At a time when the Supreme Court shied away from defending the freedom of expression of author Mate Mahadevi, whose book was banned by the Karnataka government on the grounds that it was likely to outrage the religious sentiments of the followers of Lord Basavanna, the Bombay high court’s order quashing the first information report (FIR) in a similar case comes as a whiff of fresh air.
The high court bench comprising Justices Sadhana Jadhav and Ranjit More held in a case on September 21 that Section 295A of the Indian Penal Code does not penalise any or every act of insult but it penalises only those acts of insults which are perpetrated with the deliberate and malicious intention of outraging the religious sentiments of that class.
The petitioner before the high court was Vineet Kacker, a ceramic artist who had sought the quashing of the FIR registered against him in 2008 for exhibiting the kharaus (slippers) made from ceramic stone upon which the images of Hindu gods and goddesses were sketched. The FIR alleged that his work had hurt the religious sentiments of the complainants.
In 2008, Kacker had put up an open exhibition titled ‘(R)evolution, A Solo Exhibition of New Ceramic’ at the Chhatrapati Shivaji Maharaj Vastu Sanghralaya in Mumbai. Jeetu Hinduja, the organiser of the exhibition, was a co-accused in the FIR.
The complainant Arvind Gawde, a functionary of Maharashtra Navnirman Sena, while observing the artworks, had found replicas of three pairs of kharaus made from ceramic stones kept on the table in one corner of the gallery. Next to the table were four more replicas of the kharaus kept on the floor. Upon close observation, Gawde found that images of various Hindu gods and goddesses were sketched on the replicas. He, therefore, alleged that religious sentiments of him and his friend’s (who had accompanied him) had been hurt, and thus lodged the FIR.
The prosecution alleged that the petitioner deliberately and maliciously intended to outrage the religious feelings of the public at large by depicting the images of the Hindus gods and goddesses on the kharaus.
Kacker petition claimed:
“The inspiration for this work of art is that while different followers talk different philosophies, the underlying truth is one and all human beings have a responsibility to walk on the path towards this truth. To demonstrate his vision and his viewpoint, the artist has referred to Lord Bharat keeping a khadau of Lord Rama for the purposes of worship and correct inspiration.”
The high court bench held that from the FIR, two things were clear. Firstly, the kharaus made from the ceramic stones were kept on the table in one corner and secondly, only upon minute observation had the respondent found the images of various Hindu gods and goddesses sketched on them.
The high court concluded that the images of Hindu gods and goddesses, which were sketched on the ceramic kharaus, were not displayed prominently. The high court, therefore, held that it was not the petitioner or the organiser’s intention to outrage the religious sentiments of any class of citizens.
“At the most, it can be said that the religious feeling of the respondent No.2 and his friend who had visited the said exhibition were hurt. However, that cannot come within the purview of Section 295A of the IPC,” the high court held in its order.
More importantly, the high court pointed out that the kharaus were not meant to be worn by anyone, and therefore, there was no question of outraging or hurting anyone’s religious sentiments.
The high court further observed:
“It appears that the alleged offending work of art is an artistic expression of the petitioner and, a piece of skill, which demonstrates his vision and viewpoint. It does not contain any deliberate malice and neither is it an attempt to insult the religion or the religious beliefs of people belonging to any class of society.”
Applying the rationale behind the Supreme Court’s previous decisions in Ramji Lal Modi vs State of Uttar Pradesh (1957) and Mahendra Singh Dhoni vs Yerraguntla Shyamsunder (2017) to the facts and circumstances of the present case, the high court held that no cognizable offence punishable under Section 295A of the IPC had been made out or disclosed.
The high court also found that this case is similar to another petition seeking a prohibition on affixing pictures of gods and goddesses of Hindu religion on the firecrackers. The high court in that case (Bhau Shankarro Suradkar vs State of Maharashtra, 1999) had dismissed the petition by observing that there was no intention of hurting anyone’s feelings by selling such fire crackers or by bursting such firecrackers and had ultimately dismissed the petition. “This decision is also applicable to the facts and circumstances of the present case as there was no malicious intention on the part of the petitioner,” the high court observed.
The bench, therefore, held that the continuation of the criminal proceedings against the petitioner is an abuse of process of law, and quashed the FIR against the petitioner and the co-accused, Hinduja. It allowed the petitioner to apply for return of the kharaus which were seized by the police during the investigation.