Arrests in Maharashtra over Aurangzeb posts: What laws have been used, and why

The arrests

On March 17, Mohammad Momeen, a 19-year-old jute bag seller residing in Savarde village of Kolhapur district, was booked for putting up a WhatsApp status allegedly intended to hurt the religious sentiments of Hindus by supporting Aurangzeb. The following day a police complaint was filed against Momeen and his family was asked to leave the village. After this, the police arrested him under Section 298 (uttering, words, etc. intending to wound religious feelings) and 505 of the IPC (punishes statements conducing to public mischief).

On the same day, another FIR was registered against tempo driver Faizan Saudagar, 23, residing in Minche village of Kolhapur, due to his WhatsApp status referring to Aurangzeb as an emperor who made the impossible possible. Subsequently, an FIR was filed against him under IPC Sections 298 and 295A, which punish deliberate and malicious acts intending to outrage religious feelings of any class by insulting its religion or religious beliefs, and 505(2), which punishes statements creating or promoting enmity, hatred, or ill-will between classes.

Subsequently, on March 21, a third complaint was filed at the same police station against 21-year-old Kudrat Jamadar, a resident of Khochi village, over a similar status.

Two more such arrests took place in Nashik last week. The first incident occurred in Ghoti district, where a Facebook post by one Shoaib Maniyar was said to have sparked tensions in the area, prompting calls for his arrest for hurting religious sentiments. Meanwhile, the second incident pertains to Salim Kazi, a resident of Sinnar, for putting up a video on Aurangzeb as his status.
These developments came in the aftermath of the Centre approving the renaming of Maharashtra’s two cities, Aurangabad and Osmanabad, which are now called “Chhatrapati Sambhaji Nagar” and “Dharashiv,” respectively.

Under what provisions were the arrests made?

The arrests were under Sections 298 (uttering words, etc., intending to wound religious feelings), 295A (punishment for deliberate and malicious acts, intended to outrage religious feelings of any class by insulting its religion or religious beliefs), 505 (2) (punishes statements conducing to public mischief), and 153A (promoting enmity between different groups on grounds of religion, race, place of birth, residence, language, etc., and doing acts prejudicial to maintenance of harmony) of the IPC.

The invocation of these laws, also referred to as “hate speech laws,” has evoked frequent criticism for restricting free speech and misusing the legal process for political purposes.

These sections have a common requirement of “intention” or mens rea to wound religious feelings or carry out malicious acts, among others. Thus, intention is an essential ingredient of the hate speech laws.

Section 153A: What the law says

Section 153A of the IPC penalises “promoting enmity between different groups on grounds of religion, race, place of birth, residence, language, etc., and doing acts prejudicial to maintenance of harmony”. This is punishable with imprisonment of up to three years, a fine, or both.

Enacted in 1898, Section 153A was not part of the original penal code. Instead, promoting class hatred was a part of the English law of sedition, but was not included in the Indian law.

In the pre-Independence Rangila Rasool case (1927), the Lahore High Court acquitted the Hindu publisher of a book that had made disparaging remarks about the private life of the Prophet and had been charged under Section 153A.

Along with Section 153A, Section 505 was also introduced in the IPC.

Section 505: What the law says

Section 505 of the IPC penalises “statements conducing to public mischief”. It is punishable with imprisonment up to three years, or fine, or both.

Within this, Section 505 (2) punishes those who publish or circulate any statement or report containing rumours or alarming news intending to or likely to create or promote “feelings of enmity, hatred or ill-will between different religious, racial, language or regional groups or castes or communities”.

In his 2016 paper, legal scholar Siddharth Narrain noted that Section 505 of the IPC was introduced to “change the existing provision dealing with circulating mischievous reports to shift the burden of proving the truth to the accused”.

In 1969, the offence was widely amended to enlarge its scope and prevent communal tensions. In the same amendment, the offence was also made cognizable, which means a police officer can arrest someone without a warrant.

Section 295A: What the law says

Section 295A defines and prescribes punishment for deliberate and malicious acts intended to outrage the religious feelings of any class by insulting its religion or religious beliefs. It has been widely invoked on a range of issues such as penalising political satire, seeking bans on books, and even political critique on social media.

“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 section reads.

Section 298: What the law says

Section 298 of the IPC awards a maximum of one-year imprisonment or a fine, or both, to those who, with the “deliberate intention of wounding the religious feelings of any person”, utter “any word” or sound or make gestures in front of a person.

How are these laws applied?

Hate speech laws have been invoked under regimes of all parties to crack down on criticism of public functionaries and arrest individuals.

In May last year, Marathi actor Ketaki Chitale was arrested for a Facebook post allegedly defaming NCP leader Sharad Pawar. She was booked under the same provisions in as many as 22 FIRs.
In March 2022, BJP youth leader Arul Prasad was arrested by the Tamil Nadu Police for spreading “defamatory information” about Chief Minister MK Stalin under the same provisions.

Similarly, in February, multiple FIRs were registered against Pawan Khera, the chairman of the media and publicity department of the All India Congress Committee. These FIRs were filed across different states, mentioning offences ranging from criminal conspiracy, imputations, and assertions prejudicial to national integration to promoting enmity between religions. However, subsequently, the top court acquitted him.

Data from the National Crime Records Bureau (NCRB) show that the rate of conviction for Section 153A is very low. In 2020, 1,804 cases were registered, six times higher than the 323 cases in 2014. However, the conviction rate in 2020 was 20.2%, suggesting that the process often becomes the punishment.

What are the safeguards against misuse?

Given that the provisions are worded broadly, there are safeguards against their misuse. For example, Sections 153A and 153B require prior sanction from the government for initiating prosecution. But this is required before the trial begins, not at the stage of the preliminary investigation.

To curb indiscriminate arrests, the top court laid down a set of guidelines in its 2014 ruling in “Arnesh Kumar v. State of Bihar”. As per the guidelines, for offences that carry a sentence of fewer than seven years, the police cannot automatically arrest an accused before an investigation.

In its 2021 ruling, “Patricia Mukhim v. The State Of Meghalaya”, the SC said that the state will have to prove intent for securing a conviction under Section 153A, adding that the “intention to cause disorder or incite people to violence is the sine qua non of the offence under Section 153 A IPC, and the prosecution has to prove the existence of mens rea in order to succeed.” In this case, the court quashed an FIR against The Shillong Times editor, Patricia Mukhim, for allegedly creating communal disharmony through a Facebook post.

“Words used in the alleged criminal speech should be judged from the standards of reasonable, strong-minded, firm and courageous men, and not those of weak and vacillating minds, nor of those who scent danger in every hostile point of view. The standard of an ordinary reasonable man or as they say in English law “the man on the top of a Clapham omnibus” should be applied,” the court also said in its 2021 ruling.