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Behind the picture: “Is it fear & compulsion or communalism”?

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R. Madhav Bera
R. Madhav Bera
An Advocate practising in Supreme Court , High Court & various District Courts & Tribunals etc. at Delhi.

“Fear is the path to the dark side. Fear leads to anger. Anger leads to hate. Hate leads to sufferings”    …. George Lucas

There are many reports in social, print and electronic media pertaining to incidents of registration of FIR against a Hindu person for not taking delivery from a Muslim in Maharashtra and registration of FIR for fixing of saffron flags in the shops of Hindus in Nalanda, Bihar and writing word “Hindu” in the shops in Jharkhand.[i] When these reports came out in public domain, many people shared their difference of opinion pertaining to the aforesaid activities and against actions of state police and administration on various platforms. As these incident happened amid the incident of deaths of Hindu Sadhus in Palghar, Maharashtra, therefore, pendulum of discussion on topics ‘Communalism’, ‘Religious Authoritarianism’, ‘Religious Segregation’ etc. again started taking its motion in India amid corona-virus.

In the meantime, the controversy gets some more air when media reported a video which shows a BJP MLA From Deora, Uttar Pradesh suggesting it’s citizens in his constituency not to buy fruits and vegetables from Muslim vendors amid corona. As usual, the controversy when reached to the ear of the opposite political parties, many leaders condemned the act as same was according to them; ‘Communal’ in nature and asked authorities to send above MLA in Jail. However, media reports does not suggest whether any FIR is lodged against him or not.  

When media person confronted aforesaid for his controversial statement, he said in his defense that when he visited his constituency, general public informed him that vendors of a particular community contaminating vegetables with saliva. As such, as a part of advisory he asked them to not buy vegetables from them after taking into account all the situations amid coronavirus and there is nothing communal in his speech and remarks.[ii]

That the media reports pertaining to the incidents in which FIRs have been registered do not suggests any reason or about any intention behind the commission of alleged crimes. Further, State police of Maharashtra, Bihar and Jharkhand after registering the FIRs have still not clarified, if there was any such intention behind the offences under which FIR were registered against those people. Furthermore, State police does not discloses the probable theories or reasons behind the offences under which FIRs were registered. It is pertinent to note that accused person Mr. Gajanan Chaturvedi told media that his version was not recorded before registration of FIR and there was no such intention to insult any religious sentiment.

So, through this article a benevolent effort is being tried to make to help the readers to search for the answer “whether it was done under certain fear and compulsion or there was communalism behind these controversial incidents. Readers are advised to read this article with a pragmatic mindset in order to pierce the veil shadowed the actual picture.

Crux of the situations & circumstances amid Coronavirus:

In recent past, there are ample videos and reports circulating on social, print and electronic media which shows some people from a particular community i.e. Muslim were deliberately trying to spread the deadly corona virus in India. There are videos which shows some Muslims were deliberately spitting on foods, raw vegetables, fruits and even on currency notes to contaminate it in order to spread the deadly virus & risking the lives of general public in India.[iii]

Secondly, there are ample reports which shows how Talibaghi Jamaatis were flocked to conduct religious congregation at Nizamuddin, New Delhi and broke safety guidelines issued by both State and Central Government.[iv] The reports also shows how the organizers of the ‘Islamic Congregation’ had tried to hide the whereabouts of the foreign travelers who attended the congregation and also violated the various lockdown measures adopted by the Government for sake of  safety and security of the general public.[v] Further, the nation has also witnessed many unpleasant incidents categorically done by these Jamaatis and other stake-holders of the Islamic Community such as attacks on doctors, spitting and misbehaving with female nurses and para-medical staffs, throwing of urine bottles on roads etc. in various parts of country amid corona virus.[vi]

The country also see various reports on different media platforms about repeated intolerant behavior of these people with the corona warriors in the hospitals and quarantine centers. The nation is also witnessing rise in the graph of corona patients and also deaths occurring throughout the country and it is quite difficult for everyone to neglect the contribution made by these miscreants in this rising graph; though State Minority Commission, Delhi advised State and media not to highlight the contribution of these miscreants anymore for public harmony or any other reasons which are best known to them.[vii] The safety and security of own life and lives of near and dear ones are also haunting day by day as actual causes, symptoms and treatments of this deadly disease are yet to be detected. Therefore, if one summarize all these incidents, it is very common phenomena to develop a sense of fear in minds and act accordingly; although same might sound irrational or immoral to others amid pandemic.

People may come up with an argument that few incidents of nuisance or negligence done by some people, shall not be taken as detrimental factors to generate a sense of fear from a particular community, however, one can also not brush aside this fact that when a large number of people belongs to a certain community identified as a participants to any life threatening act; then whole community falls under a loop. There are also reports about spreading of purported videos or news which are claimed to be circulated to malign Muslim Community, however, falsification of some news or videos does not provide any blanket to the bunch of controversial incidents reported in public domain amid present pandemic.

