New Delhi: The Supreme Court bench of Chief Justice Dipak Misra, Justice A.M. Khanwilkar and Justice D.Y. Chandrachud has quashed the FIR registered against actress Priya Prakash Varrier registered at a police station in Hyderabad which alleged the video of a song from her film hurt the religious sentiments of the Muslim community. The picturisation of the song “Manikya Malaraya Poovi” by her in the film, Oru Adaar Love, was considered offensive by the complainant.
Varrier, 18, shot into the limelight after her ‘wink video’ went viral on the internet. A B.Com student from a college in Kerala’s Thrissur district, she sought protection from the Supreme Court.
Varrier contended before the court that the song has been sung in various parts of Kerala since 1978. The song, she claimed, is a mappila song which is a version of a traditional Muslim song from the Malabar region of Kerala. She also argued that she could not be proceeded against for the song, picturised in a film, which is yet to be released.
The Supreme Court noted that the song has been available on YouTube and other mediums as a promotional venture, and has not outraged any religious sentiments so far.
The FIR was lodged by M.A. Muqeeth Khan, an intervener in the case before the Supreme Court. The FIR was lodged for an offence under Section 295A of the Indian Penal Code.
Section 295A of the IPC reads thus:
“Deliberate and malicious acts, intended to outrage religious feelings or any class by insulting its religion or religious beliefs. Whoever, with deliberate and malicious intention of outraging the religious feelings of any class of citizens of India, by words, either spoken or written, or by signs or by visible representations or otherwise, insults or attempts to insult the religion or the religious beliefs of that class, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.”
The validity of the provision was assailed before the Supreme Court and a constitution ebnch in Ramji Lal Modi vs. State of Uttar Pradesh, upheld it. The bench had held in that case that section 295A does not penalise any and every act of insult to or attempt to insult the religion or the religious beliefs of a class of citizens but it penalises only those acts of insults to or those varieties of attempts to insult the religion or the religious beliefs of a class of citizens which are perpetrated with the deliberate and malicious intention of outraging the religious feelings of that class.
“Insults to religion offered unwittingly or carelessly or without any deliberate or malicious intention to outrage the religious feelings of that class do not come within the sanction. It only punishes the aggravated form of insult to religion when it is perpetrated with the deliberate and malicious intention of outraging the religious feelings of that class. The calculated tendency of this aggravated form of insult is clearly to disrupt the public order and the section, which penalises such activities, is well within the protection of cl. (2) of Art. 19 as being a law imposing reasonable restrictions on the exercise of the right to freedom of speech and expression guaranteed by Art. 19 (1) (a). Having regard to the ingredients of the offence created by the impugned section, there cannot, in our opinion, be any possibility of this law being applied for purposes not sanctioned by the Constitution. In other words, the language employed in the section is not wide enough to cover restrictions both within and without the limits of constitutionally permissible legislative action affecting the fundamental right guaranteed by Art. 19 (1) (a) …”, the court had held in Ramji Lal Modi.
In Friday’s order, the Supreme Court held:
“On a keen scrutiny of Section 295A and the view expressed by the Constitution Bench in Ramji Lal Modi, we do not find that the said provision would be attracted in the present case. We are inclined to think so, for the picturisation of the said song solely because of the ‘wink’ would not tantamount to an insult or attempt to insult the religion or the religious beliefs of a class of citizens. The said song has been on YouTube since February, 2018. We do not perceive that any calculated tendency is adopted by the petitioners to insult or to disturb public order to invite the wrath of Section 295A of the IPC.”
The bench also relied on its previous decision in Manohar Lal Sharma vs. Sanjay Leela Bhansali and Others (2018), wherein the Court observed thus:
“A story told on celluloid or a play enacted on a stage or a novel articulated in a broad and large canvas or epic spoken with eloquence or a poem sung with passion or recited with rhythm has many a layer of freedom of expression of thought that requires innovation, skill, craftsmanship and, above all, individual originality founded on the gift of imagination or reality transformed into imagination or vice versa. The platform can be different and that is why, the creative instinct is respected and has the inherent protective right from within which is called artistic license.”
The bench also cited the court’s recent verdict in Mahendra Singh Dhoni vs. Yerraguntla Shyamsundar and Another (2017) wherein the justification for the registration of an FIR under Section 295A had come up for consideration before the court. Appreciating the act done by the petitioner therein, the court quashed the FIR for an offence under Section 295A IPC.
The bench added:
“As we perceive, the intervenor, who was an informant in F.I.R. No.34 of 2018, in all possibility has been an enthusiast to gain a mileage from the F.I.R., though the same was really not warranted. What is urged before us is that picturisation which involves the actress with a wink is blasphemous. Barring that there is no other allegation. Such an allegation, even if it is true, would not come within the ambit and sweep of Section 295A I.P.C., as has been explained in Ramji Lal Modi. In view of the aforesaid, we allow the writ petition and quash the F.I.R. No.34 of 2018. We also direct that no F.I.R. under Section 154 or any complaint under Section 200 of the Code of Criminal Procedure should be entertained against the petitioners because of the picturisation of the song.”
The bench’s ruling is significant, coming at a time when the Punjab legislative assembly unanimously amended the Indian Penal Code to insert Section 295AA to prescribe life sentence for insulting religious scriptures. The amendment has invited serious criticism from the defenders of free speech and civil society.