On Monday, the Punjab and Haryana High Court quashed First Information Reports filed against musician Vishal Dadlani and businessman and Congress member Tehseen Poonawalla for their tweets about Jain monk Tarun Sagar. The Haryana government had supported the complainant’s allegation that Dadlani and Poonawalla’s remarks were intended to outrage religious feelings and incite enmity between religious groups.
Yet, despite finding that no offences had been committed under the penal code sections cited in the FIRs – 295A (relating to malicious acts, intended to outrage religious feelings) and 153A (“promoting enmity between different groups on grounds of religion, race, place of birth, residence, language”) – the court fined the men Rs 10 lakh each. The court described its action as a gesture of justice for the followers of the Jain religion.
Dadlani and Poonawalla posted their tweets in August 2016, after the Jain monk addressed the Haryana Assembly fully naked. Jain monks are expected to lead austere lives, which could also involve avoiding clothing. In his speech, the monk Sagar likened religion to a husband and politics to a wife, going on to argue that the latter should always be subservient to the former.
In their tweets, Dadlani and Poonawalla criticised the decision to invite the monk to speak in the state Assembly as well as Sagar’s misogynist comments.
The court on Monday imposed the fine by invoking its powers under Section 482 of the Criminal Procedure Code, which allows it to pass any order for achieving the ends of justice.
This raises an important question: did the High Court harm the right to free speech of the accused by imposing a fine even after finding they had not committed an offence? Can a High Court’s extraordinary powers be used for preempting offences rather than punishing crimes already committed?
The complaint against Dadlani and Poonawalla was filed by a man named Puneet Arora, who contended that their remarks hurt the religious sentiments of Jains and Sagar’s followers.
On the basis of Arora’s complaint, the police registered cases under Section 295A for deliberately outraging religious feelings, under Section 153A for inciting enmity between religious groups and under Section 509 for insulting modesty of women. According to the police, Section 509 was included because Poonawalla’s tweets carried a picture of Sagar along with that of a half-naked woman.
The accused moved the Punjab and Haryana High Court to have the cases quashed. In the meantime, Dadlani apologised to the Jain community as well as to Sagar, who accepted his apology and said he had forgiven him. Despite this, the case was not dropped. Poonawalla did not apologise.
The High Court appointed Sandeep Jain, lawyer and follower of Sagar, as an intervener “to assist the court about the followers of Jain Muni Tarun Sagar”.
In his judgement on Monday, Justice Arvind Singh Sangwan cited several Supreme Court rulings to show the opinions tweeted by Dadlani and Poonawalla did not attract the sections under which the FIRs were registered.
However, acceding to Sandeep Jain’s suggestion that “some deterrent action be taken against them so that they may not offend other Jain Munis” following a lifestyle similar to Sagar’s, the court imposed a fine of Rs 10 lakh on each of the accused.
Justifying the fine, the court said:
“If the contribution made by the petitioners towards poor people is compared to the contribution made by Jain Muni Tarun Sagar, it is apparent that the petitioners have played a mischief to gain publicity without having much to their credit.
In recent years, the country has witnessed large scale violent protest on incitement made by using social media platform, thereby, causing extensive damage to public property.
However, the preachings of Jain Muni Tarun Sagar about non-violence, sacrifices and forgiveness have avoided repetition of such like protest.”
It was appropriate to impose the fine, the court argued, “so that in future they may not mock at any head of a religious sect, just to gain publicity on social media like Twitter”.
There are several contradictions in the court decision. On the one hand, the court decided to quash the cases against Dadlani and Poonawala, stating that offences under the sections cited in the FIRs had not been proved. One of the arguments made by the accused in their defence was that there was no deliberate intention to outrage religious feelings or incite violence – a necessary condition when these the penal sections are invoked.
This means that the court found it appropriate to impose punishment for a crime that was never committed.
Paying the fine on time is a prerequisite for the FIRs against Dadlani and Poonawalla to be quashed. Failing to do so would mean their petitions to quash the cases would be “deemed to be dismissed”. This is another contradiction. If, in the opinion of the court, no offences had been committed, how could the quashing of such FIRs be subject to a fine? It would mean that the accused would be forced to face proceedings despite the High Court ruling that the sections cited in the FIRs do not apply to the case.
Merely ridiculing a religious figure does not amount to a crime, so the court’s justification that the fine would deter the accused from mocking other religious leaders is a clear violation of the fundamental right to free speech. Unless a person violates one of the reasonable restrictions on the freedom of speech placed by the Constitution, they cannot be punished.
Further, the court’s invocation of extraordinary powers under Section 482 to impose the fine appears to be an improper use of the provision. The law envisages the court using the provision to secure the ends of justice. In this case, the court took it upon itself to ensure justice for a group of people who were not a party to the matter.
The fine can also be seen as a preemptive action as it seeks to deter possible future comments by the accused against religious leaders. Such a move will have a chilling effect on free speech and could end up restricting legitimate exercise of the right to free expression.