Rising Actions; Offence & Registration Of FIRs:

During the present pandemic, some reports circulated in different platforms of media that State Police of Maharashtra booked a person u/s 295 of the Indian Penal Code, 1860 (IPC) for not taking delivery from muslim delivery boy. Further, there are media reports which says Jharkhand Police has booked fruit sellers u/s 107 Code Of Criminal Procedure, 1973 for writing word “Hindu” and displaying a banner of Viswa Hindu Parishad on their shops. Similarly, Bihar Police has booked two men alleged to be a member of Bajrang Dal u/s 147, 149,188,153A, 295A & Section 66 of the IT act for planting saffron flags at shops owned by Hindus at Nalanda, Bihar.

The way of operation of state police & administration is very familiar, it again shows when there would be controversy; registration of ‘FIR’ is the only answer or solution to shift the bucket. We all know fear of voice of opposition, media & public perceptions how much haunts police nowadays. Further, registration of FIR without going into the crux of the facts of the case becomes monotonous work of the Police to avoid any controversy. That matters now went to the court and proceedings will be take place according to the law. It may take any number of years to decide whether those person are guilty or not. It is also not certain that we can ever come to know about the ultimate fate of these cases like other cases. However, we are free to use our own intellect to find the answer without being carried with any report or word of mouth i.e. is it Fear or compulsion Or Communalism? 

Is It Fear & Compulsion?

If we summarize current situation amid corona pandemic and series of acts done by the Talibaghi Jamatis and some miscreants belongs to Muslim community, one cannot simply brush aside the fact that yes; there is a sense of fear amongst general public. Secondly, the virus is new to the society and Government has issued many health guidelines which reveals all possible causes for spreading of the virus in the society. Thirdly, there are many inconsistencies in the theories related to causes and symptoms related to this deadly disease. As such, these inconsistencies generates many conceptions or misconceptions about the disease. Moreover, Government has prohibited spitting on public places and wearing of mask become compulsory to control the spreading of this deadly virus. Further, similar advisories were issued by other foreign nations to control the epidemic.[viii]  That it is very normal affair for a common people to develop a sense of fear in his mind after watching videos or reading reports which shows people spitting on vegetables and fruits, currency notes and behaving intolerantly with the corona warriors amid pandemic.

Some reports also suggests some of the videos related to spitting on fruits and vegetables are old and has no relevance to present pandemic. But, we have to accept this fact that spitting on foods or vegetables and fruits before serving or selling is not acceptable practice even in normal course; same is treated as an unhygienic practice. Further, reports of attacking and misbehaving with corona warriors is still continue and same also put a big blot on the entire community. Needless to say this, repeated unpleasant incidents forced many people to lose their faith on that particular community & same also put a big question mark on their intention amid corona virus.  Therefore, a sense of fear is being developed amongst public after watching or reading about all such unpleasant incidents repeatedly committed by the stake-holders of Muslim community.

The sense of fear was clearly felt in the behavior of Mr. Gajanan Chaturvedi when he claimed that his areas is highly effected of virus & the complainant-delivery boy was not wearing mask and continuously touching his face while delivering the goods. This fact reflects that a sense of fear or developed in his mind amid coronavirus & may be the same compelled him to act in such manner.   [ix] Furthermore, accepting or non-accepting of delivery of goods due to any personal reasons does not ipso-facto suggests any intention to insult anyone’s religious sentiments.

Similarly, there is also strong sense of fear among the small vendors who are selling essential commodities such as fruits, vegetables, milk & other groceries etc. Therefore, fear of losing customers & business amid corona virus may be the actual reason which compelled the vendors to put afore-said banners & saffron flags in their shops. The enabling circumstances does not suggests there was any wilful intention to insult any other’s religious sentiments or to create communal riot. Further, there might be many people like Mr. Gajanana who may prefers to buy certain goods from a particular community people due to any personal reason or faith towards the people of that community taking on account all the odd incidents happened amid corona-virus. But, it is not easy for people to configure shops on the basis of religious ethnicity in a fruit & vegetable market where large number of vendors from different religion running their shops. It is pertinent to note that it is not possible for a consumer to check the identity of all the vendors present in the market place. Further, asking for identity from vendors may also be treated as an attempt to insult anyone’ religious sentiments. However if we think broadly, an attempt to make consumers aware about the religious ethnicity to give them a sense of ‘security’ amid corona-virus by hoisting flags or putting banner in shops does not suggests anything wrong or harm to anyone’s religious sentiments. There is no report which suggests those people have put any restriction for the customers to buy goods from the shops run by people of other community. Similarly, no report suggests that any vendor belonging to other community was restricted to sell their goods or their religious symbols & flags in the same market place.[x]   

Is It Communalism?  

