On 2nd February 2019, 49-year-old BJP worker was arrested by the Chitlapakkam police in Chennai for using social media to allegedly propagate “hate”. Kalyanasundaram Rangaswamy had alleged written a Facebook post that offended the sensibility of Muslims. It was learnt that he had opined on Prophet Muhammad and inspired the ire of the Indian Penal Code. As he landed in Chennai from Ahmedabad, Cyber sleuths apprehended him for questioning and he was later produced in court where he was remanded in Judicial custody.
The post in question was written in 2015. This case was interesting because it was Chitlapakkam sub-inspector D Selvamani who had ‘taken note’ of this post and alerted his seniors.
“I did a search on him on Facebook and found the derogatory comments, which I brought to the notice of my superiors, who asked me to be the complainant in the case,“ Selvamani told TOI.
Meanwhile, MMK leader M H Jawahirullah said that Rangasamy was arrested following his complaint to the police commissioner on December 30.
While Selvamani and MMK leader M H Jawahirullah fought for credit over whose ‘activism’ got Rangaswamy arrested, for a Facebook post, the BJP worker languished in prison.
The case against him was that his comment on Prophet Muhammad would result in enmity on the ground of religion and would cause disharmony, hatred and ill-will between different religions.
On 21st February 2019, after languishing in captivity for almost 19 days, Rangaswamy made bail. The comments of his counsel and the observation of the Court that granted him bail was rather significant in an age where Freedom of Expression is curbed often when the minority sensibility is offended, which is often.
Rangaswamy’s lawyer submitted to the court that the BJP worker had not made any defamatory or slanderous comments against Prophet Muhammad per se. His post was about reading history and giving his opinion and understanding of Prophet Muhammad and his family. He argued that Rangaswamy’s right to do so is protected under Freedom of Expression granted by the Constitution of India.
The prosecutor in the case mentioned that the BJP worker is a repeat offender and earlier too, he had been granted bail on the condition that he will not indulge in such activities again. The prosecutor also mentioned that he is ‘continuously indulging in such activities’ thereby endangering harmony between religions. The prosecution had vehemently contested bail.
The advocate who had appeared for Rangaswamy relied on the observations made during the case Tamilsevan vs Government of Tamil Nadu. The judgement in the Tamilsevan case had laid down the following guidelines:
- There is bound to be a presumption in favour of free speech and expression as envisaged under Article 19(1)(a) of the Constitution of India unless a court of law finds it otherwise as falling within the domain of a reasonable restriction under Article 19(2) of the Constitution of India. This presumption must be kept in mind if there are complaints against publications, art, drama, film, song, poem, cartoons or any other creative expressions.
- The State’s responsibility to maintain law and order would not permit any compulsion on the artists concerned to withdraw from his/her stand and non- State players cannot be allowed to determine what is permissible and what is not.
- It is high time the Government constitutes an expert body to deal with situations arising from such conflicts of views, such expert body to consist of qualified persons in the branch of creative literature and art so that an independent opinion is forthcoming, keeping in mind the law evolved by the judiciary. Such an expert body or panel of experts would obviate the kind of situations we have seen in the present case. In such matters of art and culture, the issue cannot be left to the police authorities or the local administration alone, especially when there is a spurt in such conflicts.
- The State has to ensure proper police protection where such authors and artists come under attack from a section of the society.
Essentially, the Tamilsevan judgement said that there is a bound presumption that Freedom of Expression would prevail over every other concern unless it can be demonstrated that the speech falls under reasonable restriction. It also says that maintaining law and order is the State’s concern and that concern does not compulsorily mean that the artist would have to withdraw his stand on issues.
This landmark judgement was relied upon heavily by the advocate representing Rangaswamy. He said (emphasis ours):
“The freedom of expression always gets challenged when it touches upon religious beliefs. There were occasions when similar such articles have been written questioning the history of Jesus Christ in the book of the ‘Da Vinci Code’. Even in this state, there are articles return touching upon the life of Sita in Ramayana. It is one thing to make reckless and derogatory remarks against religious beliefs and it is entirely another thing to express the opinion after reading the entire literature/history of various characters were revered as god or goddess in the society. Not every expression will qualify itself to bring disharmony between various sects or groups and this have been clearly brought out by this Court in the judgement in S. Tamil Selvan referred Supra. This court has category held that there is always a presumption in favour of free speech and expression unless it falls within the domain of reasonable restrictions under Article 19(2) of the Constitution of India.”
Senior advocate Prabakaran appearing for Rangaswamy almost broke the glass ceiling in his argument, so to speak. It has been a long-held contention that criticism of minority communities and their respective religions, be it Islam or Christianity has usually inspired the ire of the state, whereas, criticism to Hinduism has been an acceptable form of free speech. The “liberal” argument in this regard is that the people who point towards this dichotomy wish to “Radicalise Hinduism” where the tolerant religion becomes intolerant to criticism. Nothing, however, could be further from the truth.
The contention of the ones who point out this dichotomy between the treatment given to critics of Islam and Christianity as opposed to the critics of Hinduism is not based on the fact they condone or want the criticism of Hinduism to be penalised. The contention simply stems from the fact that Freedom of Expression as enshrined in the Constitution of India has to function based on the principle of equality in front of the law. Criticism for one religion cannot be considered blasphemy while criticism for another, be considered revolutionary.
Senior counsel, by making that equivalence, upheld the very foundation of equality that most non-left thought leaders have been fighting for. What is good for the geese, must be held good for the gander.
The Court agreed with the submissions of senior counsel and granted Rangaswamy bail. The court held that Rangaswamy opined on Prophet Muhammad and his family after reading relevant history and no outright derogatory or slanderous comments were made.
What might appear to be a small step in the law can perhaps prove to be a massive step towards equality in freedom of expression for all future cases pertaining to ‘blasphemy’.