Comedian Munawar Faruqui has been languishing in jail since 1 January, in a case registered against him by the son of a BJP MLA for allegedly insulting Hindu Gods and the Home Minister Amit Shah. He was further denied bail by the Indore bench of the Madhya Pradesh High Court on 28th January.
The court’s order was primarily based on the ‘video footage’ produced by the prosecution and the statements made by witnesses before the police. However, the video footage submitted as proof by the prosecution was from his earlier shows. As Faruqi hadn’t even started his show the prosecution had no evidence to show that violation had been committed by him. Neither the witness statements nor the video footage refer to the comic show that took place in Indore.
On 15 January, Indore’s Superintendent of Police Vijay Khatri publicly claimed that Faruqui didn’t make jokes on Hindu Gods, or even start his show, when he was arrested by the police. Therefore, there was no evidence to suggest that Faruqui insulted the religious sentiments of Hindus during his set in Indore.
However, instead of holding the prosecution accountable for complete lack of evidence to substantiate the allegations made in the FIR, the court relied upon these unrelated videos to form the prima facie view of commission of crime.
“The evidence/material collected so far suggest that in an organised public show under the garb of standup comedy at a public place on commercial lines, prima facie; scurrilous, disparaging utterances, outraging religious feelings of a class of citizens of India with deliberate intendment, were made by the applicant,” it said.
Through their order the Court has not only relied upon events that did not take place but it also appears to have shifted the burden of denying such events on the accused himself.
Trouble started for Faruqui on January 1 when he was confronted by a mob led by right-wing Hindu groups before the start of his show. He was roughed up and taken to police who arrested him with their Superintendent saying he was about to insult Hindu gods. This is perhaps an unprecedented case where the police have acted because someone had not committed a crime but they thought he would utter a criminal speech and the court has kept such person behind bars without evidence of crime being committed because it thinks the liberty of that person would vitiate the law and order.
Critics have pointed towards communal intent behind the incident and cited other cases where courts have moved swiftly to protect accused in cases of hurt sentiments where the complainants happen to be Muslim. In July 2020, TV anchor Amish Devgun was quickly provided protection from arrest by the Supreme Court for his alleged defamatory statements against Sufi saint Moinuddin Chisti. Similar action was seen in 2018, as the Supreme Court immediately quashed an FIR against an actor for allegedly hurting the sentiments of the Muslim community.
This speedy, pro-speech judicial action is starkly missing from Faruqui’s case where mobilisation has involved Hindutva groups alleging their sentiments have been hurt.
Instead of looking at merits for grant of bail and following the norm of bail and not jail the Court deviated from the established principles and even issued directions to state to ensure that “ecosystem and sustenance of coexistence in our welfare is not polluted by negative forces.”
Faruqui’s case is a unique one where the “insulting” joke has not actually been said but other instances involving comedians like Kunal Kamra have shown that neither the Courts nor the governments are taking any jokes.