The word Communalism is a term used in south Asia to denote attempts to construct religious or ethnic identity, incite strife between people identified as different communities, and to stimulate communal violence between those groups.

The word “Attempt” demonstrates that there must be presence of “mense-rea” & “Actus-Rea” to give any activity or event ‘communal color’. However in the aforesaid cases, the ruling situations and circumstances which are rotating amid corona-virus does not suggests about any theory or role of communalism behind these activities. There is no report which suggests that any prior similar attempt having been made by those persons to outrage communal harmony as alleged. Further, there is no report which suggests any atrocity has been committed towards any people belonging to other community during the commission of aforesaid activities. Per contra, there are strong circumstances & situations in favor of this contention that the alleged acts were carried out due to strong fear of losing their lives & loved-ones, security, loss of business & trade etc.

It is pertinent to mention that concept of putting symbols, marks, pictures, flag etc. to demonstrate a particular religious ethnicity, is not new in our society and same at outset does not score an attack to the sentiments of other religious community.  There are plenty of shops where we can see word “Halal Meat”, numeric numbers 786, Onkar Sign (Central Tenet of Sikh Religious Philosopy) displayed on shops boards & other conspicuous places. It is believed that there is a sense of security generates in the mind of muslims when they see shops mentioning “Halal” as they prefers Halal meat in terms of their religious beliefs. Similarly, no law restricts any consumer from purchasing any goods or preferring shopping from shops of any particular community. Further, choosing a particular shop or outlet is sole discretion of the buyer & one cannot deny purity or security standard of goods/products are always been a detrimental factor behind choosing a particular outlet.

It is very crucial to note that many reputed restaurants and food outlets in India & abroad including Macdonald’s have specifically written in their outset about serving “Halal Meat”. But, no governmental authority has ever taken any coercive against these restaurants and outlets despite protest being raised by the people of other religious communities.[xi] It is pertinent to note that “Halal Meat” controversy does not restricted to India, there were protests against this practice outside India also.[xii] Therefore, marketing of products or outlets by using religious connotations does not ipso-facto outrage or insults religious sentiments of any community as per the law. If we put the aforesaid acts wherein FIRs were registered and legal proceedings had been initiated in similar pedestal, then we can find that same has nothing to do with outraging any religious sentiments or communalism but simply a bonafide act to generate a mark of security or satisfaction amongst their customers amid corona-virus. Therefore, acts and conducts of state police i.e. registration of FIRs against those people without going into the crux of the case is simply denotes their incapability to cope with the odd situations arising due to present pandemic.     

If we analyze these matter from the legal point of view, some settled principle of law, the registration of FIR and subsequent initiation of criminal proceedings is bad in the eye of law. As mentioned above, there must be presence of ‘Mens Rea’ & ‘Actus-Rea’ which are essential elements to constitute a crime. Mens-Rea- ‘Actus non-facit reum nisi mens sit rea is a well-known maxim of criminal law. It means “the act itself does not make a man guilty unless his intentions were so.[xiii] Whereas, in the following cases essential element i.e. mense-rea is absent.  Per contra, there is strong circumstantial evidences which suggests that the acts were under certain fear and compulsion and same occurs due to repeated mischievous acts done by the large number of stake-holders of the other religious community. Furthermore, the maxim ‘actus me invite factus non est mens actus’ supports the doctrine of ‘mens rea’ for no person can be held liable for an act done under fear or compulsion.[xiv]

Further, Section 96 & 97 of India Penal Code, 1860 talks about “Right of private defense of the body and of property”. This section subject to the restrictions contained in section 99 of the said act, provides citizens right to defend his own body and the body of any other person against any offence affecting human body.[xv]

Furthermore, amid pandemic Government has imposed Epidemic Disease Act, 1897 throughout the territory. Section 4 of the Epidemic Diseases Act, 1897 says “No suit or other proceedings shall lie against any person for anything done or in food faith intended to be done in good faith intended to be done under this act.[xvi]

In the light of the above discussion, ending this article with a note: ‘what appears to you may not be true or what not appears to you may be true’. I hope article would help the readers to reach to a definite conclusion.













[xiii] (Prof S.N Mishra: Indian Penal Code: Central Law Publication: Allahabd: 11th edition, 2011)

[xiv] (Bentham, Principles of the Penal Code, P.269.)

[xv] (Prof S.N Mishra: Indian Penal Code: Central Law Publication: Allahabd: 11th edition, 2011)


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R. Madhav Bera
R. Madhav Bera
An Advocate practising in Supreme Court , High Court & various District Courts & Tribunals etc. at Delhi.
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