ew would
disagree that the acceleration and regular use of hate speech and writing
by men
and women in public life is a new and disturbing phenomenon within Indian
democracy, a trend that can be roughly dated back about 25 years. This is
not to suggest that tendencies towards the calculated and selective use of
venom, stereotypes and demonising of sections of our people were entirely
absent before, specifically since independence. What is noticeable,
however, is the sharp acceleration in the use of hate speech and its
reproduction in writing, and the acceptance or ‘tolerance’ that such use
of hate speech has received among the wider polity. This phenomenon also
actively coincides with the growth in presence and popularity of political
parties and their ‘leaders’ who have tailored their appeal among people by
pitting one section of the population over and above another – in both
spoken word and written manifestos of their political parties.
There are roughly four sections in Indian criminal law and
election law that clearly and unequivocally restrict or restrain the use
of such hate speech and writing and empower the executive i.e. the
government (state and central) and the police as also the judiciary with
the task of enforcing them. Sections 153A and 153B of the Indian Penal
Code (IPC – offences for promoting enmity between different groups on
grounds of religion, race, place of birth, language, etc and indulging in
acts prejudicial to maintenance of harmony or prejudicial to national
integration) and Sections 123A and 123B of the Representation of the
People Act, 1951 (RPA – which, under the definition of a ‘corrupt
practice’, forbids the use of undue influence, appeal on grounds of
religion, promoting enmity or hatred between different classes of citizens
on the ground of religion, race or community and character assassination)
are the most relevant examples.
Quite apart from the fundamental rights to equality, equal
protection by the law, right to life, freedom of expression, association
and residence and freedom to promote, practice and propagate one’s faith
and the rights of religious minorities to run their own institutions, the
consistent and honest application of these sections of the IPC and the RPA
are critical to ensure and assert the protection of basic democratic and
human rights and especially the constitutional rights of Indian religious
minorities. As importantly, the regular application of these sections of
the law in the public arena by actions of the executive and judiciary
whenever violations of these laws takes place is necessary for upholding
the secular intent of the Constitution of India.
The purposes of these sections of Indian criminal law and
Indian election law, apart from being in consonance with all
jurisprudence, law or the Constitution of India, all democratic and
secular, are intended to preserve public tranquillity by containing or
severely restricting those individuals, groups or political parties that
use hatred or enmity as political currency and as a result of such use
perpetrate enmity and the demonising of certain sections of the Indian
people.
In short, the systematic and straightforward application
of Sections 153A and 153B of the IPC at normal times and Sections 123A and
123B of the RPA at election time – provisions that should impel the
executive and the judiciary into prompt action – is vital to both
safeguard and deepen the provisions of equality and justice detailed in
the Indian Constitution and specifically imperative if the secular thrust
of this document is to be enforced.
These principles within our Constitution and other laws
should not merely be upheld when complaints/cases are filed by private
complainants but ought to be enforced by the state, especially the
judiciary, even when the executive or legislative wings of the government
are being pressured or compromised into inaction against the perpetrators
of hate speech and writing. How else can a committed adherence to the
secular fabric of our laws be assured? Today’s unfortunate reality is that
these laws are observed in their breach and violation. It has become the
unprecedented and worrisome norm to let the offenders off and thereby
sanction the corrosive influence of such methods of speech and writing on
public life and public tranquillity.
The continued use and overuse of hate speech has become an
unfortunate part of public discourse today. The police, which is part of
the executive wing that is empowered to preserve public tranquillity, has
repeatedly made claims that the restriction of the legal provision that
stipulates the obtainment of sanction before prosecutions can be
launched against such perpetrators are impediments in their systematically
applying and upholding these provisions of the law. Apart from these
fairly legitimate claims by the police, independently researched and
accepted trends such as the sharp politicisation of the police force – a
trend that over past decades has also been transformed into an abhorrent
lack of neutrality especially when it comes to dealing with members of the
religious minorities – self-restrict the actions of police officials
further.
