‘Bail is the rule’ should apply uniformly

Two judicial orders made last week, denying bail to artists who were accused of hurting religious sentiments, are not in conformity with the principle “bail is the rule, jail is the exception’’ nor in line with past thinking and pronouncements on the matter from the higher courts. The Supreme Court did not give interim protection from arrest for the cast and crew of the web series Tandav, who are facing FIRs in many states for allegedly hurting religious sentiments. The Madhya Pradesh High Court denied bail to stand-up comedian Munawar Faruqui and others who are in jail for about a month after being arrested on charges of “insulting Hindu gods.’’ The offending scenes have been deleted from the web series; and the Indore police, which arrested the comedian, has said that there is no video record of him making the alleged offensive jokes.

The right to free speech of citizens is involved in both cases. No right, including free speech, comes without restrictions, and Article 19 of the Constitution also lays down reasonable grounds for restricting it. Hurting religious sentiments does not figure as a ground. The court has held in the past that such an “insult’’ cannot be considered as an offence unless it is done with deliberate and malicious intention, incites violence and threatens public order. Neither the Tandav cast nor the comedian can be accused of this. There is also no uniform standard for hurt to religious sentiments. Something that hurts one person may not hurt others. Artistic freedom, which derives from the citizen’s freedom of expression, is an important part of the society's cultural milieu. It should be protected in the interest of the health of the society. Last year, the Supreme Court had, in the Arnab Goswami case, said that the courts were “the first line of defence against the deprivation of liberty of citizens,” and that “bail, not jail” was fundamental to the legal system. It should have been so in the cases against the Tandav crew and Munawar, too. The Madhya Pradesh High Court, denying bail to the comedian, said that there was no evidence to show that he had not committed the crime and evidence might come up during investigations. That goes against the accepted norm of bail in law.

Harassment of artists, writers and individuals on the charge of hurting sentiments related to religion, caste or community has become the norm now. FIRs against the Tandav crew have been filed in many states. This is a sign of growing intolerance in society and the refusal to accept criticism. It is also a sign of the growing inability to laugh.