THEMES

Crime and Punishment
January 1, 1995
Crime and Punishment
Hate Speech and the Indian Courts (1993)
Legal luminaries H.M. Seervai, Nani A. Palkhiwala, Fali S. Nariman, Soli Sorabjee and Hosbet Suresh express shock and dismay at the Supreme Court’s dismissal of the special leave petition against the Bombay High Court’s failure to direct the government of Maharashtra to prosecute Saamna for inflammatory writings. Plus an appeal to the Chief Justice of the highest court in the land echoing constitutional expert Seervai’s plea for a re-opening of the case
 
'SC should recall its order'

 
'Communalism Combat' requested Mr. H.M. Seervai, distinguished jurist, author of the leading commentary on the Constitution of India and the former advocate general of Maharashtra to give his legal opinion on the judgement of the Bombay High Court J.B. D'Souza v. State of Maharashtra and the order of the Supreme Court in that case. We reproduce below Mr. Seervai's opinion, abridged slightly for reasons of space.

After the demolition of the Babri Masjid on December 6, 1992, there was unprecedented violence in Bombay against Muslims in early January, 1993. It was rightly believed by responsible citizens who had gone around the city to ascertain what had happened and who were trying to restore communal harmony, that the police not only did not take action against the rioters but in some cases assisted them….

 ….During December 1992/January 1993, Saamna published a number of editorials which prima facie were a clear violation of Sections 153A and 153B of the I.P.C.

The law in England as to the duty of government to enforce the law has been dealt with in Reg. v. Commissioner of Police of the Metropolis Ex p. Blackburn (1968) 2 Q.B. 118. Lord Denning, M.R. observed: “…There are some policy decisions with which, I think, the courts in a case can, if necessary, interfere. Suppose a chief constable was to issue a directive to his men that no person should be prosecuted for stealing less than 100 pounds, I should have thought that the court would countermand it. He would be failing in his duty to enforce the law. After the decision of the House of Lords in Kursall Casino Ltd. v. Crickitt (1966) 1 W.L.R. 960, the commissioner of police announced that "it is the intention of the metropolitan police to enforce the law as it has been intended'...” (Salmon, L.J. and Edward Davies L.J. agreed with Lord Denning, as to the contention that a mandamus should be refused because Mr. Blackburn had an equally effective and convenient remedy,) Salmon, L.J. said: “It seems to me fantastically unrealistic for the police to suggest, as they have done, that their policy decision was unimportant because Mr. Blackburn was free to start private prosecution of his own and fight the gambling empires, possibly up to the House of Lords, single-handed”: ibid. p.145.

Edmund Davies L.J. agreed…observing that “only the most sardonic could regard the launching of a private prosecution….as being equally convenient, beneficial and appropriate and the procedure in fact adopted by this appellant”.

I have cited this decision of a most distinguished master of the Rolls, Lord Denning and his distinguished brother judges to show that no general policy can override the law, and further that the rule of law must be upheld and enforced by the appropriate authority…
In the context of what I have said above, a question arises as to how power conferred on public authorities in connection with the administration of justice is to be exercised. Justice Jaganmohan Reddy for himself and Palekar J. gave the answer in M.N.S. Nair v. P.V. Balkrishnan AIR 1972 SC  496.…. (Referring to section 494 of the Criminal Procedure Code which permits the prosecution to withdraw from the prosecution), Justice Jaganmohan Reddy observed….

 “… It is the duty of the court also to see in furtherance of justice that the permission is not sought on grounds extraneous to the interest of justice or that offences which are offences against the state go unpunished merely because the government as a matter of general policy or expediency unconnected with its duty to prosecute offenders under the law, directs the public prosecutor to withdraw from the prosecution and the public prosecutor merely does so at his behest”: ibid. p.499 (emphasis supplied)….

