How a Delhi Court Schooled Police on Free Speech

Granting bail to Delhi University professor Ratan Lal, arrested for his comments on the Gyanvapi Mosque case, judge Siddhartha Malik offered a fine lesson on free speech.

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New Delhi: The observations made by Delhi chief metropolitan magistrate Siddhartha Malik on free speech while granting bail to Delhi University assistant professor Ratan Lal, arrested in connection with his remarks on the Gyanvapi Mosque case, articulate what free speech entails.

In the bail order, Malik categorically said a person cannot be construed to have committed a criminal offence if the person has made a comment unpalatable to someone. As a corollary, he said not everything can be seen from the prism of ‘hurt religious sentiments’ to invoke Section 153 A (promoting enmity between different groups on grounds of religion).

In recent years, the particular provision of the Indian Penal Code (IPC) has been used widely, as evidenced by the rising number of cases. From 861 cases in 2015, the number of cases under Section 153A jumped to 3,026 by 2020. The pendency in the same period as regards police investigation rose from 57% to 64%. In 2015, courts completed 66 trials with a low conviction rate of 13%. With 186 completed trials, the conviction rate in 2020 rose to a mere 20%. The numbers also speak for the frivolous nature of these cases, says an editorial by The Times of India.

Due to such cases, which may not stand the test of law eventually, free speech has become the biggest casualty.

Several individuals in the recent past have been penalised for airing their views freely. A couple of weeks before Ratan Lal was arrested, Gujarat MLA Jignesh Mevani was imprisoned in Assam after authorities pressed criminal charges against him for his tweets, which were critical of Prime Minister Narendra Modi.

In another instance, Marathi actress Ketaki Chitale and a 23-year-old pharmacy student were booked for their comments against Nationalist Congress Party (NCP) chief Sharad Pawar. Pawar’s party, NCP, is part of the Maha Vikas Aghadi (MVA) coalition government in Maharashtra.

In November 2018, Manipuri journalist Kishorechandra Wangkhem was charged under the stringent National Security Act for comments critical of Modi and the BJP.

These attacks on free speech are by no means limited to cases where the BJP is involved. Successive governments, both at the Union and state levels, have launched attacks on free speech on several occasions.

Also read: Freezing Sedition Is Great But ‘We Hope and Expect’ Courts to Curb the Govt’s Repressive Impulses

It is in this context, as the Times of India editorial notes, the “four-page bail order [in the Ratan Lal case] should become mandatory reading for police and judicial officers everywhere, especially given these fraught times for free speech”.

Disposing off the bail plea, judge Malik said, “The feeling of hurt by an individual cannot represent the entire group or community and any such complaint regarding hurt feelings should be seen in the context of the entire spectrum of facts/circumstance.”

He then declared, “India is a country of 130 crore people and any subject has 130 crore different views and perceptions.”

While stating he was a “proud follower of Hindu religion” who found Lal’s comments “distasteful”, he also acknowledged others would also have varying levels of disagreement with the remarks. However, he wondered if there was any need to charge him with a criminal offence.

“It is true that the accused did an act which was avoidable considering the sensibilities of persons around the accused and public at large. However, the post, though reprehensible, does not indicate an attempt to promote hatred between the communities,” the judge said.

While acknowledging that police have a role in maintaining public order – which could potentially be disturbed over such remarks – the judge, however, said, ” …[The] court has to employ highest standards while considering the need to send a person to custody.”

On May 20, the professor posted a photo of the so-called ‘shivling’ allegedly discovered in the Gyanvapi mosque compound and used satire to question the authenticity of the discovery. Lal’s post drew on the phallic symbolism of the lingam – symbolism that is as old as the Hindu religion itself and is the subject of numerous scholarly books – and made a joke about the way the Gyanvapi ‘shivling’ looked.

Taking objection to Lal’s remarks, a Delhi-based lawyer Vineet Jindal lodged a complaint with the police saying that the said post was a “derogatory, inciting and provocating [sic] tweet on the Shivling”.

He was arrested on May 20 night and has been charged with promoting enmity and outraging religious feelings.

Lal’s arrest attracted widespread condemnation, as several protests were held outside Delhi University demanding his release. On social media, too, many criticised the stifling of rights and demanded the release of the scholar.