Munawar Faruqui Bail Order: Whose Liberty is it Anyway?

A comedian has been in jail for four weeks now—for a joke, he probably never cracked. His bail has been denied thrice on grounds that defy all conventional bail jurisprudence. The Madhya Pradesh High Court concluded its order with a beautiful remark about India setting an example of "coexistence amid diversities". Except, Munawar Faruqui's case betrays a different reality, says PARTH MANIKTALA.

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The Indore bench of the Madhya Pradesh High Court has rejected the bail application of comedian Munawar Faruqui. The decision is not surprising.  While reserving orders on the bail application, Justice Rohit Arya had already made a profound declaration, "Such people must not be spared."

On 1 January 2021, Faruqui was arrested, along with four others, for "indecent" and "vulgar" jokes about Hindu gods. The complainant was Eklavya Singh Gaud, son of a BJP legislator and convenor of the Hindu Rakshak Sangathan. On 3 January 2021, the Police acknowledged that they have no video evidence of Faruqui insulting Hindu gods. Speaking to Article 14, Superintendent of Police, Vijay Khatri, confirmed that Faruqui made no offensive jokes. The police had only received "oral evidence" that he was "going to" crack such jokes. However, the investigating officer claims to have seized the "clippings of the incident cutting jokes hurting religious sentiments of Hindu Gods".

BAIL CONVENTIONS

The Supreme Court has repeatedly held that bail is the rule, and jail is the exception. Our criminal jurisprudence operates on the presumption of innocence and imprisonment before a conviction is a significant erosion of the right to liberty secured by Article 21 of the Constitution.

Over the decades, the Supreme Court has laid down broad criteria that must guide the question of bail in the case of "non-bailable" offences. These include, among others, the existence of a prima facie case against the accused, the gravity of the offence, the nature of the evidence in support of the accusation, the danger of the accused absconding, the danger of witnesses being tampered with, and the protracted nature of the trial.

However, in Faruqui's case, the Court seems to have overlooked most of these criteria. The rejection of his bail application is based on concerns that are either wholly irrelevant or acutely under-analysed.

FUNDAMENTAL DUTIES

In a remarkable departure from established bail jurisprudence, the Madhya Pradesh High Court relied on fundamental duties, to counterbalance fundamental rights. To rebut Faruqui's claim of freedom of speech, the court asserted that "liberty of an individual has to be balanced with his duties and obligations towards his fellow citizens".

The court's rationale turns the constitutional scheme on its head. Non-enforceable fundamental duties are used as grounds to efface concrete rights secured by Articles 19(1)(a) and 21 of the Constitution. Admittedly, the Supreme Court has used fundamental duties as interpretive guides that inform the content of fundamental rights. However, it would be a stretch to apply fundamental duties in a manner that strikes at the very heart of fundamental rights.

Fundamental duties, of course, are a significant part of the constitutional framework, and can help achieve a more inclusive and just society. However, at the same time, we must be wary of an approach that seeks to curb fundamental rights under the communitarian garb of fundamental duties.

As Samuel Moyn argues, the "rhetoric of duties has often been deployed euphemistically by those whose true purpose is a return to tradition won by limiting the rights of others".

The Madhya Pradesh High Court would do well to remember, Dr BR Ambedkar's words in the Constituent Assembly, that the fundamental unit of the Constitution remains the individual. By prioritising fundamental duties towards society above an individual's core rights of speech and liberty, the High Court undermines the most foundational premise of our constitutional structure.

PRIMA FACIE CASE

An important issue to consider in an application for bail is whether there is reasonable ground to believe that the accused had committed the offence. The present bail order focused on the charge under section 295A of the IPC, since all the other charges (sections 298, 269 and 188/34 IPC) were bailable.

The offence under section 295A relates to outraging the religious feelings of any class of citizens. The counsel for the complainant referred to Faruqui and his "associates" as "'urban naxals' hurting the religious feelings of Hindus under the garb of freedom of speech and expression".

In response, the counsel for Faruqui relied on Mahendra Singh Dhoni v Yerraguntla Shyamsundar and another, where the Supreme Court held that every act of insult to religion offered unwittingly or carelessly or without any deliberate or malicious intention to outrage the religious feelings of that class will not fall in the domain of section 295A.