Jaganmohan Reddy J. rightly observed that the delay caused by the accused by repeated revisional applications could not ensure for the benefit of the accused. Since the judgement of the division bench in Shri D'Souza's petition referred to the “delay” which had taken place in hearing the petition, it may be observed that the petitioner, i.e. Shri D’Souza and his co-petitioner were not responsible for the delay. The Criminal Writ Petition was filed speedily in April 1993. The petition was adjourned for the government to communicate to the court whether it had granted permission to prosecute Respondents 3 and 4 in respect of certain articles for which the police had filed complaints in the magistrate's court, and asked for government's sanction. On June 8, 1993 government stated that sanction had been given. On June 14, 1993 the writ petition was admitted with liberty granted to apply to the chief justice for an early date. (Thereafter the delay in the hearing took place because of the court not having given time or the respondents asking for an adjournment).

(Mr. Seervai refers to the fact that an affidavit was filed on behalf of the state to oppose the admission of the petition in April 1993. This affidavit was filed by an under-secretary in the home department, Shri Kumavat, and refers to the fact that the affidavit mentions that the question as to whether prosecutions should be sanctioned in respect of some complaints filed by the police were referred to the law department. This shows that whether or not sanction should be granted raises a question of law and being a question of law it is the law department which gives the necessary advice. Ultimately, sanction was given in those cases because the opinion of the law department was that as a matter of law the articles violated the provisions of section 153A)….

It would be convenient at this place to consider what test is to be applied by a court in considering whether the articles published in a daily newspaper violate the provisions of sections 153A and 154B. Saamna, a daily newspaper had a wide circulation. The petitioners did not complain of one article but of a number of articles on the same theme.

The question whether those articles promoted enmity between Hindus and Muslims on the ground of religion, race and residence etc. has to be determined on how the general readers of those newspaper would understand those articles and not how a court after elaborate analysis and argument by counsel on either side considers to be the effect of those articles.

It should be borne in mind that the articles complained of had been spread over two months and dealt with acute controversies such as the demolition by Hindus of the Babri Masjid. The ordinary reader of Saamna, or of any other daily newspaper is not given to an analysis of articles, parts of which are complained of by a petitioner.

No doubt as a general rule, any article complained of must be read as a whole. But there are situations in which certain passages and their effect of producing enmity between communities are so strong that no context would prevent those passages from inflaming communal enmity between Hindus and Muslims as will appear later. That was the test which the court had to apply in Shri D'souza's petition, and which the court failed to apply….

Before dealing with the passages complained of and the manner in which the division bench dealt with those passages, the stand taken by the government for not taking action to prosecute Shri Bal Thackeray and Shri Raut for publishing the paragraphs set out in Shri D'souza's petition requires consideration.

The Government was in a dilemma. No officer of the government could say that what was stated in Shri Kumavat's affidavit was false, for it was stated by him to be true to the best of his own knowledge. However, the government was determined not to grant sanction to prosecute Shri Bal Thackeray and Shri Raut and the procedure described by Shri Kumavat would have required the home department to process the case and then send the case for the legal opinion of the law and judiciary department.

A department which gave as its opinion that the articles in Saamna which attacked Muslim police officers violated the provisions of sec. 153A would, a fortiori, give it as its own opinion that the nine articles complained of in Shri D'Souza's petition which attacked Muslims and Muslim community generally violated the provisions of section 153A and sanction to prosecute should be given.

The summary dismissal of the petition for special leave against the judgement of the Bombay High Court by Justices Punchi and Jaychandra Reddy can only be described as amazing and subversive of the rule of law.                                               

Government devised the expedient of getting Shri Ulhas V. Manjrekar, deputy secretary to the government of Maharashtra (general administration department) to file an affidavit replying to the petition on merits after it had been admitted, although the question of granting sanction to prosecute persons under section 153A were dealt with by the home department.

Shri Manjrekar stated that he was filing the affidavit “on the basis of concerned files of my department which I have carefully pursued”. Shri Manjrekar appears to have realised that the records of home department on which Shri Kumavat had relied on behalf of government in his affidavit of April 29, 1993 were directly relevant in replying to the petition on merits after the petition has been admitted.

