E-Paper
Supreme Court stays high court gag order on Kerala activist
The Kerala Police registered a criminal case against Fathima based on the video under Section 153 of Indian Penal Code (IPC) which amounts to causing provocation with intention to cause riot.
The Supreme Court on Tuesday allowed Kerala woman rights activist Rehana Fathima to post videos or comments on social media sites, with the caveat that none of these are offensive to any group or community.
In February 2020, Fathima uploaded a cookery video on her YouTube channel which has at least one lakh subscribers, that showed her making a beef dish she named “Gomatha Ularthu”. Gomatha is how people in Kerala (and also Tamil Nadu) reverently refer to the cow, worshipped by many. Ularthu stands for roast.
The Kerala Police registered a criminal case against Fathima based on the video under Section 153 of Indian Penal Code (IPC) which amounts to causing provocation with intention to cause riot.
On November 23, the Kerala High Court granted Fathima bail but on the condition that she not publish, transmit, share or upload any material on the visual or electronic media till the trial in another pending case against her was over.
That case, dating back to 2018, involves some photographs she uploaded, including herself, dressed in the black clothes Ayappa devotees wear, but exposing her thigh which the state government’s case against her termed “not in good taste” and “sexually explicit” in a filing to the high court.
A three-judge bench of the top court headed by Justice RF Nariman said the high court’s November order “is a complete gag” , issued notice to the Kerala government and the complainant in the case, and stayed that part of the HC ruling which said, “Till the trial in Crime No. 2405 of 2018 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.”
In her appeal to the Supreme Court challenging the condition, Fathima said, “The above mentioned bail condition is not only unreasonable but also disproportionate and arbitrary and therefore deprives the petitioner of her right to free speech and livelihood guaranteed under Article 19 and Article 21 of the Constitution of India.”
It added that the police could arrest Rehana if this condition was violated.
Senior advocate Colin Gonsalves who appeared for Fathima requested the Supreme Court to stay theis condition as it violated not only her free speech but her liberty as well.
Fathima was a controversial figure who shot into the limelight in 2018, following a Supreme Court ruling by which women of all ages were allowed to enter the centuries-old Ayappa shrine of Sabarimala. Previously only girls under the age of 10 and women over the age of 50 years were allowed to. Fathima made an attept to enter the temple. She also posted the pictures relating to the 2018 case.
In that case, Fathima was released on bail by the Kerala High Court on December 14, 2018. One of the bail conditions required 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.”
The apex court recorded this condition in its order. The bench, also comprising Justices Hemant Gupta and BR Gavai said, “It is made clear that the bail condition No. 3 of the order dated December 14, 2018, which reads as follows (as stated above) to continue.”
In June last year, Fathima was in news again for posting a video of her children, aged 14 and 8 painting on her semi-nude body. A criminal complaint was filed against her for child pornography and obscenity under various sections of the Protection of Children from Sexual Offences (POCSO) and the Information Technology Act. In August last year, the Supreme Court refused to grant anticipatory bail to Fathima and termed her act as “complete nonsense”. The Court held her action to fall within obscenity and accused her of spreading it by circulating the video on the internet. “You are clearly spreading obscenity. It will leave a very bad taste in society,” the Court said then.