The Madhya Pradesh High Court acknowledged the same, categorically stating that the prosecution is "required to establish that the intention of the accused to outrage religious feelings was malicious, deliberate and directed to a class of persons and not merely to an individual". However, the court failed to apply the legal position even after correctly identifying it.

On the subject of the prima facie case, the court simply concluded, "The evidence/material collected so far, suggest that… prima facie; scurrilous, disparaging utterances, outraging religious feelings of a class of citizens of India with deliberate intendment, were made by the applicant."

It failed to explain how the twin requirement of the intent being "malicious, deliberate" is satisfied in the case. Rather, it simply held that Faruqui had acted with "deliberate intendment" and entirely overlooked the criterion of "malice". At the cost of repetition, it must be noted that a court is required to reach the prima facie finding that the act is both deliberate and malicious, i.e., deliberately malicious. In the absence of such a finding, no prima facie case could be sustained against Faruqui, and the denial of bail can be regarded as erroneous.

NATURE OF EVIDENCE

In a bail application, it is crucial for the court to examine the nature of the evidence in support of the accusation. In the present case, the Madhya Pradesh High Court relied on the statements of the complainant and witnesses, the case diary, and the seized video footage of the show. However, there are notable inadequacies in the court's reliance on such evidence.

The court gave significant weight to the statements of witnesses recorded under section 161 CrPC. However, a statement recorded by the police during the investigation is neither given on oath nor tested by cross-examination. According to the law of evidence, such a statement is not evidence of the facts stated therein and therefore is not considered substantive evidence.

At any rate, there is another concern with the statements recorded under section 161 of this CrPC in this case. The court referred to the statements of Eklavya Singh Gaud (complainant), and Kunal, Shubehndra and Palash (the witnesses). Curiously, the statements of Eklavya, Kunal, and Shubehndra are verbatim copies of each other, barring the first line of Eklavya's statement. Admittedly, the three statements describe the same event and, therefore, there is bound to be similarity in their descriptions. However, for the statements to be word-for-word copies of one another raises concern over their credibility.

In addition, the statement of Palash makes no reference to Faruqui. His statement describes the jokes cracked by Nalin Yadav, a co-accused in the case. The jokes described in Palash's statement do not refer to religion and clearly fall outside the purview of section 295A.

It is also telling that the court referred to no other witness statements except these four. From their statements, it is evident that they had gone to watch the show together and knew each other from before.

Article 14 spoke to certain members of the audience who claimed that Faruqui had made no reference to religion in his act. However, the Madhya Pradesh High Court's bail order does not refer to any witnesses besides the complainant and those acquainted to him.

Furthermore, the court relied on the case diary and video footage of the show. Except, nowhere in the order did the court mention what this evidence contains. To rely on such evidence, without discussing any aspect of its content, appears untenable.

GRAVITY OF OFFENCE

While referring to factors that militate against the granting of bail, the Madhya Pradesh High Court alluded to the "intensity of crime". This, undeniably, is a criterion that courts are required to take into account. However, the intensity of the charge is not sufficient by itself. Dealing with the case of a murder accused, the Supreme Court has held, "The offence alleged no doubt is grave and serious and there are several criminal cases pending against the accused. These factors by themselves cannot be the basis for refusal of prayer for bail."

At any rate, the High Court did not even reach the finding that the offence under section 295A is a grave offence so as to merit denial of bail. One of the circumstances to consider the gravity of the offence is the term of the sentence prescribed for it. The punishment under section 295A is imprisonment for a term that may extend to three years. This does not appear to fall within the category of severe sentences. The Supreme Court has held in Gurcharan Singh that the court will "not decline to grant bail to a person who is not accused of an offence punishable with death or imprisonment for life".

Admittedly, the offence under section 295A of the IPC is grave from a social point of view. There is bound to be societal resistance against granting bail to an individual accused of insulting religious feelings. However, that too cannot be a sufficient justification to deny them bail. The Supreme Court has categorically declared that the "right to bail is not to be denied merely because of the sentiments of the community against the accused".

It is settled law that the object of bail is neither punitive nor preventative. Rather, its primary purpose is to secure the attendance of the accused at the trial. Nonetheless, the Madhya Pradesh High Court's order barely addresses this primary objective. The court failed to examine the main issues of the accused either interfering with the investigation or absconding. Rather, it invoked "fundamental duties" and "the spirit of common brotherhood" as justifications to deny bail.

(Parth Maniktala is a final year law student at the Faculty of Law, University of Delhi. The views are personal.)