Updated: Jan 30
New Delhi: Over a century ago, someone anonymously published a pamphlet called Rangila Rasul, which made various scurrilous comments about the Prophet. It provoked outrage amongst Muslims in undivided Punjab, prompted admonition from Mahatma Gandhi, and ultimately led to the insertion of section 295-A in the Indian Penal Code [Act No. 25 of 1927 (pg. 141-42 of link]. (If you are interested in the birth of this provision, do read Neeti Nair’s excellent piece).
At the start of 2020, some people paid to watch a comedian make irreverent remarks about political leaders, gods, goddesses, and religious beliefs, which they later claimed to have found to be “objectionable” and an offence under section 295-A (and other bailable offences).
Whether or not these remarks were made might become the subject of a trial to decide whether the comedian insulted the religion/religious beliefs of a class of citizens through words that he uttered with the “deliberate and malicious intention of outraging [their] religious feelings”, and find him guilty if he did so.
So, how do we explain his arrest and continued incarceration four weeks from the date of the alleged incident?
It is something that definitely requires explanation when we consider the fact that, after a single-judge bench of the Madhya Pradesh High Court (Indore) dismissed his bail application on 28 January 2021, three different courts have evidently found it reasonable for a comedian to stay in jail for allegedly making offensive jokes.
It is not, I argue, a bad draw on the slot machine with a person getting three strict judges as one might think. Rather, the outcomes are generated because our legal system allows decisions about arrest and custody to be made on inscrutable grounds without being tethered to the service of any objectively rational basis that furthers societal interests.
Offence Classification And Personal Liberty
Elsewhere, I argued that the bail regime is built on the twin pillars of offence-classification and judicial discretion. Here, let us focus that analysis to the specific offence of section 295-A.
Section 295-A is a cognizable and non-bailable offence. What does that mean? It means that the police can arrest persons without a warrant in such cases and begin investigations without seeking permission from a court. Persons so arrested have no right to be released on bail.
This classification is not preordained but the product of “legislative wisdom”, which in 1927 justified making the crime non-bailable because the most likely offenders were imagined as being “some obscure and scurrilous scribbler writing from some obscure den or pot-house in a bazaar, whose appearance in the court could by no means be relied upon”. Even so, the offence was not cognizable, and it was only with the passing of the Code of Criminal Procedure, 1973, that police were given powers to arrest people without a warrant in such cases.
The history of 295-A bears witness to the fact that the rationale of 1927 has not held good, with offenders including actors, painters, cricketers, and of course, comedians. In 2014, one member of parliament even argued that criticism of Sachin Tendulkar should be punished under section 295-A.
Further, placing 295-A in the larger scheme of substantive crimes also makes it difficult to justify its non-bailable status; this is a minor offence punishable with up to three years imprisonment [and till 1961 (pg 242-43 of the link) it was only punishable up to two years in prison].
Reclassifying it as would not only make more sense, but also be in tune with views of the Law Commission (pg. 71) and also the Supreme Court, which in Arnesh Kumar directed against arrests where the alleged offence is punishable up to seven years in prison. But, as I argued elsewhere, reclassifying offences on a more rational basis is to mis-identify the problem, which is the classification itself.
Let us take the example of making allegedly offensive statements. Under the scheme of Indian criminal law, this broad conduct can be punished by way of several specific crimes such as sections 153-A (promoting enmity), 500 (defamation), or even 505 (statements conducing public mischief) of the Code; something which, as Neeti Nair tells us, had prompted jurist H S Gour to remark during the debates about section 295-A that the new provision would be superfluous.
Rather than treat all the species of one kind of crime similarly from the perspective of bail, Indian law treats each of them differently, which creates perverse incentives to invoke the technically harsher offence to describe crimes.
Thus, making bail contingent upon offence-classification in effect subjugates personal liberty to the whims of police officers who are the ones to decide what kinds of offences are added to the FIR in every case.
The Bogey Of Judicial Discretion
One reason why offence-classification has not been seen as a problem is due to an abiding faith in the notion of judicial discretion in matters of bail.
