10 Jan 2010

Freedom of speech yes, unwarranted religious criticism no: High Court

In a 150 page decision rendered by a three-judge bench, the Bombay High Court has declared that while the Constitution indeed guarantees the freedom of speech and expression to the citizens, it would not extend to allow a citizen to author a book which carries severe criticism of a religion and is directed to stir religious disharmony. 

The High Court was dealing with the validity of a ban imposed by the Maharashtra Government on a book entitled “Islam – A concept of Political World Invasion By Muslims” written by a local author being of the opinion that the author "has made several derogatory and false statements about Muslim religion, Muslim community, Mohammed Paigambar and Muslim priests". The author had challenged the validity on grounds of lack of governmental opinion in the notification banning the book and also it being violative of his fundamental right to freedom of speech and expression as guaranteed by the Constitution. 

Declaring that a balance between the freedom of speech and expression and religious tolerance was vital, the larger bench of the High Court explained the principles as under;
48. Freedom of speech and expression is a cherished right of every citizen. Every person has a right to express what he/she feels about any issue which according to him/her needs to be debated upon or brought before the public eye. Freedom of expression would also include freedom to criticize. Indian democracy has survived because of the protection its Constitution has granted to its people to express freely their views on affairs of the State and on other issues concerning religion, culture, civilization, literature and personalities, which are beyond the mundane affairs of the State. This list is merely illustrative and not exhaustive. Fearlessness is the hallmark of a vibrant, democratic and secular society like ours. We are an amazing mix of people coming from different social and cultural background, people professing different religions and people who speak different languages. While we have a right to criticize each other, the criticism has to be healthy and not malicious. It must not lead to creating ill-will and hatred between different communities. Freedom of expression must be well utilized, it must lead to sensible dialogue but not senseless destruction of lives and property and breach of public order.

54. In our constitutional set up, everything is open to criticism and religion is no exception to it. Every religion, whether it is Islam, Hinduism, Christianity or any other religion, can be criticized. Freedom of speech and expression covers criticism of a religion and no person can be sensitive about it. Healthy criticism provokes thought, encourages debate and helps us to evolve. Counsel submitted that the author has through the book placed his perception of Islam before people. He submitted that the book brings the lesser known aspects of Islam before the public eye. He submitted that the book gives correct insight into Islam, but assuming the author is wrong, he has a right to be wrong.
55. We do not want to join issue with Counsel on this aspect. The author has undoubtedly a right to be wrong. The author can say what he feels is right and if it is wrong, he cannot be punished for it. But what needs to be seen is whether the author has done this exercise bona fide with a real desire to explore the tenets of Islam and give his exposition thereof.
56. An author has a right to put forth a perspective that a particular religion is not secular. This is a view point which one has a right to assert. However, if a book reeks of hatred for a particular community, if it contains rabid material and there appears to be no sincere handling of the subject but a malafide exercise to stir communal passions one must pause and consider whether it is in the interest of general public to allow its circulation. In such a situation restriction imposed on the freedom of speech and expression by the Constitution must spring into action. It is necessary once again to remind ourselves that in Baragur, the Supreme Court has made it clear that no one has a right to impinge on the feelings of others on the premise that his right to freedom of speech remains unrestricted and unfettered and that it cannot be ignored that India is a country with vast disparities in language, culture and religion and unwarranted and malicious criticism or interference in the faith of others cannot be accepted.

The High Court quoted extensively the contents of the book under question and also various Ayats of the Quaran relied upon in the book and otherwise to hold that the book went far that what the right of freedom of speech would cover in as much as it criticized Islam and Prophet to the extent of showing them in poor light. The Court observed,

