SC stays HC ban on Fathima

The Supreme Court on Tuesday stayed a blanket ban imposed by the Kerala High Court on activist Rehana Fathima, in November last year, from using any kind of media to express or share her views.

However, a Bench led by Justice Rohinton F. Nariman retained a condition imposed by the High Court earlier, in December 2018, that Ms. Fathima should not use the media to hurt religious sentiments or feelings.

Both the December 2018 and November 2020 orders of the High Court concerned bail granted to Ms. Fathima in a case of committing “deliberate and malicious acts” to hurt religious feelings under Section 295A of the Indian Penal Code.

The case was registered by the Kerala Police against Ms. Fathima for her Facebook posts concerning the apex court’s judgment in the Sabarimala issue allowing women in a certain age group entry into the famed temple.

On December 14, 2018, the Kerala High Court had allowed Ms. Fathima bail on the ground that “she shall not directly or indirectly or through any other person, through print, visual or other electronic media make share forward disseminate or propagate any comment which may affect or has the propensity to affect the religious feelings or sentiments of any community or group of society.”

However, on November 23 last year, the High Court went a step further to add that “till the trial is over accused shall not directly, indirectly or through any other person publish, transmit, share, upload or disseminate or publish any material or any of her comments through any visual and electronic media open to public.โ€

“It is a complete gag,” Justice Nariman remarked to senior advocate Colin Gonsalves, appearing for Ms. Fathima.

Ms. Fathima said the November 23 bail condition was “unreasonable” and “imposed on her a total prohibition on the use of any visual and electronic media.”

“They are not reasonable restrictions envisaged under Article 19(2) of the Constitution… The bail conditions are not only unreasonable, but also disproportionate and arbitrary and, therefore, deprives the petitioner of her right to free speech and livelihood,” the petition said.

It referred to past Supreme Court judgments which had held that “conditions for bail imposed by the court should be guided by the need to facilitate the administration of justice, secure the presence of the accused and ensure that the liberty of the accused is not misused to impede the investigation, oversee the witnesses or obstruct the course of justice.”

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