Expressing One's Understanding Of History Of Prophet Mohammed And His Family Is Not Offence: Madras High Court Had Held

After registering an FIR on Nupur Sharma's complaint about receiving rape and death threats for her controversial remarks about Prophet Muhammed during a television debate, the Delhi Police has given police protection to her and her family.

As per reports, the Delhi Police registered the FIR for offences under Sections 506, 507 and 509 and 153A of the IPC on Nupur Sharma's complaint.

Reaction from Community

After her remarks, multiple FIRs have been registered against her in many states. Many Muslim leaders have come out with open threats against her.

Maulana Mufti Nadeem of Rajasthan threatened to gouge eyes and chop the hands of those who speak against Prophet Muhammad.   

Mohammad Hamid, the president of Iman Tanjeem said during a press conference in Maharashtra that death is the only punishment for the 'crime'. "Kamlesh Tiwari was executed five years after he made objectionable comments on Prophet Mohammad. People stabbed him to death. Don't think you'll be forgiven" he said.

One Advocate M.A.Qavi Abbasi announced a bounty of ₹1 crore for killing Nupur Sharma.

These are only a few videographed reactions to what Nupur Sharma spoke. There are many more such reactions from India and abroad, including from Al Qaeda.

The Case Before Madras High Court

In 2018, an FIR was registered against BJP leader from Tamil Nadu, R.Kalyanaraman for an alleged "disgracing" Facebook post against Prophet Muhammad and his wife. The FIR was registered on a complaint by the Popular Front of India (PFI) in Chennai city, for offences under Sections Sections 153 (1) (a), 295(A), 505 (1) (b), (c) and 505(2) of the IPC.

Kalyanaraman was arrested. He moved the Madras High Court seeking bail. The Court of Justice N. Anand Venkatesh granted him bail.

The Court recorded the argument on his behalf by a senior advocate thus: ".. the entire reading of the publication made in the Facebook by the petitioner, only shows his understanding of the entire history of Prophet Mohammed. The petitioner has not per se abused or made slanderous remarks about the prophet Mohammed. The petitioner has only read the history and had given his understanding/opinion about Prophet Mohammed and his family".

It was argued that the opinion expressed by him is safeguarded under Article 19(1)(a) of the Constitution.

He relied upon a 2016 judgment of the same court regarding a controversial Tamil novel 'Madhorubagan' authored by Perumal Murugan. The novel created a big uproar In Tamil Nadu after some Hindu and caste-based groups object to the depiction of the annual Temple festival of the Arthanareeswarar Temple at Tiruchengode.

It was claimed to be a belief that childless couples who come to the Temple would be blessed with a child. The author names the place, the temple and its festival with minute details in his novel to narrate, as a part of his story, that all married women in Tiruchengode indulge in sexual orgies with men outside their wedlock and childless women get impregnated from such one-night orgies that happen on the fourteenth day of the Temple festival. 

Those opposing the novel before the Court said that "Hinduism itself had come under threat at the hands of the so called progressive writers, Marxists, Periyarists, Pseudo-Christian liberals and Islamists, who have written and published several books ridiculing Hinduism and its saints". FIR was registered against the author and he was compelled to apologise and offer to withdraw the novel from the market. 

Before the Court, though the author said that the novel is fictional, the publisher claimed that it is based on folklore.

The Court relied upon the judgment of the Delhi High Court quashing summons and warrant issued against M. F. Husain for an obscene depiction of a Hindu goddess in his painting, and ruled in favour of the author. The Court issued guidelines stating that the presumption in favour of free speech under Article 19(1)(a) of the Constitution must be kept in mind in case of any complaint against any publication and that it is the state's responsibility to ensure that non-state players are not permitted to determine what is permissible and what is not.

He also relied upon the judgment of the Court setting aside the ban on screening of the film "The Da Vinci Code", which depicts that there was a child born to Jesus Christ and Mary Magdelene after their marriage.

The prosecution argued that he was already on bail in a case for remarks against the community while making the alleged blasphemous remarks. 

Court's Findings

The Court found that the Kalyanaraman had only revealed his understanding of the history of Prophet Muhammed and his wife. 

"A careful reading of the entire article that has been published by the petitioner only reveals the understanding of the petitioner about the history of Prophet Mohammed. This petitioner has not straight away made any derogatory remarks against the Prophet Mohammed. He has only expressed the manner in which, he had understood the history about the Prophet Mohammed and his family", the Court said.

The Court said that freedom of expression always gets challenged when it touches upon religious beliefs. "There were occasions when similar such articles have been written questioning the history of Jesus Christ in the book of "The Da Vinci Code". Even in this state, there are articles written touching upon the life of Seetha in Ramayana", the Court noted.

"It is one thing to make reckless and degoratory remarks against religious beliefs and it is entirely another thing to express the opinion after reading the entire literature/history of various characters who are revered as god or godess in this society", the Court held.

The Court said that not every expression will qualify itself to bring disharmony between various sects or groups and that there is always a presumption in favour of free speech.

"In the considered view of this Court, the petitioner has written his understanding about the Prophet Mohammed and his family after reading the relevant history", the Madras High Court held. 

Nupur Sharma's Remarks

The remark by Nupur Sharma during a television debate, while asking the Muslim side to not make fun of the Shivling that has allegedly been discovered at Gyanvapi Temple by calling it a fountain, was about the age of Aisha at the time of her marriage and consummation of marriage with Prophet Muhammed.

 As per Sahih al-Bukhari, Aisha was six at the time of marriage with the Prophet and nine when the marriage was consummated. This is what Nupur Sharma said. Kalyanaraman, in whose case the Madras High Court delivered the important Judgement, also appears to have remarked on this aspect.

Prophet Mouhammed and his family are widely accepted as historical figures. Hence, as held by the Madras High Court, remarks about the history of the Prophet, including about the age of his wife, cannot be considered derogatory. As observed by the Madras High Court in its order, rights under Article 25 of the Constitution are subject to other provisions of Part III, including Article 19(1)(a).

A Debate That is Required

It is true that there are other interpretations also about the age of Aisha at the time of marriage and consummation of marriage. However, the fact that there is hardly anyone willing to critique Nupur Sharma's remarks or 'fact-check' the same, indicates the fate of cases registered against her when they reach Courts.

One such attempt to critique the remark was by Nabeela Jamil, a lawyer practising in Delhi and an author at Indira Jaising's website The Leaflet, and also Feminism In India. Her opinion published in Scroll.in, starts by arguing that the very debate around the age of Aisha is irrelevant. She talks about the existence of child marriages in different parts of the world, including India and argues that the debate "infantilises" Aisha and reduces her to "just the wife". She elaborates the achievements of Aisha.

However, the author does not seem to understand that the debate has never been about Aisha or her personality or her achievement. Debates about child marriages involving a minor girl and a matured man are about the appropriateness of actions of the man and the family of the girl child. The personality or achievements of the girl child is irrelevant for judging the appropriateness of marriage and sexual intercourse with a child. Ironically, the author tries to bolster her argument by stating that Aisha was from an influential family and was the daughter of the first Caliph of Islam.     

Shockingly, the author goes on to say that Aisha was sexually mature at the time of marriage with the Prophet and that questions about child marriages are questions about morality. 

If there are people, especially those calling themselves feminists, holding such views, this is a debate that our society needs. Indian state should not buckle under pressure from foreign theocratic states and 'sar tan se juda' slogans and curb such debates. 

 [The opinions expressed in this article are those of the author. Verdictum does not assume any responsibility or liability for the contents of the article.]