DNA Edit: Religion cannot be mitigating factor for bail

An order of a single judge bench of the Bombay High Court granting bail to three members of a radical fringe outfit, accused of murdering a Muslim techie in Pune in June 2014, has the unfortunate effect of trivialising hate crimes. Mohsin Shaikh, an engineer, was beaten to death by alleged members of the Hindu Rashtra Sena who were incensed over the defiling of a Shivaji statue. While granting bail, the judge wrote: “The applicants/accused 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 have no criminal record and it appears in the name of the religion, they were provoked and have committed the murder.” The message conveyed by the bail order is disturbing. The court appears to be saying that a murder committed on religious provocation is less heinous than one involving personal enmity.Normally. bail orders are pronounced after factoring in the gravity of the charges, evidence against the accused, the quantum of punishment if convicted of the charges, the possibility of jumping bail or influencing witnesses. Courts also grant bail on grounds of parity with other accused who are already out on bail. Here, the charges against the men include murder, rioting and creating enmity between religious groups. But none of the usual yardsticks were relied upon.

The magnitude of the offence is analysed by the court; but not from a legal or criminological or socio-political perspective, but from the divisive prism of religion. Even if the murder was not pre-planned and the three accused men were instigated by a speech made at a meeting they attended half an hour before, it does not take away from the fact that a horrible hate crime was committed.

When the court says “the fault of the deceased was only that he belonged to another religion” the court is evidently sympathetic to the deceased. But in the very next sentence, negates it by saying that the difference in religion of the victim and the accused becomes “a factor in favour” of the applicants!

In the past, courts have been occasionally sympathetic to accused persons on grounds of age, economic status, gender, marital status, self-defence, and murders committed at the spur of the moment. But religion has never been a mitigating circumstance for bail. If a crime committed upon religious provocation by a mob were to be normalised, it would have disastrous consequences in a country where cases like the Dadri beef-lynching are pending before the courts and those accused of communal rioting largely manage to go scot-free.