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After three bail rejections by a magistrate, sessions court and high court, Supreme Court’s immediate readiness to free comedian Munawar Faruqui should by itself send a signal to all courts that “bail, not jail” should be the judiciary’s primary instinct. Without even scrutinising the violation of fundamental right to free speech, the apex court decided the other fundamental issue: Was arrest necessary? Its markedly different approach is a lesson to courts below.
Madhya Pradesh HC’s Indore bench had preferred to dissect IPC Section 295A against Faruqui that criminalises malicious and deliberate acts intended to hurt religious beliefs. The judge ruled that “under the garb of standup comedy” Faruqui had prima facie violated this section. Such judicial criminalising of humour is worrisome. In contrast, Justices Nariman and Gavai cast Faruqui’s arrest against SC’s 2014 Arnesh Kumar judgment. In it, SC had warned police officers against unnecessary arrests and magistrates against authorising such detentions in non-bailable and cognisable offences prescribing less than seven years imprisonment. Police were directed to certify the necessity of arrests against a five-point checklist: possibility of committing another offence, proper investigation of present offence, preventing evidence from disappearing, threat to witnesses, and possibility of accused absconding.
It is tragic that such eminently sensible prescriptions are neglected. A whopping two-third of the jail population comprises under-trial prisoners. Faruqui and five associates – Nalin Yadav, Edwin Anthony, Prakhar Vyas, Priyam Vyas and Sadakat Khan – spending 35 days in jail, exemplifies the casual disregard for liberties. SC issuing notice to MP on Faruqui’s plea challenging the FIR engenders hope that abuse of Section 295A and in turn the onslaught on free speech can be dialled back. Faruqui and co shouldn’t have needed Supreme Court to free them: a magistrate was sufficient. Amid relief, that’s the souring thought.
This piece appeared as an editorial opinion in the print edition of The Times of India.