Unwitting, careless, non-deliberate insult to religion without malicious intent to hurt religious feelings not an offence u/s 295A: Bombay High Court

The Goa bench, comprising Justices MS Sonak and MS Jawalkar, of Bombay High Court while hearing a plea observed that the line separating religious sentiment as well as freedom of speech and expression has to be handled more sensitively by the police. In the case Sudheer Rikhari v. State of Goa, the band was performing live in Panaji, Goa for the Serendipity Arts Festival in 2019. The band used to perform live in various cities of India, but in Goa, they were hindered by police for the song Mantra Kavita composed by Vaidyanathan Mishra, a two-time Sahitya Akademi Award Winner poet. The band members Anirban Ghosh, Sumant Balkrishnan, Shiva Pathak, and Nirmala Ravindran contended that the complaint did not specify the offences against them and this amounted to an abuse of the criminal process. 

The Petitioners contention was that their song was an adaptation of the poem whose lyrics were not modified. Advocate Shivan Desai contended that it was an attempt to misinterpret composition and alleged blasphemy by claiming that it hurts sentiments of “hundred crores of India and few million abroad". Additional Public Prosecutor Pravin Faldessai submitted that the burden of proof was on Petitioner to prove for choosing the composition which could hurt religious sentiments of Hindus. 

The Court said that it was wrong that Petitioners were unnecessarily arrested as they refused to apologise at the Police station due to which they were left with no options but to only seek Anticipatory Bail and therefore this constituted ‘an unwarranted assault on creativity and freedom of speech and expression itself’. The Court observed that an unwitting, careless, non-deliberate insult to religion without malicious intent to hurt religious feelings is not an offence u/s 295A. The Court held that ‘the language employed in the section 295-A of IPC is not wide enough to cover restrictions both within and without the limits of constitutionally permissible legislative action affecting the fundamental right guaranteed by Article 19(1)(a) of the Constitution.’

 Criminal Writ Petition No. 71 of 20