A Supreme Court bench led by Chief Justice Ranjan Gogoi on Thursday told Abhijit Iyer-Mitra, a defence analyst facing arrest for making “derogatory remarks” about Odisha’s Konark temple, that jail would be the safest place for him if he feared for his life.
“If your life is in danger, then what better place to stay than jail?” the bench said while denying him protection from arrest. “Your life will be secure.”
Iyer-Mitra was arrested by the Odisha police on September 20 after he posted a video on social media in which he allegedly made “unpalatable and irresponsible remarks” about the Konark temple “with an intention to outrage religious feelings which may create communal friction”. The analyst was booked under Sections 153A and 295A of the Indian Penal Code.
The matter was even discussed in the Odisha Assembly, which later initiated privilege proceedings against him.
A lower court granted Iyer-Mitra interim bail just hours after his arrest but ordered him to join the police investigation on September 28. But he did not, alleging a threat to his life. Since this was grounds for the police to arrest him, the accused moved the apex court for relief, NDTV reported.
The court turned him down because he has “incited religious feelings”.
Bail, of course, is not matter of right and the Supreme Court is within its authority to deny it. Neither is the court expected to dwell into the nature of the evidence against an accused during the bail stage. But its remarks on Thursday do not augur well for those who may want to knock the apex court’s door to safeguard their liberty. The court is expected to refrain from passing comments on the alleged offences of the petitioner before it lest they influence how lower courts deal with the matter.
It is instructive to see how the Supreme Court has dealt with similar cases in the past, even though the rulings came either on appeals against conviction or petitions for quashing first information reports. They show how 153A and 295A were misused, and the alleged offences often went unproved.
A fundamental rule for invoking 153A and 295A is that there must exist on part of the accused what is known as “mens rea”, or “the intention or knowledge of wrongdoing that constitutes part of a crime”.
In 1995, in Balwant Singh v State Of Punjab, the Supreme Court made it clear that the intention of wrongdoing was “sine qua non”, or an essential condition, for an offence to be made out under 153A. Moreover, evidence must be shown that the alleged remarks disturbed public peace. The case involved two men accused of inciting enmity between groups by shouting slogans calling for an end to Hindu rule in Punjab. The court ruled:
“In our opinion only where the written or spoken words have the tendency or intention of creating public disorder or disturbance of law and order or effect public tranquility, that the law needs to step in to prevent such an activity. The facts and circumstances of this case unmistakably show that there was no disturbance or semblance of disturbance of law and order or of public order or peace and tranquility in the area from where the appellants were apprehended while raising slogans on account of the activities of the appellants. The intention to cause disorder or incite people to violence is the sine qua non of the offence under Section 153A IPC and the prosecution has to prove the existence of mens rea in order to succeed.”
Iyer-Mitra’s remarks have not disrupted public peace in any significant way.
Invoking 295A, which makes outraging religious sentiments a crime, is also determined by the principle of intentional wrongdoing.
In 2017, in Mahendra Singh Dhoni v Yerraguntla Shyamsundar, the Supreme Court reiterated that not every insult to religion will attract 295A. In this case, a complaint had been filed against the Indian cricketer Dhoni after he was depicted as the Hindu deity Vishnu in a magazine. The court ruled:
“On a perusal of the aforesaid passages, it is clear as crystal that Section 295A does not stipulate everything to be penalized and any and every act would tantamount to insult or attempt to insult the religion or the religious beliefs of class of citizens. It penalize only those acts of insults to or those varieties of attempts to insult the religion or religious belief of a class of citizens which are perpetrated with the deliberate and malicious intention of outraging the religious feelings of that class of citizens.”
The Patna High Court adopted this same standard last year to dismiss a 295A case against the Bangladeshi writer Taslima Nasrin, who had been booked for posting a tweet.
The link between a remark and disruption of public peace is crucial because it is possibly the only way to confirm a deliberate attempt to invoke religious or caste hatred. This principle must apply to Iyer-Mitra as well. The mere registration of a case for “outraging religious sentiments” or “creating enmity between groups” does not make him undeserving of bail.
Further, the apex court’s remark that jail would be a safe place for someone fearing for their life doesn’t reflect reality given crime, including murder and sexual assault, is rampant in India’s prisons.