India : Judiciary Must Not Arrogate Itself On People’s Back. The Govt Must Deliver On Our Constituted Road Map For The Future.


The country is again abuzz with wasteful foolishness in discussing pre-1947 “Hate Speech” laws, entrusting to the Supreme Court the power to adjucate in a matter that should properly be discussed and decided upon in the legislature.

To start with, the Government Of India should have long back reviewed, discussed and debated in Parliamentary Committees, and scrapped as a rule all pre-1947 British mandated colonial era laws, via appropriate Legislative Bill, except those few that still had law and order or justice dispensing value in the democratically vibrant society of post-independent India.

It fails my understanding why have the judges at all admitted the matter for their consideration, when Parliament is the proper forum for thrashing out the appropriateness, or not, of hate speech laws in Indian society today. It is not a matter of mere legalese or scoring vain debating points within closed doors, before a group of few know-all individuals who have hardly acquitted themselves as just or wise enough when it mattered.

It demands an understanding of the kind of society we want for ourselves, between freedom to think aloud about all things around us and the mandated caution not to disrespect or alienate people who are merely pursuing their way of life in our togetherness.

The Law Which Fails The Polity…

The Constitution of India and its hate speech laws aim to prevent discord among its many ethnic and religious communities. The laws allow a citizen to seek the punishment of anyone who shows the citizen disrespect “on grounds of religion, race, place of birth, residence, language, caste or community or any other ground whatsoever”. The laws specifically forbid anyone from outraging someone’s “religious feelings”.

This law has often been criticised for being misused by individuals, people or groups, and even by police and governments, for simply censoring or trying to censor conflicting point of views raised by another individual, people or group, irrespective of their objective merits.

In the case now being debated in the Court, Dr S Swamy avers that the law should be expunged from the statute book because it is too generic, non-specific, to serve any real purpose. The Govt of India argues otherwise.

A blatant example of misuse of law was a blasphemy case filed by the Catholic Church against Sanal Edamaruku, eventually forcing him out of India into exile, for investigating and challenging a report of divine water dripping from the feet of a crucifix at Our Lady of Velankanni church in Mumbai, which he instead correctly attributed to capillary action.

Two things are obvious in this instance : one, the society failed to get together and resolve the matter amicably, politically if needed, between the unreasonably aggrieved party, the Church and its church-goers, and the rationally minded people of the country who have knowledge of established phenomenal laws of nature.

Secondly, the invoked “hate speech” laws contradict another constitutional provision in Article 51A(h) that imposes on every citizen the duty to develop the scientific temper, humanism and the spirit of inquiry and reform.

It is plain to me, then, that it would have been in order if the government had filed a counter case against the first plaintiff — the Church — for violating and hindering willfully a very important social directive we gave to ourselves, by collective agreement and will of all citizens of this country.

By not doing so, the government of the day failed, fell short by far, in doing the needful in discharge of its responsibility in line with its oath to uphold the constituted will behind the State. As did the other vain debating institution which arrogated itself upon the people’s back : the judiciary.

The Law(s)

India’s hate speech law is contained in two constutional provisions : 153(A) and 295(A). For the scope of this essay, both are similar in import, against those who commit any act which is prejudicial to the maintenance of harmony between different religious,

racial, language or regional groups

or castes or communities,

and which disturbs

or is likely to disturb

the public tranquility.

If convicted, they shall be punished with imprisonment which may extend to three years, or with fine, or with both.

Going by the punishment, one would have to presume that the crime under these provisions has a range of implication, from minor to serious or severe, which nature is left for the law court to decide. How, on what basis ? Will it be by spontaneous extent of effect or politicised and manufactured rabble rousing by a determined few over a period of time ?

Also, going by its extreme effect on social health, why is the punished capped at 3 years in prison. As such, the law grossly underestimates the power of the word to vitiate social harmony from within, deep in the very way people think, over time that could prove incubatory until its effect actually explodes into open. Very often, too, the viciousness of the effect never attains closure, and continues to simmer for long, to germinate in secrecy and spread through infecting others who would.

