(Disclaimer: This article is a work of public critique of judicial reasoning, written without malice, in public interest, and with no intention to bring disrepute to the institution of judiciary. Any inference of contempt, whether real or ideological, is purely incidental.)
On 25 February, the Bench of Justice Siddharth at Allahabad High Court denied anticipatory bail to Amazon’s India head Aparna Purohit in connection with the controversy over the platform’s show ‘Tandav’.
While denying relief, the court observed that Purohit has “acted irresponsibly” in “permitting the streaming of a movie which is against the fundamental rights of the majority community.”
The Google translation of ‘Tandav’ is ‘शिव का उग्र नृत्य’ – or the dance of fury. Without imputing any intent, the language and reasons relied on in the order for denying anticipatory bail to Purohit, also appear to exhibit a degree of fury for “defending the fundamental rights of the majority community” while striking at “the forces inimical to the interest of this country.”
But were these valid legal grounds to deny the request?
What is the Controversy Over ‘Tandav’ About?
Purohit moved the Allahabad High Court seeking anticipatory bail in a criminal case registered against her under sections 153(A)(1)(b), 295-A, 505(1)(b), 505(2) of the Indian Penal Code, sections 66 and 67 of the Information Technology Act, and section 3(1)(r) of the Scheduled Castes/Scheduled Tribes Act.
In total, there are 13 FIRs registered against Purohit (and others associated with the show) across 7 states. All these FIRs are almost identical in nature, invoking the same offences, and voicing the same grievance: “attack on Hindu Gods and Goddesses with the intention to incite communal sentiments”.
The major grievances voiced in the criminal complaints are as follows:
It is adversely affecting the image of UP Police
Hindu Gods and Goddesses have been depicted in a bad light with the intention of inciting communal sentiments
The post of Prime Minister has been depicted in a manner that will adversely affect the democratic system of the country
Utterances have been made against the State police, public administration and the constitutional posts so that the element of hate is developed between the communities
What Is The Law That Has Been Invoked?
The FIRs against Purohit and the others are under the following criminal law provisions:
1. Section 153A(1)(b) IPC: committing an act prejudicial to harmony between different religious groups, and which disturbs or likely to disturb public tranquillity
2. Section 295A IPC: Deliberate and intentional acts committed to outrage or insult religious beliefs
3. Section 505(1)(b) IPC: Publication of a statement with an intention to induce any person to commit a crime against the state or against public tranquillity
4. Section 505(2) IPC: Statements containing rumour or alarming news made with an intention to promote ill-will and enmity between religious or racial groups
5. Section 66 IT Act: Computer related offences
6. Section 67 IT Act: transferring obscene material through electronic form
For the judge to deny anticipatory bail, he had to find that there appeared to be a prima facie case against Purohit, and that there were no good reasons to protect her from arrest. The reasoning for this, however, is not backed up by facts or law.
Shiva Hailing Socio-Economic Freedom Is 'Cheap and Objectionable'?
The judge is of the opinion that the dialogues exchanged between the characters depicted as Lord Shiva and Sage Narada in the show is a “cheap and objectionable” depiction of “esteemed and revered characters of the faith of the majority community”.
However, the scene which the court has declared to be “cheap and objectionable” depicts Lord Shiva commenting on the rising instances of communal violence in the country, while defining the real meaning of freedom – in a theatrical play within the show’s narrative.
Lord Shiva says:
"“The song which we used to sing proudly by standing and flexing the chest, they are deciding that on the thrust of this gun. Oh, freedom is such that one should study in syllabus, should be printed in newspapers. The world should be such that the laborer has his hard-earned money in his hand before his sweat becomes dry.”"
The court has also shown objection to the dialogue which reads as “ Ramji followers are increasing day by day on social media”. As per the court, it is the "clear pointer” to the dispute regarding the construction of Ram Temple. Further, the court has held that the use of the word “Tandav” itself can be “offensive to the majority of the people in the country”, given its connections to Shiva.
But... Where Is The Crime?
While the court has gone to great lengths in calling out the “objectionable content”, it has given little to no reasoning on how such content meets the threshold set out in offences invoked against Purohit.
In the MS Dhoni case, the Supreme Court had quashed a complaint against the cricketer under section 295A of IPC by noting that “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 Allahabad High Court, however, completely disregards the ‘disclaimer’, ‘unconditional apology’, and ‘deletion of scenes’ done by Tandav’s producers, which they had argued was clear evidence to show an absence of malice.
Indeed, the court didn’t bother to provide any evidence or reasoning to show that Aparna Purohit intentionally and maliciously attempted to hurt anyone’s religious beliefs.
The court also completely overlooked the fact that the state failed to show any evidence connecting the movie to any actual instance of public tranquillity being disturbed, development of enmity between religious groups, or any person being induced to commit a crime against the state – all of which are required for a case under these legal provisions.
