To suppress free speech is a double wrong. It violates the rights of the hearer as well as those of the speaker
Written by: Rahul Krishna Sharma, 1st Year at Campus Law Centre, Delhi University
On 1st January 2021 stand-up comedian, Munawar Faruqui and four of his associates were arrested by the Indore Police, following a complaint from Eklavya Singh Gaur, son of Indore BJP MLA Malini Gaur. In the complaint, Mr Gaur complained that the aforementioned allegedly insulted Hindu deities during a comedy show and profaned Home Minister Amit Shah.
This article intends to analyse the Munawar Faruqui case and seeks to answer a few unanswered questions that lay still in the political and legal spectrum of India.
Further, this article is divided into two parts. The first part attempts to analyse as to who exactly is Munawar Faruqui and why is it important to understand him in the context of the 21st century India. The second part of this article intends to scrutinize the case made against him and to provide a deep seethed understanding of the legal sections and precedents that are in play.
Munawar Faruqui: A Contextual Understanding
It would be highly erroneous and careless on my part if I leave this section of the article by just labelling Munawar Faruqui as a standup comedian or an entertainer because the truth is, he is much more than that.
Munawar Faruqui, a 28-years-old small towner Muslim comedian residing from Junagadh is today the poster boy of a modern young Muslim man who is unconventional to the bone, not only because of this career choice but also because of his (a Muslim man’s) choice to voice himself against the ruling party in a highly polarized Hindu India. He is aspirational in the sense that he made it in the most unconventional field and in the most unconventional way and sees himself beyond his religious identity which in today’s India is highly commendable. However, it’s not just this. Munawar essentially carries two burdens on him. First, the lack of financial capital which in crude terms is “poverty” and poverty, does not just deny the material benefits but as Amartya Sen explains, the exclusion of poor from participation and access to opportunities and activities is a major nonmaterial dimension of poverty that also needs to be recognized and this, in its entirety is the second burden that Munwar faces and that is of the social exclusion. However, this social exclusion doesn’t just arise from him being poor but also stems from his religious identity i.e. him being a Muslim man in an India that is submerged in the idea of Hindutva.
What really happened?
The question “What really happened” is intrinsic and is not just a question for Munawar but also for the Indian masses who stand by the very soul of the Indian Constitution which swears to be secular and democratic.
On 1st January 2021, Faruqui was slated to perform at Indore’s Monroe Café when a mob led by Eklavya Singh Gaur, convenor of the Hind Rakshak Sanghatan entered the café and demanded the performance to be halted. Gaur further alleged that the show mocked Hindu deities by passing indecent comments and also reprimanded Faruqui for a previous video that was uploaded by the comedian on his Youtube page. The audience however retaliated with a different account and reported that the event had just started and went on for five minutes or so and nothing was said that could be construed as hurting religious feelings. The police do not have any video evidence of the event.
The Legal Proceedings
The Madhya Pradesh Police, after a preliminary probe, booked Faruqui under IPC section 295-A, 298(uttering words with deliberate intent to wound religious feelings) and 269(negligent act likely to cause spread of diseases)
Section 295A of the IPC
Section 295A of the IPC states that whosoever deliberately and maliciously intends to outrage feelings of any class by insulting its religion or religious beliefs in any manner will be punished.
However, it becomes essential to prove the mens rea i.e., guilty mind of the person accused. With no video evidence and the audience siding with Munawar this entire trial can always be judged as a political trial rather than a legal trial, in which case the issue entirely changes. The issue then is not whether any man is above the law.
It is whether any man is below the law and in this case, it is our very own Munawar whose identity became the very reason for him to be treated differently.
In a religious and sensitive country like India, anything can be interpreted to be an insult to someone’s religious beliefs.
However, criminal law cannot operate to curb free speech and liberty in order to protect the religiously sensitive kind.
The applicability of Section 295A came up before the Supreme Court in the 1957 Ramji Lal Modi Vs. The State of U.P  INSC 31.
In this case, the constitutionality of section 295A was challenged. However, this case came up before the court, post the 1st Constitutional Amendment, which introduced reasonable restrictions in Article 19. Therefore, it was difficult for the court to strike down the law as unconstitutional.
However, the court clarified that—
“… s. 295A does not penalise any and every act of insult to or attempt to insult the religion or the religious beliefs of a class of citizens but it penalises 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. Insults to religion offered unwittingly or carelessly or without any deliberate or malicious intention to outrage the religious feelings of that class do not come within the section. It only publishes the aggravated form of insult to religion when it is perpetrated with the deliberate and malicious intention of outraging the religious feelings of that class”
The Supreme Court in Shreya Singhal [AIR 2015 SC 1523] has argued that while Ramji Lal Modi did not strike down Section 295A, the impugned provision was read down to mean that aggravated forms of insults to religion must have a tendency to disrupt public order.
More recently, in the Mahendra Singh Dhoni Case [AIR 2017 SC 2392], the Supreme Court reiterated that in Ramji Lal Modi “emphasis has been laid on the calculated tendency of the said aggravated form of insult and also to disrupt the public order to invite the penalty.”
The established precedents clearly indicate the following.
Firstly, 295A does not penalise every act of insult.
Secondly, deliberate and malicious intention of outraging religious feelings must be proved.
Thirdly, only an aggravated form of insult to religion is punished.
Lastly, the aggravated form of insult must have a tendency to disrupt public order.
To argue from a perspective that Munawar Faruqui has desecrated section 295A is not only a death to free speech but also is against the wishes of the Prime Minister of the country who rightfully says
“I think we need more satire and humour. Humour brings happiness in our lives. Humour is the best healer.”
- Ramji Lal Modi Vs. The State of U.P  INSC 31
- Shreya Singhal [AIR 2015 SC 1523]
- Mahendra Singh Dhoni Case [AIR 2017 SC 2392]
- Munawar Faruqui’s Case- Misuse Of Section 295A Of Penal Code And An Aggravated Insult On Free Speech (livelaw.in)