Supreme Court stays Kerala HC ban on activist Rehana Fathima sharing views on media

Top court, however, retains bail condition that she must not hurt religious feelings

In this file photo, women participate in a candlelight protest demanding that the authorities protect the traditions at the Sabarimala temple in Kerala, at Connaught Place in New Delhi.

The Supreme Court on Tuesday stayed a blanket ban imposed by the Kerala High Court on activist Rehana Fathima 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 that Ms. Fathima should not use the media to hurt religious feelings.

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 top court’s judgment in the Sabarimala issue allowing women in a certain age bracket entry into the famed temple.

On December 14, 2018, the Kerala High Court allowed Ms. Fathima bail on the grounds 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 the public”.

“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 that 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”.