Instead of scrutinising the evidence produced by the state, the concerned judge has written paragraphs on how and why he thinks that the ‘movie’ (even though Tandav is in fact a series) is objectionable, citing inferences that have no mention in the statements made by the state itself. For instance:
"“The reference to Hindu Gods and Goddesses in the scenes in dispute in berating light cannot be justified. The advice of Sage Narada to Lord Shiva to make some inflammatory tweet on the Twitter like all the students of the campus becoming traitors and raising slogans of freedom clearly alludes to the incidents which took place in Jawaharlal Nehru University and therefore, it can be considered to be a message of hate advanced through the movie.”" - Justice Siddharth, Allahabd High Court
Neither a reference to the JNU sedition case or to the Ram Temple’s construction, are currently prohibited by law. Yet the judge is imputing criminal liability merely to these references, without actually examining the content.
Freedom of Religion Trumps Right To Liberty & Free Speech
The order denying bail has dedicated 6 paragraphs to freedom of religion, even invoking the address of Swami Vivekananda, but a discussion on freedom of speech or right to liberty – which are actually key since a relief for the accused is being considered here – is hardly visible.
Moreover, while explaining the application of sections 295A and 153A to the present case, the court has disproportionately privileged the state’s narrative, while showing complete apathy towards the merits in the defence’s case.
Just like the Madhya Pradesh High Court’s order denying bail to Munawar Faruqui order, we again see an overemphasis on non-enforceable fundamental duties and directive principles of state policy, instead of fundamental rights by the court, even though the former are not relevant to a bail order, while it is the fundamental rights which form the basic structure of our constitution.
Effectively, the court is asking citizens to self-censor, instead of directing the government to ensure protection of their fundamental right to freedom of speech.
Us vs Them: Extralegal Terms Plaguing The Judicial Reasoning
In its reasons to defend the denial of bail, the court resorted to several extra-legal terms such as “forces inimical to the interests of the country”, “basic concept of the survival of the country”, “political order”, and “communal order” when analysing Purohit’s conduct and the implications of the show.
These terms, which are used to justify the invocation of criminal provisions against her, are nowhere to be seen in either the IPC or any other law.
The language of the court has transcended the facts of the present case to become a political commentary that reeks of ideological polarisation. For instance, while referring to how “such crimes” (as the present case) are made “subject matter of protests”, the court says:
"“... the forces inimical to the interest of this country become active and they make it an issue and raise it before different national and international forums alleging that the Indian citizens have become intolerant and “India” has become unsafe place to live. Even in the liberal democracies of the West, it becomes a topic of debate and the Indian diplomacy has to face tough time protecting the interest of the country.” "
Not only are these comments devoid of any factual basis, they are also entirely irrelevant to a decision on whether or not to grant Purohit anticipatory bail, as they have nothing to do with her conduct.
Even more disturbingly, the judge also seems to have already taken a call on the fate of the case, with several lines in the order (see for instance para 20) failing to to use the word “alleged” when referring to Purohit or the crimes she is being accused of.
The law frowns upon going into the merits of a case at the stage of adjudicating bail, unless of course there is no evidence whatsoever to justify even a prima facie case against the accused.
This is to ensure that courts do not decide or comment upon the culpability of the accused before the entire process of examination and cross-examination that takes place during a trial is completed.
This principle safeguards the right of the accused to not to be held guilty without a fair trial. However, this principle has been left by the wayside in this order.
Such is the court’s conviction that Purohit has committed a crime, that in para14, the court has recorded, “The submission of apology or withdrawal of scene after its streaming would not absolve the accused persons of the offence committed by them”. The present order – which remember, is merely dealing with anticipatory bail – comes across as having pre-judged the case without a trial.
The ideological and political flavour of judicial reasoning, in this case, is also reflected in how the court has referred to the filmmakers. Instead of restricting itself to an impartial evaluation of the facts in the present case, the court goes on the comment on what it believes is the “growing tendency that needs to be curbed”:
"“This tendency on the part of the Hindi film industry is growing and if not curbed in time, it may have disastrous consequences for the Indian social, religious and communal order. There appears to be a design behind such acts on the part of the people who just give a disclaimer in all the films and depict things in the movies which are really religiously, socially and communally offensive in nature.” " - Justice Siddharth, Allahabad High Court
The court further invoked the case of “obscure comedian from Gujarat”, Munawar Faruqui, to show how he made comments against Hindu Gods in his Indore show to gain publicity.
This observation is completely unfounded not only because Munawar was eventually granted bail by the apex court the moment his case was presented to the judges, but also it is a matter of record that the FIR against him nowhere mentions that he cracked those jokes during his Indore show.
Such reliance, therefore, raises serious questions on the narrative and the context the court was trying to script through this order.
The present bail order comes across as ideologically-laden political commentary, derisive of dissenting voices, and a complete departure from the established principles of adjudicating bail.
When the judicial reasoning is filled with rhetorical claims supporting the state’s narrative, instead of clear scrutiny of the evidence, justice takes a back seat. Grant of bail is a judicial discretion, but this discretion rests within the four corners of the law; it cannot deviate from the established principles of judicial reasoning and adjudication, including that bail is the rule and jail is the exception.
And of course, the presumption of innocence.
Judicial proceedings can’t be a ‘tandav’ of personal or political beliefs. Such a ‘dance of fury’ is antithetical to ‘just and reasoned balancing of competing narratives’, which is the job of the courts in a case like this.
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