Fundamental Right To Freedom Of Speech Not An Absolute License To Hurt Fellow Citizens’ Religious Sentiments: Kerala HC

‘Persons who take the risk of publication and dissemination of scurrilous and blasphemous messages are not entitled to get the discretion of the court exercised in their favour.’

While rejecting anticipatory bail to a man who posted a comment on Facebook post, insulting members of Islamic community and the prophet, the Kerala High Court observed that the fundamental right to freedom of speech and expression in a secular state is not an absolute licence to injure and hurt the religious feelings and faiths and beliefs of fellow citizens.

Justice R Narayana Pisharadi also observed that the social media provides opportunities for the commission of crimes at a mass level and that the cyber crimes have now become a major threat to the society.

An FIR was registered against Bijumon, who had posted derogatory comments on Muslims and Prophet Muhammad, in a Facebook post. He was charged under Section 153A IPC. He had moved high court seeking pre-arrest bail.

Mentioning wrong provision of law in FIR not a ground to grant anticipatory bail

The high court, though said that offence punishable under Section 153A is not attracted in this case, observed that the comments posted by him in the Facebook insult the members of Islam religion, and thereby would attract Section 295A IPC.

The bench, in this regard, observed: “The fact that the penal provision of Section 295A I.P.C. is not mentioned in the first information report is of little consequence. Mentioning a wrong provision of law in the first information report should not be a ground for rejecting the prosecution case. It should not also be a ground for granting anticipatory bail to the accused. The question is whether the allegations levelled against the accused would constitute an offence and if so, which penal provision is attracted. At any stage of the investigation of the case, the investigating officer could correct a mistake in mentioning a particular section of offence.”

The court then rejected his bail plea on the ground that his custodial interrogation would be necessary to ascertain whether the mobile phone was used by him to post the comments in the Facebook page and also to ascertain whether has got any connection with any fanatic groups or organisations.

Responsible use of the platform in social media has become the need of the hour

The court also observed that cyber crimes have now become a major threat to the society. “Social media provide great benefit to the society. They have brought a revolution in communication. But, they also provide opportunities for the commission of crimes at a mass level. Responsible use of the platform in social media has become the need of the hour. This case is an example for the irresponsible use of the social media to hurt the religious feelings of a class of people in our society,” Justice Pisharadi observed.

The court further observed: “The fundamental right to freedom of speech and expression in a secular State is not an absolute license to injure and hurt the religious feelings and faiths and beliefs of fellow citizens. Persons who take the risk of publication and dissemination of scurrilous and blasphemous messages are not entitled to get the discretion of the court exercised in their favour.”

Madras HC Expressed Same View On Social Media

While rejecting anticipatory bail plea of journalist-turned-BJP leader S Ve Shekher who allegedly shared a derogatory Facebook post on women journalists, the Madras High Court had observed that sharing or forwarding a message in social media is equal to accepting and endorsing the message.

In its order, the high court had said: “Daily we see young emotional boys getting arrested for doing this type of activities in Social media? Law is same to everyone and people should not lose faith in our judiciary. Mistakes and crimes are not same.”