A Bombay HC bail order by Justice Mridula Bhatkar, granting bail to three of the men accused of killing Mohsin Sheikh of Pune, opines that a communally motivated murder may be a less serious offence than other murders. Such an observation has dangerous implications – and points to deep-seated communal biases in the judiciary itself.

In June 2014, Mohsin Sheikh who worked in a Pune software firm, was beaten to death by Hindu Rashtra Sena members while he and his friend Riyaz were on their way home after offering prayers at a masjid. The Hindu Rashtra Sena leaders like Dhananjay Desai had held meetings and made provocative speeches calling for revenge for morphed pictures of Bal Thackeray and Chhatrapati Shivaji that were circulating on social media. Mohsin Sheikh had nothing to do with the posts: he had been targeted and lynched to death because he was identifiably Muslim.

Two years later, the main issue is not that several of those accused of murdering Sheikh have been given bail. Of the 17 arrested for Sheikh’s murder, several have already been granted bail on various grounds. The Supreme Court has held that bail may be granted to any accused keeping the following considerations in mind: “(i) whether there is any prima facie or reasonable ground to believe that the accused had committed the offence; (ii) nature and gravity of the accusation; (iii) severity of the punishment in the event of conviction; (iv) danger of the accused absconding or fleeing, if released on bail; (v) character, behaviour, means, position and standing of the accused; (vi) likelihood of the offence being repeated; (vii) reasonable apprehension of the witnesses being influenced; and (viii) danger… of justice being thwarted by grant of bail.”

What is shocking is the grounds on which Vijay Gambhire, Ranjeet Yadav and Ajay Lalge, accused of killing Sheikh, were granted bail by the Bombay HC. The HC order acknowledges that there is strong evidence – including eyewitness accounts - to suggest that these three men did indeed kill Sheikh. But the bail order suggests that the offence may be considered to be of lesser gravity because the accused were motivated by religious discrimination rather than personal enmity.

The bail order observes that “the deceased was wearing a pastel green colour shirt and had sported a beard, and therefore, the applicants/accused and the co-accused targeted Mohsin and his friend …and started assaulting him with hockey sticks, bats and stones.” It goes on to state that “the co-accused Dhananjay Desai was the one who was the speaker in the meeting and he instigated the audience. … the transcript of the speech given by Dhananjay Desai was sufficient to show that he had incited the feelings of the religious discrimination. The meeting was held half an prior to the incident of assault. The applicants/accused otherwise had no other motive such as any personal enmity against the innocent deceased Mohsin. The fault of the deceased was only that he belonged to another religion. I consider this factor in favour of the applicants/accused. Moreover, the applicants/accused do not have criminal record and it appears that in the name of the religion, they were provoked and have committed the murder.”

It seems fairly clear that the bail order is suggesting that killing someone simply because of their religious identity; because he is a Muslim wearing a skull cap and beard; because of communal hatred instigated by someone is a lesser offence than committing murder because of some other motive. Such a reasoning implies that a Muslim’s very identity is a provocation, and that communally motivated killing is a lighter offence.

The bail order also has certain legal implications. Faizal Mustafa of the NALSA observes that “provocation” has a very specific meaning in legal parlance. Mustafa writes, “Provocation must be given by the deceased and he must have said or done something which would have provoked a “reasonable man”. Provocation cannot be claimed against anything which is lawful — to be Muslim, to wear a green shirt or sport a beard has not yet been made unlawful in India. Moreover, provocation cannot be voluntarily sought. Here, the accused, out of their own free will, went to listen to hate speeches at the Hindu Rashtriya Sena event. The order is shocking and dangerous as it rewrites the jurisprudence of provocation.” (‘Not justice,’ Faizan Mustafa, Indian Express January 20, 2017) Justice Mridula Bhatkar ought not to have used the bail order to slip in the suggestion that the responsibility of these three men for the murder is diminished by the fact that they were ‘provoked’ or ‘instigated.’ By doing so the order is paving the way for a lighter sentence in the event of a conviction.

The social and political implications of the order are even more serious. In India, communal and caste lynchings and massacres are rarely punished. Hate speech by political leaders instigating violence is even more rarely punished. And the instances of such violence against Muslims and Dalits are, if anything, on the rise, with representatives of the Government at the Centre and many States trying to rationalize such violence. BJP leaders, admitting that lynchings of Muslims are unfortunate, have often blamed them on ‘provocation’ due to beef eating and so on. For a Court to offer a similar rationale for deliberate communal violence is dangerous.