against the accused whatsoever, nor does it recognize the right of citizens under Article 19 of the Constitution of India; rather it seems to proceed to provide precedence to Article 51A(e) and (f)of the Constitution to tailor a certain outcome. Arresting a comedian for speech meant to entertain is an attack on the fundamental right to speech and expression guaranteed by Article 19 of the Constitution of India. Multiple court judgements (including the Constitution bench judgment titled Ramji Lal Modi v State of UP, 1957) have stipulated that restrictions to speech by invoking of Section 295-A of the Indian Penal Code (outraging religious feelings of any class by insulting its religion or religious beliefs) requires proof of ‘intent’ that is calculated to create public disorder.
It is pointed out that in this case, not only can the intent not be inferred from a small programme which was organized for voluntary attendees by purchase of tickets, the alleged crime of objectionable speech has itself not taken place as the show was curtailed even before he began his act. The Indore East Superintendent of Police has been reported to state that the complainant had ‘overheard’ the objectionable jokes during rehearsal. The order of the High Court relied on the materials of video evidence seized by the police while deliberately refraining from any observation about the contents within such materials. The Station House Office of the concerned police station has gone on record to state that the police checked the video evidence and concluded
that nothing incriminating was even found in the same. It is abundantly clear the order of the High Court has deliberately refrained from making any observation about the content of such video evidence seized. Hence, there is absolutely no prima facie case against the said comedian or any other accused persons.
The recent Supreme Court judgement granting interim bail to journalist Mr. Arnab Goswami in a suicide abetment case also reiterated the ‘bail not jail’ principle that is to be followed in all but the most heinous of offences, which was not at all the case in the instant matter. The approach of the state has been extremely selective with an intention to target the liberal voices in order to suppress them and it is most unfortunate that the judiciary is failing to recognize and effectively prevent such attempts. The denial of bail on the grounds that it may cause ‘law and order’ problems calls into serious question the role of the police and judiciary in pandering to the Hindu vigilante groups who have been active on social media and otherwise, targeting journalists and comedians. AILAJ has in the past pointed to the systematic criminalization and incarceration of Muslims, Dalits and the voices in general challenging the excesses by the State through misuse of criminal prosecution and this case is just another example of the same.
AILAJ once again expresses serious concern and unequivocally condemns the targeted harassment of Munawar Faruqui and others like him, and calls for their immediate release on bail as is their right. Further, we urge the judiciary to quash all charges against them and restore the public faith in judiciary as the great custodian of the fundamental rights guaranteed to the citizens by the constitution of this country.