Political expediency delays the grant of sanction by the
executive i.e. the governments and their legal and judiciary departments,
further. Technical bars that the laws contain – such as periods of
limitation or time bars against prosecutions – do not take into account
the harsh realities of judicial delays for which courts themselves are
either responsible or which are, unfortunately, condoned by the judicial
authorities. And for the litigation that overcomes all these initial
obstacles to make its presence felt in our courts, the judiciary itself
has been wary of clear-cut interpretations of these penal legal
provisions.
What has been the role of Indian courts in promoting
public tranquillity and against the systematic propagation and use of hate
speech and writing that has become the unfortunate and corrosive fibre of
our public life? Has the court ever addressed itself to pivotal and key
questions such as, for instance, ‘should sanction be a necessary
prerequisite for application of these sections of the laws or is it a
limitation provision that is being used by the executive to actually
curtail effective implementation of these sections’? Why cannot the police
be empowered to act independently when such violations of hate speech and
writing are manifested?
Indian courts have been conspicuous by their refusal to
initiate any suo motu action in the matter of use of such hate speech. Our
newspapers, unfortunately or fortunately, regularly publicise the use of
such hate speech by political leaders and other groups so judges cannot
afford to claim oblivion from these disturbing trends. Some crucial
questions arise here. In a democracy, dynamic and diverse, with
multilingual and multi-religious groups, can the courts be immune from
processes at work in civil society?
We are speaking here of the insidious legitimacy being
accorded to hate speech and writing; the continuous, unchallenged and
unrestrained use of such speech and writing whereby the phenomena itself
becomes the active agent for a general, threatening, poisonous and
violence prone atmosphere in public life. There are dozens of examples to
illustrate that hate speech and hate writing are being used as agents
provocateurs in systematically organised rounds of violence against
Indian religious minorities.
The Indian courts delivered four or five historic verdicts
on this issue in the late eighties and nineties. The first such, delivered
by justices SP Bharucha, Hosbet Suresh and Sam Variavar of the Bombay High
Court, made significant headway on these pivotal issues of jurisprudence.
Justice Hosbet Suresh, in the Subhash Desai petition (Subhash
Desai vs Sharad J. Rao, AIR 1994 SC 2277) and Justice SP Bharucha in
the Ramesh Prabhoo case (Ramesh Yeshwant Prabhoo vs Prabhakar Kashinath
Kunte (1996), 1 SCC 130:1996 AIR SCW 652:AIR1996 SC 1113) followed by
Justice Halbe in the Vimal Mundada case, were straightforward in
interpreting certain statements with candidates or their ‘agents’ whether
or not these statements attracted the provisions of the RPA and
constituted an appeal during an election on grounds of religion.
Justice Suresh, in the Subhash Desai case, clearly held
that the speeches made by agents of candidates at electoral rallies,
exhorting workers (of their party, the Shiv Sena) to disrobe Muslim women
in burkhas to ascertain whether they were women were clear threats
to ensure that women would not vote at all. Phrases and speeches like "garv
se kaho hum Hindu hain (say with pride that we are Hindus)" were held
by justices Bharucha and Suresh to attract the penal provisions of these
sections as also 10 speeches made in which a speaker said that the saffron
flag would fly over Kashmir and Islamabad (use of a religious symbol),
speeches that the flame of Hindutva would be lit (if one voted for the BJP/Shiv
Sena candidate) and that the Congress was responsible for the desecration
of temples and the molestation of Hindu women (Justice Halbe).
Barring these judgements – which, incidentally, have
played by far the most crucial role in exercising restraint on the
perpetrators of hate writing and speech, including a bar on Shiv Sena
chief Bal Thackeray’s right to vote or contest an election (July 1999) –
the Bombay High Court and worse still, the Supreme Court have also been
responsible for seriously damaging the history of Indian jurisprudence in
the matter of preservation of public tranquillity and the rule of law with
regard to upholding the applicability of Sections 153A and 153B of the IPC
and Sections 123A and 123B of the RPA.
