Madras High Court: On finding that Section 295A IPC will be attracted in the present case, G.R. Swaminathan, J., observed that,
Bhuma Devi is considered as a Goddess by all believing Hindus. I use the expression “believing” because, even materialists, rationalists and non-believers also can be counted as Hindus. I may add tongue-in-cheek that even the great iconoclast and rationalist Periyar did not cease to be a Hindu. Bharat Mata evokes a deeply emotional veneration in a very large number of Hindus. She is often portrayed carrying the national flag and riding a lion. She is to many Hindus a Goddess in her own right.
Court also observed that,
To uphold the sanctity of the Constitution and maintain public order, the strong arm of law will have to come down heavily on those who seek to disrupt communal peace and amity.
High Court’s Observation
“En Kadhala” in the album “Naatpadu Theral” is yet another Vairamuthu melody. The song celebrates the irrelevance of the age factor to a person in love. However, the visualization of the song carries a deeper undertone – the relationship between humans and nature. One sees a plant lovingly bowing down and touching the protagonist to comfort her.
Court expressed that after the tragic partition on the sole ground of religion, our founding father enacted and adopted a secular constitution which is premised and anchored on civic nationalism.
While a civic nationalist believes in India as a secular conception with the Constitution as its guiding light, to a religious nationalist, India is Bharat Mata. Even to the latter, the Constitution has to be the foundational and guiding document.
Background
In the present matter, the petitioner was an ordained Catholic diocesan priest. It was stated that a meeting was organized protesting the continued closure of churches owning to the pandemic-induced lockdown. The entire speech was circulated on social media and in that the petitioner was seen and heard claiming that the network of Catholic priests was tapped by him and his associates to canvass votes in favour of the Dravid Munnetra Kazhagam which won the recently concluded Tamil Nadu Assembly election.
It was also stated that the petitioner mocked the Minister for Hindu Religious and Charitable Endowments Department in the following words:
“It does not matter how many temples you renovate and consecrate. No Hindu, no devotee of Mandaikattu Amman is going to vote for you. If you won, then it is the alms we Christians and Muslims have thrown to you. You won not because of your talents”.
Petitioner mocked Shri M.R. Gandhi who was an MLA on a BJP ticket and was known to walk barefoot out of respect for Mother Earth. Further, he also attacked the Prime Minister and Home Minister by holding out a grim prophecy:
“The last days of Modi are going to be pathetic. I give it in writing. If the God we worship is a true living God, the history should see Modi and Amit Shah being eaten by dogs and worms.”
The above-stated speech provoked considerable public outcry and hence the first respondent registered a crime against the petitioner and another for the offences under Sections 143, 153A, 295A, 505(2), 506(1) and 269 of the Penal Code, 1860 and Section 3 of the Epidemic Diseases Act, 1897.
In order to quash the above stated FIR, the present petition was filed.
Analysis, Law and Decision
Why Sections 143 IPC and 506(1) will not be attracted?
High Court found that the meeting was held in a private place belonging to the first accused and it was convened to mourn the demise of Fr. Stan Swamy who died in judicial custody and to demand the opening of the places of worship.
The Court stated that the above cannot be an unlawful object. Therefore, the attendees including the speakers cannot be called as members of an unlawful assembly. Hence, Section 143 IPC will not be attracted.
Since the speech was made from a platform and no affected person had complained that he felt criminally intimidated, hence, Section 506(1) IPC will also not be attracted.
Why Section 269 IPC and Section 3 of Epidemic Diseases Act, 1897 will not be invoked?
The Bench stated that none of the people suffered from any infectious disease or contributed to its spread, hence Sections 269 IPC and Section 3 of the Epidemic Diseases Act, 1897 could not be invoked against the accused.
Whether ingredients of Section 295A IPC are present in the instant case?
Section 295A IPC:
Whoever, with deliberate and malicious intention of outraging the religious feelings of any class of [citizens of India], [by words, either spoken or written, or by signs or by visible representations or otherwise], insults or attempts to insult the religion or the religious beliefs of that class, shall be punished with imprisonment of either description for a term which may extend to [three years], or with fine, or with both.]