These are a few aspects to the vague, non-specific and ill-thought nature of the hate speech law under discussion. As indeed its legislative and judicial history proves.

Legislative History 

A book, Rangila Rasul, was published in 1927. The book concerned the marriages and sex life of Prophet Muhammad. On the basis of a complaint, the publisher was arrested but later acquitted in April 1929 because there was no law against insult to religion.

The publisher was later murdered in Court by one Muslim fundamentalist, Ilm-ud-din. As a result, Ilm-ud-din was honored by the “religious” but inhumane elements in the community with the honorifics : ‘Ghazi’ and ‘Shaheed’.

Representative advocates of the same elements in the Indian Muslim community demanded a law against insult to religious feelings. Hence, the colonial British Government enacted Section 295(A).

This failure of the governing polity is glaring : of the unrepresentative government wedded to the interests of the Crown which, clearly uninterested in fostering long term goals of social and inter-faith harmony, failed to bring the people together and unite their will to the higher national purpose of common good.

There were composite villages in India, it must be pointed, who knew how to manage such differences better, and they did all the time. They still do, even today. But not the government of the day because it had no interest in furthering amity among people. The unspoken “divide and rule” dictum was a tried and trusted policy then.

From how successive governments have behaved through post-Independence decades, I am not sure if the same divide and rule policy lapsed in August 1947. Not by how the Civil Services cadre have lived and acted, by their priviledged status, and not by the manner in which our judiciary has functioned, in its deified isolation.

Judicial Verdicts Against

In 1957, Supreme Court upheld the decision of a lower court that had found publisher Ramji Lal Modi guilty of publishing a cartoon and an article, which allegedly insulted the “religious” beliefs of Muslims. He was sentenced to 12 months imprisonment and fined under IPC 295A. The Petitioner argued that IPC 295A violated freedom of speech and expression guaranteed under Article 19 (1)(A) of the Constitution and that the perceived offense, of insulting religious beliefs, can be allowed to be committed if it spelled no danger of public disorder.

But the judiciary mistook the raging public debate as being equal to social disharmony, and went along with cognition of primacy to the moral subjectivity of the outraged few. Was it right in doing so, in preventing the communities to learn and evolve into accepting strong, diverse attitudes and opposing views, through letting the views of the silent but reasonable majority prevail in time ?

In 1960, the Supreme Court upheld a decision of Uttar Pradesh government to forfeit all six books written by Baba Khalil Ahmad because it contained derogatory reference to Muawiya, who was governor of Syria and contemporary of Prophet Mohammad, which outraged the religious feelings of Sunni Muslim community.

The judgement raises the same questions : did the judges knew what they were dealing with ? Did they have an adequate sense of the real problem : blind belief, on things thousands of miles far and a millennium in the the past, versus a contemporary discourse penned by thoughtful person, in six volumes, for people to read and form their own views on matters discussed ?

In 1961, the Supreme court found Henry Rodrigues guilty of insulting religious beliefs of the Roman Catholics, and acting with a malicious intention in publishing and printing the same in ‘Crusader’ magazine.

The defendant, who was himself a Roman Catholic, stated that he had criticized certain practices and beliefs of the Roman Catholic Church, which were contrary to what had been stated in the Holy Bible. He further stated that similar views have been expressed in many other well-known works. He was sentenced to pay a fine of Rs. 200/- and, in default of such payment, to undergo simple imprisonment for one month.

In 1984, the Supreme court upheld the decision of Bihar government to forfeit all the copies of book ‘Vishwa Itihas (Pratham Bhag)’ on the ground that it contained derogatory reference to Prophet Mohammad which outraged the religious feelings of the Muslim community. The petitioner, who was the publisher of the work, argued that the author had relied on the authoritative historical works like the “Outline of History” by RG Wells, the “Muhamad at Madina” by W.M.G. Watt and the “Middle East” by S.N. Fisher etc. In discussing the Muhammadan religion he had used his dispassionate expertise as a teacher of history and in fact had praised the Prophet when there was an occasion to do so.