To substantiate this charge (or claim), the history of two
sets of litigation needs to be traced and understood. One is the history
of an election petition against Shiv Sena MLA and former Maharashtra chief
minister Manohar Joshi, in which Justice Variavar of the Bombay High Court
passed a strong judgement debarring the candidate, declaring his
candidature null and void. Specifically, the judge held that Bal Thackeray
making a speech invoking the ‘dream of Hindutva’ as his agent and the
contents of his appeal were in violation of the relevant sections of
Indian election law.
A three-member bench of the Supreme Court substantively
diluted the high court judgement and averred that "in our opinion a mere
statement that the first Hindu state will be established in Maharashtra is
by itself not an appeal for voters on the grounds of (their) religion but
the expression, at best, of such a hope" (Justices JS Verma, NP Singh, K.
Venkataswamy, Supreme Court, 1995). As a result of this judgement, the
Bombay High Court judgement, which had set aside Manohar Joshi’s election
was itself set aside.
Worse still was the fate and history of a historic public
interest litigation filed by former chief secretary of Maharashtra JB
D’Souza and journalist Dilip Thakore against the state of Maharashtra in a
writ of mandamus asking that sanction be granted for the criminal
prosecution of Bal Thackeray for his blatantly provocative writings
against Bombay’s Muslims which encouraged Shiv Sainiks to launch a
full-fledged pogrom against their lives and property in December 1992 and
January 1993. In December 1992 and January 1993, Saamna, a
self-proclaimed mouthpiece of the Shiv Sena, published a series of
editorials that were prima facie violations of Sections 153A and 153B of
the IPC.
The question before the court was whether the nine
articles cited by the petitioner attracted Sections 153A and B i.e.
whether they promoted enmity between Hindus and Muslims on the grounds of
religion, race and residence.
Abuses, threats and assaults are integral to the culture
of the Shiv Sena and other political outfits and have been shamelessly
used to stifle criticism and browbeat the opposition into silence. Instead
of showing vision and stature during the course of arguments in this case
– a critical one in sharpening Indian jurisprudence on these issues of
rule of law and public tranquillity – instead of having their ears to the
ground and responding to threats and threats of threat with the
fearlessness associated with path-breaking courage – both the Bombay High
Court, which justified Thackeray’s hate speech and writing, and justices
Punchi and Jayachandra Reddy of the Supreme Court, by dismissing the
special leave petition filed in appeal without even entertaining
arguments, failed the Indian Constitution and Indian democracy.
A division bench of the Bombay High Court (justices
Majithia and Dudhat) were, from the outset of the petition’s hearing, more
concerned with extraneous issues surrounding the personality of the
respondent (Bal Thackeray) rather than the crucial legal, ethical and
moral issues that this piece of litigation had raised. In April 1993, when
arguments in favour and against the admission of the petition were being
heard in open court, Vidyasagar Kanade, the advocate for the respondent
issued an unmistakeable warning, "My Lord," he said, "Bombay will burn if
the petition succeeds and sanction to prosecute Mr Thackeray is accorded."
At this stage the state government was given time to respond on whether or
not it had given sanction to the police to pursue the prosecution of the
respondent
Bal Thackeray is the head of a political party that has
repeatedly belittled democracy. Thackeray has repeatedly scoffed at both
the law and the courts: "Main adalaton ke phaislon par laghooshanka
karta hoon (I piss on the judgements of the courts)," he was quoted as
saying in the Saanj Jansatta, June 29, 1995.) Despite these
insults and belligerence on justice issues and the rule of law and
notwithstanding his explicit and crude contempt for judges and the courts,
no suo motu action was initiated against Thackeray for his
provocative ranting. Can criticism of this major lacuna in Indian
jurisprudence and public criticism of this failure by Indian courts to
hold Thackeray accountable for violations of the Indian law attract
‘contempt of court’ provisions when the man who openly professes contempt
for both the rule of law and the courts escapes even mild censure from the
higher judiciary?
