Agonies of prosecution

Agonies of prosecution


Activist Rehana Fathima being escorted by the police to Sabarimala Temple, Kerala on October 19, 2018. PTI

After the historic judgement of the top court endorsing the entry of women of all ages to the Sabarimala temple, the far right wing had attempted to communalise and politicise the faith of the ordinary devotees. The Sangh Parivar, which welcomed the verdict initially, took a U-turn and led the protest accusing the state government for ‘meddling’ with the ‘religious practice.’ 

The Congress-led United Democratic Front (UDF) stood along with the right wing, thereby blurring the difference between the two, as regarding their perspective on the issue. This strange scenario has eventually exposed the reactionary content in the right wing political praxis in the state, to the advantage of the ruling Left Democratic Front (LDF). 

The ruling front could effectively mobilise the organisations with the legacy of the renaissance movement in the state, except the Nair Service Society (NSS). In the process, consolidation of the progressive elements in the socio-political sphere is slowly taking place. The left government has, in express terms, inducted constitutionalism to its official and political discourse.

While acknowledging such positive aspects, it is essential to raise concern over the apparent deficits in the state government’s approach. Evidently, constitutionalism in India in general and in the context of Sabarimala verdict in particular, is counter-majoritarian. In the words of Ambedkar, for the working of democracy “there must be no tyranny of the majority over the minority.”

The government has not so far facilitated even a single woman’s entry to the sanctum sanatorium. That apart, the strange and tragic plight that an activist namely Rehana Fathima had to undergo in her failed endeavour to enter the temple is a sad commentary on the government’s constitutional praxis. Also, it demonstrates how our courts fail during critical situations, when individual liberty is in peril.

The purpose of this piece is not to comment on the method adopted by Rehana to reach the temple or to make an ethical evaluation of her conduct. She, along with a friend from Andhra Pradesh, tried to enter the shrine in a dress code that was akin to the one worn by the constabulary. She was ‘caught’ midway and sent back by the police. It was only belatedly on December 14 that the High Court granted her bail. She was in jail for 14 days.

Also read: Sabarimala: CPM fights faith vs Constitution battle

Rehana Fatima was sent to jail on a charge of blasphemy based on a Facebook post. The allegation was that she uploaded “a picture of lord Ayyappa with a ribbon on the leg of the Lord which was being cut by a woman using scissors.”

There was a further accusation that she “posted her own photograph wearing attire of a devotee of Lord Ayyappa and posed in sexually explicit posture and thereby wounded the religious feelings of devotees of Lord Ayyappa” and thereby, she committed the offence of blasphemy punishable under Section 295A of Indian Penal Code.

Though she earlier applied for anticipatory bail, the Kerala High Court dismissed her application which led to her arrest and detention. She is the mother of two children and an employee at BSNL. Following her arrest, she was also suspended from service. The predicament that she had to face also warrants legitimate scrutiny when constitutional morality is at the heart of discourse.

Every individual, howsoever different or isolated or unpopular, is entitled to her choice. No one has an authority to dictate as to how others should live their lives, imposing ‘external preferences’ as noted by jurist Ronald Dworkin. The idea of justice has to necessarily respect personal freedom. 

Also read: Sabarimala: a big win for women

If Rehana picturised the Lord in a peculiar way which according to her, conveys a sensible message and if she wore an attire that a man could safely wear, whether she should be then subjected to the agonies of prosecution is the moot question.

Anticipatory bail

The High Court while rejecting her plea for anticipatory bail said that “she has no case that she is the devotee of Lord Ayyappa.” The court also relied on her comment that “Sabarimala is not a Hindu place of worship and Ayyappa is not a Hindu.”

The court, in its order of November 16 had referred to another photo of the petitioner in “black attire with ash smeared on forehead and wearing bracelets on her forearms and chains on the neck with beards resembling rudraksha….and posed in a sitting posture exposing her thighs”. The court said that the photograph cannot be stated to be in good taste. The photos, according to the court had “the propensity to wound the religious feelings of the devotees.”

Legally, an application for anticipatory bail requires a freedom-oriented approach as indicated by the Justice Krishna Iyer in Gudikanti Narasimhulu v Public Prosecutor (1977): “Personal liberty, deprived when bail is refused, is too precious a value of our constitutional system recognised under Article 21 that the curial power to negate it is a great trust exercisable, not casually but judicially, with lively concern for the cost to the individual and the community.”

This principle was reiterated by the apex court in Gurbaksh Singh Sibbia (1980) and Siddharam Satlingappa (2010). The activist was also denied regular bail on December 4 by the trial court.

The episode, in turn, exposes the possibility for institutional failure and the potential for misuse of the blasphemy provision. It also throws light on its inherent unconstitutionality. It is her attire and the expression of her idea that led to the charges of blasphemy. When the Sabrimala verdict itself was counter majoritarian, the judgement could not have been practiced in a way appealing to the majority.

It is not even a criticism of faith but a different narrative of the faith that put her in the dock. This is why it is argued that the verdict in Ramji Lal Modi (1957) that endorsed the blasphemy law requires reconsideration.

The constitutional court in critical situations needs to guard itself against majoritarian outbursts and sentiments. Detention of Rehana for being different in the matter of faith emanates unpleasant signals for our democracy.

(Kaleeswaram Raj and Thulasi K Raj are lawyers at the Supreme Court of India)