81. It is not possible for us to agree with Counsel. We have no doubt that the author must be allowed to criticize Islam. Pure and simple criticism without any intention to hurt religious feelings of a particular community must be allowed. But, here the criticism is not academic. The author has gone on to pass insulting comments on Muslims with particular reference to Indian Muslims. That is most objectionable.
The High Court inter alia also set out the principles for testing the validity of a ban on books made by the Government under the Code of Criminal Procedure as under;

a) The Notification must state the grounds of the Government’s opinion.
b) A formal authoritative setting forth of the grounds is statutorily mandatory. Appendix cannot make up for grounds of opinion.
c) Mere repetition of an opinion or reproduction of the Section will not answer the requirement of a valid notification.
d) Grounds must not be stated at learned length. In certain cases a laconic statement may be enough while in others more detailed reasons may be required. Grounds may be brief but cannot be blank.
e) Grounds of opinion must mean conclusion of facts on which the opinion is based. Grounds must necessarily be the import or the effect or the tendency of the matters contained in the offending publication either as a whole or in portions of it, as illustrated by passages which Government may choose.
f) The High Court must set aside an order of forfeiture if there are no grounds of opinion because if there are no grounds of opinion, it cannot be satisfied that the grounds given by the Government justified the order. If in such case, the High Court upholds the order, it would mean that the High Court itself made the order which the High Court cannot do.
g) The High Court must set aside the order of forfeiture if it is not satisfied that the grounds on which the Government formed it’s opinion justify that opinion.
h) The validity of the order of forfeiture would depend on the merits of the grounds. It is not the duty of the High Court to find out for itself whether the book contained any such matter whatsoever. The High Court cannot make a roving enquiry beyond the grounds set forth in the order.
i) The State cannot extract stray sentences of portions of the book and come to a finding that the said book as a whole ought to be forfeited.
j) The matter charged as being within the mischief of the relevant sections of the IPC must be read as a whole. One cannot rely on stray, isolated passages for proving the charge nor indeed can one take a sentence here and a sentence there and connect them by a meticulous process of inferential reasoning.
k) Section 295-A of the IPC does not penalize any and every act of insult to or attempt to insult the religion or religious beliefs of a class of citizens. There must be a malicious or deliberate intention to outrage the religious feelings of a class of citizens.
l) Intention of the author has to be gathered from the language, contents and import of the offending material.
m) If the purpose of writing the book was a historical research based on a number of reference books and other material, it would be difficult for the State to contend that simple narration of history would promote violence, enmity or hatred.
n) If the allegations made in the offending article is based on folklore, tradition or history something in extenuation could perhaps be said for the author.
o) If the writing is calculated to promote feelings of enmity or hatred, it is no defence to a charge under Section 153-A of the IPC that the writing contains a truthful account of past events or is otherwise supported by good authority. Adherence to the strict path of history is not by itself a complete defence to a charge under Section 153-A.
p) Section 95(1) of the Code requires that the ingredients of the offences should appear to the Government to be present. Section 95 does not require that it should be proved to the satisfaction of the Government that all requirements of punishing sections including mens rea were fully established.
q) The onus to dislodge the prima facie opinion of the Government that the offending publication comes within the relevant offence including its requirement of intent is on the applicant and such intention has to be gathered from the language, contents and import thereof.
r) It is not necessary to prove that as a result of the objectionable matter enmity or hatred was in fact caused between the different classes. It is enough to show that the language of the writing is of a nature calculated to promote feelings of enmity or hatred.
s) For judging what are the natural or probable consequences of the writing, it is permissible to take into consideration the class of readers for whom the book is primarily meant as also the state of feelings between the different classes or communities at the relevant time.
t) Whether the objectionable matter is meant for limited circulation, whether it is to cater to ignorant, illiterate inflammable mob or educated people would be a relevant consideration.
u) The effect of the words must be judged from the standards of reasonable strongminded, firm and courageous men and not those of weak and vacillating minds, nor of those who scent danger in every hostile point of view.

Thereupon the High Court declared, "In our opinion, the Notification answers the test of a valid notification inasmuch as it states the opinion of the Government, it states the grounds of the Government’s opinion and outlines the ingredients of the penal provisions which are attracted to the present case. The grounds may be called brief. They are certainly not blank. We, therefore, reject these submissions of the applicant."

Have a look at the decision.

Post-Script Supplement

The Supreme Court has dismissed the petition for special leave  to appeal against this decision of the High Court. Thus this decision attains finality. Have a look at the order  dated 16.0.2010 in SLP (Criminal) No. 2869/2010.

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