For a further analysis of the judicial response to this
litigation, I reproduce excerpts from an exclusive opinion from noted
constitutional expert, the late HM Seervai (dealing with one issue raised
by the judgement): "I will only deal with one gross instance of the
untenable interpretation put on the editorial in Saamna dated
December 9, 1992… At page 37 of the judgement, the court observed: ‘…In
this article, it is true that reference is made to 25 crores of Muslims in
India and relying on this, Shri Setalvad argued that Muslims as a whole
are criticised. It is an admitted position that in fact in India at that
time there were 11 crores of Muslims and therefore the figure given in the
editorial appears to be a typographical mistake and hence from the
reference to 25 crore Muslims one cannot draw an inference that whole dig
in the editorial is against Muslims as a whole. If one reads the editorial
published on December 9, 1992 as a whole, though some caustic language is
used, the dominant impression that the reader is likely to carry is
definitely not ill will, spite or hatred towards Muslims in general but it
may carry ill will and hatred against unlawful behaviour of anti-national
Muslims, including leaders like Imam Bukhari and Shahabuddin.’
"In my (Seervai’s) opinion, the interpretation given to
this exhibit is absurd and perverse. The statement that 25 crore Muslims
was a typographical error is based on no evidence. It does not seem to
have occurred to the judges that the respondents may exaggerate the number
of Muslims in India in order to emphasise the dangers which Hindus and
Muslims would face.
"Further, the passage divides the population of India
between Muslims and Hindus and also states that Pakistan was said to have
seven bombs. The seventh bomb was planted in India because Pakistan need
not lead an invasion of India: 25 crores of Muslims loyal to Pakistan
would stage an insurrection to destroy India. A clearer violation of
Sections 153A and 153B is difficult to imagine.
"In the last two paragraphs, which are not conspicuous for
their clarity in substance, the court said that if sanction were given, it
would reopen wounds between Hindus and Muslims. Public interest required
that sanction to prosecute should not be given. This is contrary to the
evidence on record: ‘Government is prosecuting Shri Thackeray for some
articles. Government is normally a better judge of the public interest.’
"The government of India has ordered the prosecution of a
number of persons, including a member of parliament at the time when riots
broke out principally directed against the Sikh community. Such a
prosecution would open up old wounds but justice demanded that the guilty
should be brought to book.
"In my (Seervai’s) opinion the summary dismissal of the
petition for special leave against the judgement of the Bombay High Court
by justices Punchi and Jayachandra Reddy can only be described as amazing
and subversive of the rule of law…
"The two Supreme Court judges had observed that they
agreed with the high court’s conclusion that it was not in the public
interest that the issue should be raked up. But the two Supreme Court
judges overlooked the fact that in the whole elaborate judgement (except
the last two paragraphs) the court held that the respondents were not
guilty. The necessary consequence of the summary dismissal is that the
Supreme Court confirmed the high court’s conclusion that respondents 3 and
4 (Bal Thackeray and Sanjay Raut, Shiv Sena MP and executive editor of the
Marathi daily, Saamna) were not guilty.
"Justice means justice to both sides in a petition. Not to
decide the guilt or innocence of respondents 3 and 4 is a grave abdication
of judicial duty to uphold the Constitution and the laws.
"For the second reason, namely, that the high court ‘had
its fingers on the pulse of the situation’ and public interest would be
better served by leaving the situation where it was, there is not a title
of evidence that the two judges had their fingers on the pulse of the
situation. On the contrary, the government which must have its fingers on
the situation, did not leave the situation as it was and ordered four
prosecutions in respect of articles published by respondents 3 and 4 and
one Shri Desai (Subhash Desai, publisher of Saamna). In respect of
these prosecutions the government upheld the rule of law…
"In my opinion, the Supreme Court should recall its order,
admit the special leave petition and decide the matter on merits" (Senior
constitutional expert, HM Seervai, in an exclusive legal opinion given to
Communalism Combat and published in CC, January 1995).