In 2007, R.V. Bhasin’s work “Islam – A Concept of Political World Invasion by Muslims” was banned, and his house in Maharashtra raided, on grounds that it outrages the feelings of sections in Muslim society. In January 2010, the Bombay High upheld the ban imposed by the Government of Maharashtra.

Judicial Verdicts For

In 1990, the Kerala government banned the play “Jesus Christ Superstar.” In 1991, Kerala High Court upheld the ban and observed that its script is against fundamental beliefs of the Christian faith and the presentation of Jesus Christ in the play was “both sacrilegious and blasphemous”.

But in April 2015, the Supreme Court of India quashed the ban and observed that Ban has outlived its utility. The drama has been staged abroad, including Vatican, and is available online.

In 2005, the Supreme court set aside decision of West Bengal government to forfeit all the copies of book “Dwikhandita” written by Taslima Nasreen. The West Bengal government had ordered forfeiture of all copies of the work on the ground that it outraged the religious feelings of the Muslim community.

Judicial Verdict Unknown

Or Yet To Come…

In 2006, seven states including Nagaland, Punjab, Goa, Tamilnadu, and Andhra Pradesh banned the release or exhibition of the Hollywood movie “The Da Vinci Code” (and the book of same name), Later, two of the states lifted the ban under a High Court order.

In February 2009, the police arrested Ravindra Kumar and Anand Sinha, editor and publisher respectively of the Kolkata-based English daily The Statesman, for hurting Muslim sentiments. The police charged Kumar and Sinha under section 295A because they had reprinted an article from The Independent, by its columnist Johann Hari.

Titled “Why should I respect oppressive religions?”, the article stated Hari’s belief that the right to criticise any religion was being eroded around the world. Predictably, Muslim protestors in Kolkata reacted to Hari’s belief by violent demonstrations at the offices of The Statesman.

In March 2015, Karnataka Police arrested Sriram Yadapadithaya based on a complaint filed by Fr William Menezes of Mangaluru Catholic Diocese. The complaint alleged that Sriram’s Facebook comments questioned the basic tenets of Christianity. Flavy D’Souza, president of the Catholic Sabha had urged authorities to take strict action against people who indulge in such acts. The Catholic Sabha had warned that it would resort to agitation if the authorities failed to do so.

Judicial Verdict Clear

The Supreme Court on March 3, 2014, dismissed a PIL by Advocate M L Sharma that sought the Court’s intervention and directive to the Election Commission to curb hate speeches during electoral campaigns. Dismissing the plea, the Apex Court said that it could not curb the fundamental right of the people to express themselves.

At Long Last

Now you know.

And, hopefully, the judges realise.

Freedom of expression includes the freedom to make a reasoned statement of one’s own understanding of a matter, even if it offends the beliefs of others, religious or not.

It does not give one the freedom to desecrate symbols of other people’s faith or insult people who live, think or believe differently.

But the freedom to make a reasoned statement, without meaning to rabble rouse, must be assured.

Yet, what is the Govt of India battling for, and why ? Dr Swamy should be able to point out its puerile bases before the bench in the Apex Court.

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2 thoughts on “India : Judiciary Must Not Arrogate Itself On People’s Back. The Govt Must Deliver On Our Constituted Road Map For The Future.

  1. Reblogged this on Truth Within, Shines Without and commented:

    People have a connect with the Legislature, which can add to, subtract from, or amend the Constitution, and from which the Executive is drawn.

    The Judiciary is appointed by the Executive and can be impeached out of office by the Legislature which, it is worth repeating, is accountable to the people of the land.

    Why, then, does the Indian Judiciary arrogate itself upon people’s back ?

    And, why doesn’t the Executive lead the affairs of this nation in accord with the constituted road-map the people have willed for their future ?

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