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‘Having an opinion on Prophet Muhammad is not derogatory, FoE is not blasphemy’: Madras HC’s historic verdict from 2019

Recently, BJP spokesperson Nupur Sharma was at the receiving end of Islamist ire, receiving multiple death threats for her family and herself for expressing her views on Prophet Muhammad and Islam during a prime time debate.

History has it that any type of depiction of the Prophet Muhammad has always drawn fierce pushback from Islamists around the world. Over the years, there have been innumerable incidents of extreme violence with Islamists calling for the beheading of those responsible for committing such an ‘effrontery’. With the passage of time, such intolerance has only gotten worse.

This is what led to Islamists baying for the blood of the Hindu Mahasabha leader Kamlesh Tiwari, whose throat was slit in the most barbaric manner. It was alleged ‘blasphemy’ against Prophet Muhammad that also led to the brutal murder of the French teacher Samuel Paty, the brazen shooting of the Charlie Hebdo cartoonists, the horrific killing of cow-lover Kishan Bharwad, the legion of violent protesters that had hit the roads of Bengaluru, indulging in arson and vandalism and many more such incidents that occurred in the name of blasphemy against the Prophet Muhammad.

Recently, the unflattering reference to Prophet Muhammad has led to Nupur Sharma, the national spokesperson for the ruling Bharatiya Janata Party (BJP) and a leader of the party’s Delhi unit, receiving multiple death threats. There were multiple tweets threatening her, some even calling for her beheading after Alt News co-founder Mohammed Zubair shared her video with a twisted commentary to encourage trolls to attack her.

Actually, during a debate on Times Now on the disputed Gyanvapi structure, Nupur Sharma argued that since people are mocking the Hindu faith repeatedly, then they can also mock other religions referring to Islamic beliefs. Taking that video out of context, Zubair shared it with his 464,000 Twitter followers declaring Nupur a rabid communal hatemonger and someone who can incite riots.

The dog-whistling obviously worked perfectly as troll accounts descended upon Nupur Sharma’s timeline giving her all kinds of threats including threats to behead her. With several similar incidents like Kamlesh Tiwari and Kishan Bharwad abound, the police should look at these threats seriously.

Madras HC’s landmark judgment given in 2019 established the difference between blasphemy and freedom of expression

Well, all of these Islamists who openly mock Hinduism but get embittered by the tiniest of remarks against their Prophet must keep reminding themselves of the historic Madras High Court decision from 2019, which clearly defined the difference between blasphemy and expressing religious opinions based on one’s knowledge of the subject.

The court, in February 2019, was hearing a bail plea filed by BJP Tamil Nadu leader R Kalayanaraman, who was accused of blasphemy over a 2015 Facebook post on Prophet Muhammad.

The Tamil Nadu police had booked the BJP leader under different provisions of the Indian Penal Code for allegedly promoting enmity between two groups on the ground of religion and the First Information Report had been registered following receipt of several complaints objecting to a post on his Facebook page titled Kakkai Sidhar Kalayanaraman.

On 2nd February 2019, the 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. The BJP leader was granted bail after being kept in judicial custody for 19 days.

Granting bail to the BJP leader, Justice N Anand Venkatesh of the Madras High Court said, “In the considered view of this court, the petitioner has written his understanding about Prophet Mohamed and his family after reading the relevant history,” and hence he would be entitled to bail on condition that he would cooperate with the probe.

Prophet Muhammad
An excerpt from the 2019 Madras High Court judgement

Justice Venkatesh stated that after reading the entire message, he did not deem it to be reckless or derogatory. He said, “The freedom of expression always gets challenged when it touches upon religious beliefs. There were occasions when similar articles had been written questioning the history of Jesus Christ in the book The Da Vinci Code.

“Even in this State, there are articles written touching upon the life of Seetha in Ramayana. It is one thing to make reckless and derogatory remarks against religious beliefs and it is entirely another thing to express an opinion after reading the entire literature/history of various characters revered as God or Goddess in this society. Not every expression will qualify itself to bring disharmony between various sects or groups,” the Madras High Court judge added.

Notably, this so-called ‘offensive’ post was posted by the BJP leader back in 2015. This case is especially noteworthy since, after a year, D Selvamani, the Chitlapakkam sub-inspector, took cognisance of the ‘Facebook post’ and told his superiors. “I searched for him on Facebook and found abusive comments,” Selvamani told the Times of India, “which I revealed to my supervisors, who asked me to be the complainant in this case.”

Meanwhile, eyeing the minority votes, MMK leader MH Zawahirullah jumped into the fray to take credit for the arrest of the BJP leader, which led to a dispute between Selvamani and MMK leader MH Zawahirullah.

The case against the BJP worker was that his comments about Prophet Muhammad would foster religious friction and animosity between the two faiths. Rangaswamy was granted bail on February 21, 2019, after being detained for 19 days.

Rangaswamy’s lawyer told the court that the BJP activist made no derogatory or objectionable words about Prophet Muhammad. 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 the 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.

Madras HC’s verdict on blasphemy drew on the historic judgment passed by the court in the Tamilsevan vs the Govt of Tamil Nadu case

The advocate who had appeared for Rangaswamy relied on the observations made during the case Tamilsevan vs the Government of Tamil Nadu. The judgement in the Tamilsevan case had laid down the following guidelines:

  1. 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, poems, cartoons or any other creative expressions.
  2. 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.
  3. It is high time the Government constitutes an expert body to deal with situations arising from such conflicts of views, such an 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.
  4. 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 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 that 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 an opinion after reading the entire literature/history of various characters who were revered as gods or goddesses in the society. Not every expression will qualify itself to bring disharmony between various sects or groups and this has 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 of Hinduism has been an acceptable form of free speech. The “liberal” argument in this regard is that the people who point toward 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 of one religion cannot be considered blasphemy while criticism of 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’.

Ayodhra Ram Mandir special coverage by OpIndia

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