On July 28, 1999, a decade after Shiv Sena chief Bal
Thackeray had been found, in four election petitions, to have violated
Indian election law, he was debarred from voting or standing for an
election. The offences committed by Thackeray under Sections 123A and 123B
of the RPA related to seeking votes on grounds of religion and spitting
venom against one section of the Indian population. Unfortunately, it took
10 long years for the election commission (EC) to act on judgements
delivered by the Bombay High Court and the Supreme Court in 1989 and 1995
respectively. Even after the decision was delivered, the term of
Thackeray’s punishment was reduced from six years to two. Moreover, no
restrictions were placed on Thackeray against violating this section of
Indian law yet again, during the concurrent election campaign in 1999.
The offence against which action was initiated was
committed twelve years earlier on November 29, 1987 and later, during
three election speeches made by Thackeray in support of his candidate,
Ramesh Prabhoo, in the course of the same election campaign. Due to
predictable delays in the legal and judicial processes, it took a dozen
years for the guilty to be brought to book. Should not the punishment,
when it was finally applied, have extended, at the very least, to the
entire six-year period for which it was intended? The reduction of the
punishment’s duration (to two years) cannot be an arbitrary decision. This
belittles a grave crime, in this case, the misuse of religion for
political purposes and hatemongering against one section of our people.
More than the letter of the law, its very spirit and
essence has been violated by its tardy application. This spirit, this
essence was then in serious danger of being rendered meaningless since the
EC chose to merely observe a formality and placed no restrictions on
Thackeray’s participation in the Shiv Sena’s election campaign.
The spirit behind this section of Indian election law –
which Thackeray violated – is, surely, that the strident proponents of a
divisive and corrosive agenda during an election campaign should be taught
a severe lesson. When our law-givers framed the law, they believed that a
citizen who committed such an offence should be punished with the highest
indignity, to be divested of that very basic right all citizens are
entitled to – the right to vote and contest an election. Our law-makers
had not then encountered or lived with a Bal Thackeray.
Action was finally initiated 10 years after the Bombay
High Court had found Thackeray guilty of crimes under Indian election law.
In July 1999 a presidential notification based on recommendations decided
unanimously by Chief Election Commissioner MS Gill and his colleagues,
awarded Bal Thackeray the highest possible punishment, stripping him of a
basic citizen’s right for six years.
In 1987, in the first speech for which he was held guilty,
Thackeray appealed "to all my Hindu brothers, sisters and mothers gathered
here to please send the Shiv Sena to the legislative assembly". Unless
they did so, he warned, "It will be difficult for us to live because there
will be a war of religions and Muslims will come…" "Who are these
laandye (a derogatory term for the circumcised Muslim commonly used in
Maharashtra)? They should bear in mind that this country is of Hindus, it
shall remain of Hindus."
His second speech was even more explicit. On December 9,
1987, referring to Prabhoo’s contesting the Vile Parle legislative
assembly seat, Thackeray said, "The victory will not be mine or of Dr
Prabhoo or of the Shiv Sena but the victory will be that of Hinduism…
Whatever masjids are there, if one starts digging below, one will find
Hindu temples." Similar election speeches were made throughout that month.
Since 1987, when the offensive speeches were first
recorded, Thackeray has used several occasions to spew a similar kind of
venom. Several state and national elections have been coloured by his
special brand of campaigning: 1991, 1995, 1996, 1998, 1999 and thereafter.
More than adequate grounds for the EC to act and effectively restrain,
under imaginatively applied Indian election laws, Bal Thackeray’s public
presence in the Shiv Sena’s election campaigns.
