On Sunday afternoon, personnel from the Navi Mumbai police swooped in on a mobile phone gallery in Sector 17 of Vashi and picked up an employee Mohd Ali Mohd Hussain (29) and took him to the police station. They registered an FIR, arrested him and later released him with a notice asking him to be available for questioning. His crime? Using a picture of Mughal emperor Aurangzeb as a DP on his Whatsapp. He was booked under IPC sections 298 (uttering words etc. deliberately to wound religious feelings) and 153-A (promoting enmity between different groups on grounds of religion, race etc.). He was arrested, even though, there is no law which prohibits the use of pictures of Mughal emperors. He was arrested on the complaint of an Hindu activist. The FPJ spoke to several advocates to ascertain the legality of the police's action.
Special Public Prosecutor Pradeep Gharat
The ingredients of section 153A are not satisfied in this case, unless there are provocative writings involved. If there are no legal restrictions on posting pictures of Aurangazeb, then it is not considered illegal to post his picture. Otherwise, in the absence of any such restrictions, individuals should be free to post pictures of anyone they choose.
Sr Adv Mihir Desai
It is ridiculous to invoke 153A in this case. Our Constitution gives us Right to Freedom of Speech and Expression. There are various interpretations of history. While no one is claiming that Aurangzeb was great, it is inappropriate to invoke section 153A unless there is deliberate propagation of provocative information about him. Tomorrow someone would put up pictures of Tipu Sultan or Nathuram Godse. Then what? Where do we draw the line? If there is a need to regulate such instances, a comprehensive list of individuals whose pictures should not be posted should be compiled. India prides itself on being a symbol of tolerance, and that tolerance should be demonstrated in cases like these.
Adv Aniket Nikam
Whoever, with the deliberate intention of wounding the religious feelings of any person, does anything then the Indian Penal Code provides for prosecution of such person. But the mens rea (criminal intent) is very essential before invoking such sections.
Adv Siddh Vidya
The arrest is not at all justified unless the police can prove that the youth had the intention to break peace. If the intention is proved, then IPC section 504 can be applied. But, in this case, the police do not appear to have proved the intention.
Adv Rizwan Merchant
The police is within its powers to take action if it apprehends breach of peace. One cannot raise the issue of fundamental rights here, because these rights are not absolute. They come with certain conditions.
Adv Mahesh Menon
People have the right to post anyone's picture as DP in their Whatsapp. It does not amount to an offence. The police action is most unjustified.
