Amidst the fight against novel coronavirus (Covid-19), a news report was published in the Indian Express a few days ago that one Gajanan Chaturvedi in Mumbai allegedly refused to take delivery of groceries from a Muslim delivery boy. The delivery boy reported the incident to police. After a criminal complaint was registered, Chaturvedi was arrested for having hurt the delivery boy’s religious sentiments.

Chaturvedi has clarified that he did not refuse to take delivery on the grounds that the delivery boy is a Muslim, but since he had come from a locality heavily infected with the virus.

However, in this article, I want to concentrate only on legality of the complaint filed and its standing without delving into the religious and/or societal issue.

The complaint has been filed under Section 295-A of the Indian Penal Code, 1860, which provides that whoever, with deliberate and malicious intention of outraging the religious feelings of any class of citizens of India, by words, either spoken or written, or by signs or by visible representations or otherwise insults or attempts to insult the religion or the religious beliefs of that class, shall be punished with imprisonment of up to three years, or with fine, or with both.

What needs to be examined is whether the refusal to take delivery from a person because of his religion amounts to commission of an offence under Section 295-A. The provision very clearly lays down that the insult to religion or religious belief must be with deliberate and malicious intention of outraging the religious feelings of any class of citizens.

The Supreme Court of India in the case of Ramji Lal Modi versus State of UP [AIR 1957 SC 620], while upholding the constitutional validity of Section 295-A, has held that it does not penalise any and every act of insult to the religion or the religious beliefs of a class of citizens but it penalises only those acts of insults, which are perpetrated with the deliberate and malicious intention of outraging the religious feelings of that class.

Insults to religion offered unwittingly or carelessly or without any deliberate or malicious intention to outrage the religious feelings of that class do not come within the section.

It only punishes the aggravated form of insult to religion when it is perpetrated with the deliberate and malicious intention of outraging the religious feelings of that class.

The calculated tendency of this aggravated form of insult is clearly to disrupt the public order and the section, which penalises such activities, is well within the protection of clause (2) of Article 19 as being a law imposing reasonable restrictions on the exercise of the right to freedom of speech and expression guaranteed by Article 19(1)(a).

The Supreme Court has followed the said decision in the case of Mahendra Singh Dhoni versus Yerraguntla Shyamsundar [(2017) 7 SCC 760] and has reiterated that Section 295-A does not stipulate everything to be penalised and any and every act would tantamount to insult or attempt to insult the religion or the religious beliefs of a class of citizens.

It penalises only those acts of insults to the religion or religious belief of a class of citizens which are perpetrated with the deliberate and malicious intention of outraging the religious feelings of that class of citizens.

The said decisions have been followed by the Supreme Court in the case of Priya Prakash Varrier versus State of Telangana [(2019) 12 SCC 432] and it is further held that Section 295-A is not wide enough to cover restrictions, both within and without the limits of constitutionally permissible legislative action affecting the fundamental right guaranteed by Article 19(1)(a) of the Constitution.

For attracting the provisions of Section 295-A, the principles that can be culled out from the consistent approach of the Supreme Court are, (i) deliberate insult to religion, (ii) malicious intent and (iii) tendency to disrupt the public order.

Reverting to the incident in question, can the refusal to take delivery from a Muslim said to be attracting the aforesaid principles for invoking Section 295-A?

While answering this, it must be borne in mind that various parts of Mumbai have become Covid-19 hotspots and the virus is spreading like a wildfire.

Government and civic bodies have been educating citizens on various aspects of the spread of virus and are also advising to avoid physical contact and maintain social distance.

Chaturvedi has explained that the delivery boy had informed that he had come from Naya Nagar, a locality where the spread of virus is high. If the defence of Chaturvedi is believed unquestioningly, the refusal to take delivery is only an effort to avoid contracting the virus.

Such refusal could also be said to be in exercise of his fundamental right to life guaranteed under Article 21.

On knowing the locality of the delivery boy, if there is an apprehension of contracting the virus, is it not expected that he would refuse to take delivery and avoid any sort of physical contact?

The statement made under such circumstances, even if hurtful, can neither be said to be deliberate, malicious or intended to disrupt the public order. In such eventuality, the lodging of complaint itself is wholly illegal.

Even if the defence of Chaturvedi is ignored, does the refusal to take delivery from a person on account of his religion, qualify the tests laid down by the Supreme Court for making out an offence under Section 295-A?

Such refusal may be hurtful to the delivery boy and discriminatory, but cannot attract the penal provision.

The statement does not seem to have any malicious intent and certainly, has no tendency to disrupt public order. Such statement would be covered by constitutional guarantee of free speech and expression enshrined under Article 19(1)(a).

No law in the country provides that a private citizen cannot discriminate on the grounds of religion or otherwise. The refusal to take delivery, even if discriminatory, cannot be said to be illegal or in any event hurtful to invoke penal provisions.

The lodging of complaint and consequential action of arresting Chaturvedi do not appear to be valid and deserve to be quashed. Let us see how the case proceeds and what view is taken by courts.