Constitution Bench of the Supreme Court in Ramji Lal Modi v. State of U.P., AIR 1957 SC 620, had considered the above-stated provision and it was held that this provision does not penalize any and every act of insult or attempt to insult the religion or the religious beliefs of a class of citizens but only those acts of insults to or those varieties of attempts to insult the religion or the religious beliefs of a class of citizens which are perpetrated with the deliberate and malicious intention of outraging the religious feelings of that class.
In Court’s opinion, there was absolutely no need or necessity to mount a visceral attack on the religious beliefs of the Hindus, it was unwarranted and utterly unrelated to the occasion.
“The petitioner poked fun at those who walk barefoot out of reverence for Mother Earth. He stated that Christians wear shoes so that they won’t catch scabies. He painted Bhuma Devi and Bharat Mata as sources of infection and filth. Nothing can be more outrageous to the feelings of the believing Hindus.”
High Court expressed that Section 295A IPC is attracted when there is an attack on the religious feelings and beliefs of any class of citizens.
Adding to the above, Bench stated that if the offending words outrage the religious feelings or beliefs of even a section of Hindus, the penal provisions would be attracted.
High Court held that Bharat Mata and Bhuma Devi were used in the most offensive terms by the petitioner hence, he prima facie committed the offence under Section 295A IPC.
Petitioner’s speech targeted the Hindu community and put them on one side and Christians and Muslims on the other. He clearly was pitting one group against the other and the distinction was made solely on the ground of religion.
Petitioner opened his speech as follows:
“I was born into a Hindu family. My grandfather was Hindu. Since he thought it fit that his daughter should leave this gutter, he gave her hands in marriage to my Christian father. If not for this marriage, I would have been a possessed man ringing bells at some “Sudalaimaadan Swamy” temple. The Christian faith gave us liberation. Hence, we shall continue to evangelise this faith.”
Petitioner continued mocking the traditional practice of male devotees in the erstwhile Travancore region, where they do not wear the upper garment as follows:
“Manothangaraj goes to the Suseendiram temple. Can he not enter the temple wearing a shirt? Would we allow someone who looks like he’s returned in a towel after bathing in a pond to enter our church? We would say “Get out, you tweak”. Christianity has taught you to wear a shirt. But you go in without a shirt. Glad you atleast wore a Veshti (Dhoti).”
Opining that the petitioners’ words were utterly provocative and reeked of malice and supremacism, the question was whether the State could ignore such incendiary statements as that of a lunatic fringe. The Bench stated that the answer has to be in the negative.
“…the status quo in the matter of religious demography has to be maintained. If there is a serious subversion of the status quo, calamitous consequences may follow. State is there to maintain and uphold the rule of law. But if the tipping point is reached, things may become irreversible.”
Court also highlighted that,
“…religious conversions cannot be a group agenda. Our Constitution speaks of composite culture. This character has to be maintained. The clock of history can never be put back.”
Why was Section 295A IPC could not attract in the Munawar Faruqui incident?
High Court reasoned out that, when stand-up comedians Munawar Faruqui or Alexander Babu perform on stage, they are exercising their fundamental right to poke fun at others. Again, their religious identity is irrelevant. It is here, the “Who?” and “Where?” tests matter.
Section 295A of IPC cannot be invoked in such cases because the element of malice is wholly absent. The persons concerned voice their opinions or give vent to their expressions in their capacity as satirists.
Whereas, in the present matter, an evangelist like the petitioner cannot claim a similar privilege as in the above-stated. Petitioner cannot insult or outrage other’s religion or their religious beliefs and still claim immunity from the application of Section 295A/153A/505(2) of IPC.
Therefore, offending speech of petition prima facie attracted the offences under Sections 153A, 295A and 505(2) of IPC.
Parting Words
“I am certain that on the Judgment Day, God shall admonish the petitioner for having committed an un-Christian act.”
[Fr P. George Ponnaiah v. Inspector of Police, 2022 SCC OnLine Mad 81, decided on 7-1-2022]
Advocates before the Court:
For Petitioner: Mr T. Lajapathi Roy
For Respondents: Mr E. Antony Sahaya Prabhakar
Additional Public Prosecutor for R1 and R2
Ms L.Victoria Gowri for Ms D.Ramya for R3
Mr Sricharan Rangarajan for M/s.P.Sivachandran for R4
Thank you for putting this out there. I agree with your opinion and I hope more people would come to agree with this as well.