Hate speech in Maharashtra.
Few 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?
http://www.sabrang.com/cc/archive/2008/feb08/pers1.html
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