Simply put, our system trusts that courts will make the right call in matters of arrest and custody when non-bailable offences are involved. This translates in the law placing unfettered discretion in the hands of senior judges (section 439 of the CrPC) and near-unfettered discretion with magistrates (section 437 of the CrPC). Of course, this trust stands conveniently diminished in some contexts such as anti-terror law, but that is a conversation for another day.
A belief in the rule of law as against the rule of man is one of the founding myths of the modern state. This underlines the expectations of citizens from every branch of the state, including the judiciary, that our engagement with state actors will not be governed by an idea that “show me the man, and I will show you the law”.
The judiciary serves to reinforce this idea of equality for citizens; however, the very judiciary designed to curb arbitrariness becomes its exponent. This arbitrariness in how the judiciary operates is rife when it comes to bail hearings, as can be seen in how the bail applications were dismissed in Faruqui’s case.
At the first level is processual arbitrariness: there is no clarity about the standard to which any side is required to establish its case, about whether affidavits ought to be mandatorily filed, what all should bail orders explain, or how long adjournments can be for issues such as asking police to bring case diaries.
More problematic is the arbitrariness that clothes decision-making. There is no clarity about what kinds of factors courts should consider when dealing with bail matters: the Law Commission in its 154th Report could only manage extracting a list of 12 illustrative factors in 1996, which the Supreme Court has now tried to reduce down to four.
Nor is there a clear objective which guides judicial discretion in bail matters. Judges must consider factors such as the possibility of tampering, look at the gravity of an offence, seriousness of allegations, and the nature of evidence; but to what end are courts looking at all this information? There is no answer, and the idea that “bail is the rule” is frankly little more than a convenient aphorism. The resulting hotpotch enables disregarding the presumption of innocence, as courts are encouraged to look at the merits of the case while deciding bail without this analysing being tethered to the service of any other objective, such as identifying if the allegations make the accused a flight risk.
Thus, bail is often denied because of what the judge thinks about the offence—a feature not restricted to crimes like murder, but even to speech crimes. Which brings us to the order passed on 28 January by a single bench of the Madhya Pradesh High Court. The order is indecipherable on what exactly prompted the court to reject bail: Was it that the accused was seen as a flight risk? The comedian is a public figure, so one imagines that the chances of that would be minimal. Were there reasons to believe that he would tamper with evidence?
No discussion of this nature is present in the order, and frankly, how could one tamper with recordings admittedly available with police officers. In any event, one imagines that these concerns could be addressed by conditions.
Then was the gravity of alleged offences so severe that bail ought not to be granted? This seems to be the basis for rejecting bail, but surely this cannot be. After all, determining gravity is not a subjective exercise about how any person might feel about an alleged offence but it is an objective exercise about how the law looks at it, and the offence under section 295-A is not seen as a serious offence.
Rather than elaborate on these issues, what the order does is to remind everyone about the “constitutional duty of every citizen of the country … to promote harmony and the spirit of common brotherhood” and called upon states to “endeavour that ecosystem and sustenance of coexistence in our welfare society is not polluted by negative forces”. Perhaps, the next list by the Law Commission will add yet another factor that courts can consider for deciding issues of bail.
Something’s Gotta Give
The reification of judicial discretion and its detachment from any clear purpose converts it into yet another site of oppression and arbitrariness for the citizen interacting with the state.
As it is the judiciary, the price paid by the citizen is immense: liberty. By transforming bail hearings into theatres of the absurd—legends about coin-tossing judges have been traded between lawyers —we end up in a place where presumptive guilt begins to rule the roost and arrest on unproven allegations can consign the individual to ignominy.
The law might demand that citizens be presumed innocent till proven guilty, but this loses its force when the law also allows innocent persons to be jailed for months awaiting trial not to decide whether one person stabbed another, but whether he made jokes with a very specific kind of criminal intent.
The ongoing process of criminal law reform released questionnaires where a select few issues relating to arrest and bail were raised. It is telling that neither offence-classification as a principle nor the unguided exercise of judicial discretion featured on that list.
As Faruqui’s case and countless others confirm, there are no other issues more pressing than these, if our criminal process has to reaffirm the value of personal liberty and the promise of a presumption of innocence.
(Abhinav Sekhri is a Delhi-based lawyer who writes on criminal law and procedure.)
Previously on Article 14: