Displaying images of Mughal emperor Aurangzeb, protests against the damage to the environment and calls for justice are a few among the series of instances in recent times that the police have deemed fit to file cases for “mischief” or “causing enmity”.

In contrast, there is inaction when it comes to open calls for genocide against Muslims and hate-mongering on social media and elsewhere, despite clear orders from the Supreme Court on the matter.

This seems to send the alarming message that the police are either unable to differentiate between the freedom of expression and open hate speech, or believe that opinions that contradict the ruling establishment must be shut down.

FIRs for WhatsApp statuses

Bharatiya Janata Party governments both at the Centre and the states are in a tearing hurry to obliterate Mughal history. In Maharashtra, the latest skirmish in India’s war on history involves Aurangzeb. The state seems to believe that it is a criminal offence to display an image of the Mughal emperor as a WhatsApp status.

Earlier in June, five underage boys were detained in Maharashtra’s Kolhapur after a WhatsApp display picture of Aurangzeb sparked a riot. Deputy Chief Minister Devendra Fadnavis fuelled the fire with a dog-whistle comment. “Where have these children of Aurangzeb suddenly come from?” he asked.

On June 18, the police in Vashi said they had registered an FIR against a 29-year-old man for using a picture of Aurangzeb as his WhatsApp status. The FIR has been registered under Section 153A of the Indian Penal Code and relates to the offence of creating enmity between religious groups.

Though the 17th-century Mughal emperor had a reputation for being a religious fanatic, there is no law that bans his picture being displayed anywhere. According to media reports, the police justified their action by claiming that the image could have created enmity between religious groups, in light of the communal incidents in Kolhapur and other places in the state recently.

Ramdev at an even in Rajasthan's Barmer where a made a bigoted speech against Muslims and Christians in February. Screengrab via @HindutvaWatchIn / Twitter

Intolerance of different opinions

The police action, though swift, seems quite arbitrary. Several instances of hate speech by Hindutva speakers that have the potential to cause communal disharmony have been reported in recent months but the police have not taken any action in these cases. This despite the fact that the Supreme Court in April directed governments to act swiftly in cases of hate speech and warned that inaction by the police would be considered as contempt.

The police action is more than just a direct attack on the fundamental right to speech and expression. If people are going to get offended by the status messages and pictures that others put up on their social media accounts, the police will be busy registering endless FIRs. The aim of the police and the government in registering such FIRs is to send a message that opinions contrary to those of the ruling party will not be tolerated.

The Vashi FIR is contrary to the spirit of a bunch of court orders in recent years emphasising the freedom to express opinions that others may not agree with. Among these is the Supreme Court order in 2021 quashing an FIR against Shillong Times editor Patricia Mukhim.

The case had been filed against under section 153A, the same provision used by the Vashi police, after Mukhim posted a Facebook message demanding action against a group of young men who allegedly assaulted six non-tribals playing basketball in a town in Meghalaya.

The court observed that when people work or settle down in other parts of the country, “there may be resentments, especially if such citizens prosper, leading to hostility or possibly violence”. But, the judges added, “In such instances, if the victims voice their discontent, and speak out, especially if the state authorities turn a blind eye, or drag their feet, such voicing of discontent is really a cry for anguish, for justice denied – or delayed.”

Cases over environmental activism

Earlier this year, the Bombay High Court quashed an FIR registered against activist Avijit Michael for obstructing public servant in discharge of public function. Michael had been accused of harassing a public servant by sending her text message about trees being cut for the Mumbai metro project.

“His intention appears to be to protect the forest, he considers to be acting like a pair of lungs for the city of Mumbai,” the court said. “ These messages do not contain any offensive material or any obscenities. Rather, they appear to have been sent in assertion of a democratic right of citizen of this country to put forth his view point, to object, to protest, to persuade, to urge, and so on.”

Being prosecuted for these messages, the court said, “may amount to an invasion upon the rights of the citizens of this country”. It added, “Upon such a complaint, as the one involved here, police must never book any ordinary citizen of the country under criminal law and if it does, it would be like suppressing his voice against what he considers to be a wrongful thing.’

Similarly, the government of Maharashtra in the case of Amol Bole in May was forced to withdraw the externment orders passed against eight villagers from Barsu in the Konkan region who were protesting plans to open an oil refinery in the region. The villagers contend that the facility will increase pollution and damage farming and fishing.

But instead of hearing out their grievances, the Maharashtra government barred the residents leading the protest from entering their villages. During the hearings, the court repeatedly asked why the villagers were not allowed to protest.

Shrinking space for protest

While the space for physical protests across the country is constantly shrinking, as was evident recently during the wrestlers’ protests, the courts give some hope for protests to be carried in the virtual world through various social media platforms.

The efficacy of a virtual protest is debatable. But it is easier than protesting physically: it can be done sitting at home, at the click of the button. The government and the police obviously have not got the message though the courts have made this clear, especially in the case of Avijit Michael.

The courts may eventually come to the rescue of the man in the Vashi FIR but the process is the punishment. It took nearly six years for Avijit Michael to get the FIR against him quashed by the High Court. Such frivolous FIRs must be condemned by the courts in the strongest terms and the officers responsible must be made to pay for the loss of liberty and mental trauma of the victims of these cases.

Vijay Hiremath is a lawyer practising in Mumbai.