The words of both Bal Thackeray in the Saamna and
his editor Sanjay Nirupam in Dopahar ka Saamna, both before and
after these significant verdicts, is testimony to the fact that they have
been encouraged by the courts to carry on with their political projects
based on hate speech and writing. By failing to restrain these tendencies,
the judiciary also plays a role in the destruction of public tranquillity.
For example, on June 27, 2000, in a piece published in Dopahar ka
Saamna and titled "Chori bhi zori bhi (Brazenness of the
thief)", Sanjay Nirupam wrote: "Every child in the country knows that
Muslims are involved in 90 per cent of the anti-national crimes committed
in India. Everyone also knows that 89 per cent of these acts are committed
by Muslims who are either pro-Pakistani or Bangladeshi infiltrators. The
remaining one per cent of this 90 per cent is perpetuated by Muslims who
are forced by poverty, unemployment or other compelling circumstances to
assist the anti-national Muslims… The time has come for swift action now.
Such elements should be dug out from wherever they are, thrashed and
hanged in a public place. If the police faces any legal hurdle in this it
should adopt extralegal methods."
When Hindu pilgrims on an annual pilgrimage to Amarnath
were targeted by militants of the Lashkar-e-Toiba, Dopahar ka Saamna
carried this headline: "Hindi ilakon mein shokh, Muslim mohallon mein
jashan (Hindus mourn, Muslims celebrate)" (Dopahar ka Saamna,
August 1, 2000).
When Mumbai’s citizens protested the Shiv Sena-BJP
government’s scrapping of the Justice BN Srikrishna Commission, Sanjay
Nirupam, in his weekly column, this one titled "Secular worms crawl out of
their holes", wrote: "Mumbai’s French-cut dadhiwalas and
khadidharis (reference to the city’s Marxists, ‘pseudo-secular’
intellectuals and Gandhians) have suddenly found a new business for
themselves. The entire lot of them have been so wounded by the scrapping
of the Srikrishna Commission as if they had been orphaned… Who knows in
which holes these dadhiwalas hid themselves when Mumbai’s
anti-national and pro-Pakistani Muslims butchered mathadi workers
and even attacked policemen who were trying to bring back peace in the
Pydhonie area"(February 3, 1996).
Later the same year, a virulent piece targeting MF Husain
was published in Dopahar ka Saamna on October 6, 1996. Titled "Halkat
Husaini (Base Husain)", it said: "Maqbool Fida Husain, by depicting
Hindu gods and goddesses naked has displayed his innate Muslim fanaticism.
But if he had any guts at all he would have painted the prophet of Islam
copulating with a pig. Then his co-religionists would have cut him into
pieces and thrown his body away." Three days later, a follow-up article
titled "Harami Husain (Bastard Husain)", written by the same
author, appeared on October 9, 1996: "But Hindus, do not forget Husain’s
crime! He is not to be forgiven at any cost! When he returns to Mumbai he
must be taken to Hutatma Chowk and publicly flogged until he himself
becomes a piece of modern art."
In sum, put differently, the systematic use of hate speech
and writing in the context of an India that is a rich, diverse polity
consisting of different sections of Indians, distinguished by class,
caste, community, gender, language and race, these critical sections of
the law cannot simply exist on paper. They need to be vigorously enforced
by the executive and the judiciary to ensure that hate speech is
not used actively, as it has frequently been, to spread venom against a
section of the people thereby demonising individuals belonging to this
section and leaving them prone to physical and mental forms of violence,
exclusion and segregation.
A close scrutiny of judicial commissions of inquiry
probing outbursts of intercommunity violence has shown (see "Who is to
blame?", CC, March 1998) that three-six months before the
outbreak of violence, the crime of hate speech, venom and writing is
committed and used to build up a climate to ensure that the first stone is
cast, that violence does break out. Despite this documented history
of jurisprudence, why do we frequently see a studied reluctance in both
judges and the courts to nip this trend in the bud and thus play a
critical role in cleansing public life of poison and vitriol?
(Extracted from a paper written for the Indian Law
Society, Pune.)