The difficulties of being a ‘Suitable Boy’

A Suitable Boy on Netflix became so popular that I found myself no longer suitable in the eyes of my better half, who has ignored me consistently since the show started airing on Netflix. Its quality and story notwithstanding, like most suitable boys in India, this too caught the envious fancy of one too many competing suitable men, who caused a First Information Report to be registered against the executives of Netflix for offence under Section 295A of the Indian Penal Code, 1860 (“offence” for short). For the uninitiated, the offence criminalises behaviour that insults religious beliefs and sentiments with imprisonment of up to three years.

The phrase “insulting religious beliefs and sentiments” can have potentially infinite number of meanings and in a democratic society, enlightened conversations around these meanings are desirable. However, such subjectivity is alien to criminal law jurisprudence, as held by the Supreme Court in Shreya Singhal vs Union of India, in which Section 66A of the Information Technology Act (which also criminalised “offensive and menacing behaviour” undertaken through the means of a computer), was struck down due to its vague and abstract wording by citing its potential for arbitrary application.

While the offence in question has not been declared as ultra-vires the Constitution, its precise scope is discernible by reviewing specific case studies. In Pawan Kamalakar Deshpande vs The State of Maharashtra, the Bombay High Court held that a newspaper/magazine article on terror financing, which also used the picture of a piggy bank while referring to a religious verse/statement, did not qualify as an offence under Section 295A of the IPC, 1860, due to the fact that its primary intent was to convey information about terror financing and not to insult religious sentiments. On the contrary, Telangana MLA Akbaruddin Owaisi remains charge-sheeted as an accused under Section 295A of the IPC for his speech at Adilabad (“Adilabad Speech”) in which he undermined/mocked the strength of the Hindu community, insinuated that Hindus make easy targets for extermination, and denigrated the erotic depictions on certain Hindu temples.

Expression of tender affection between a man and a woman in A Suitable Boy (which, ironically, is celebrated in the very temples of Ajantha and Ellora that Owaisi denigrated in his Adilabad speech), stands on an entirely different footing from the case against Owaisi. However, by charging Netflix executives with Section 295A of the IPC, two forms of behaviour completely different from one another are sought to be fit under the same offence, namely Section 295A of the IPC, 1860. How does one reconcile this paradox?

One resolution would call for acknowledging the mutually exclusive nature of the offence, i.e., if Owaisi’s Adilabad speech is insulting religious sentiments, a man expressing affection towards a woman, albeit the setting in a temple, is not. That would mean having to choose between charging Owaisi or Netflix but not both, with Section 295A of the IPC. If that is not agreeable, then the only way to justify charging seemingly different behaviours with the same crime is to argue that the wording of the offence is abstract enough to apply to them both. That would, however, ripen the case for the courts to strike down the very provision of Section 295A IPC as unconstitutional by following the precedent set by the Supreme Court in Shreya Singhal vs Union of India.

When the case against Netflix is standing on such a weak wicket, it raises legitimate concerns for India as an investment destination for Over the Top (OTT) businesses. As Yuval Noah Harari notes in his seminal work Sapiens, the economic success of Netherlands over Spain during the days of colonial aspirations, particularly as an investment destination, arose out of the assurance of the integrity of the rule of law. The casual manner of charging Netflix for a crime that is seemingly unsustainable deters further investments in the OTT sector and inspires negative perception of the strength of the rule of law in our country.

It also calls into question the role of law enforcement in the ideological battles of our times. The antidote to the vitriolic left-right/liberal- conservative political discourses around the globe is law enforcement acting as a referee administering and moderating the debate with the rules and tenets of the Constitution without taking sides. This is the essence of a secular republic. If we are to accept that it is desirable for the police and law enforcement to remain neutral but vigilant referees in our ideological discourses, then we must also be critical of law enforcement when they take sides in the liberal-conservative debates at the expense of compromising the objectivity and integrity of the rule of law.

(The writer is Partner, Factum Law)