Therefore, he began paragraph two of his affidavit thus: “At the outset I reiterate and Confirm what Shri D.T. Kumavat, Under secretary to the government of Maharashtra, home department, Mantralaya, Bombay has stated in his affidavit dated April 29, 1993". By reiterating and confirming Shri Kumavat’s affidavit at the outset, he incorporated that affidavit in his own affidavit.

In paragraph two of his affidavit, after the first sentence, Shri Kumavat’s affidavit must be set out. When this is done, Shri Manjrekar, without realising it, has shown that the government has acted mala fide when instead of referring the question of sanctioning the prosecution of Shri Thackeray and Shri Raut to the law and judiciary department for its legal opinion, the government decided not to prosecute them for the reasons set out by Shri Manjrekar in his affidavit.

The government was the first respondent to Shri D'Souza's petition, and it's sidetracking the law and judiciary department whose legal opinion was required, before sanction to prosecute under section 153A (and 153B) was given. This gives rise to the inference that if the government did not seek legal opinion, it was because that opinion would have clearly indicated that the passages complained of in Shri D’Souza’s petition violated the provisions of sections 153A and 153B and sanction to prosecute them should be granted.

A part from what I have said in the above paragraph, there is an inherent contradiction in Shri Manjrekar's affidavit, which also shows that the government knew that the passages complained of in Shri D'Souza's petition violated section 153A. Shri Manjrekar states in his affidavit in reply, that “I reiterate that the government of Maharashtra carefully scrutinised the material published by the Marathi daily Saamna in its issue of 2nd, 5th, 8th, 9th and 15th December 1992 and 1st, 5th, 8th, and 9th January 1993…Prosecution of the editor and printer of the daily has already been sanctioned in 4 cases by four separate orders dated 9th June 1993. The government has taken a decision that the alleged objectionable material may be used as evidence at the time when the four cases in which the prosecution has been sanctioned come up for trial and hearing” (emphasis supplied). The prosecution in the four cases was sanctioned as violating section 153A of the IPC, namely for promoting enmity between Hindus and Muslims. If the 9 passages complained of in Shri D'Souza's petition are to be used as evidence in support of articles which violated section 153A, it must follow that the government realised that these passages violated section 153A and such violation would be further evidence in support of the prosecution in the four cases, namely, that the writings there complained of violate sec. 153A.

  If the 9 passages complained of did not violate the provision of section 153A, they could not be used to support the prosecution – those passages would be irrelevant. This is an admission on the part of the government that these 9 passages violated section 153A and instead of prosecuting Shri Bal Thackeray and Shri Raut in respect of these passages, the government arbitrarily declined to do so.

Shri Manjrekar stated in his affidavit that since “the government has referred the matter to the Press Council of India, it would be advisable to await the decision of the press council” is an attempt to show that the government was not inactive.

 However, first, the Press Council is not the authority to advise the government whether or not to grant sanction to prosecute under the sections 153A or 153B. The proper authority, as Shri Kumavat pointed out in his affidavit, was the law and judiciary department. This is clear from the government's own action in respect of granting its sanction to prosecute Shri Thackeray, Raut and Desai without referring the matter to the Press Council, but after obtaining the legal opinion of the law and judiciary department.

In my opinion, the affidavit of Shri Manjrekar clearly established that the government knew that the nine passages complained of violated the provisions of section 153A but was determined not to prosecute Shri Thackeray and Shri Raut. Since the power to grant sanction is conferred on government, it must be exercised in good faith and in furtherance of the object of the law, namely sections 153A and 153B.

What I have said about Shri Manjrekar's affidavit shows that government acted mala fide and refused to grant sanction although it knew that the nine passages violated section 153A. The division bench has not realised the effect of Shri Kumavat's and Shri Manjrekar's affidavit. On those affidavits it is clear that government acted mala fide in respect of granting sanction to prosecute in respect of the nine passages complained of after impliedly admitting that they violated section 153A, and could be used by the prosecutor in the four prosecutions against Shri Thackeray, Raut and Desai
In my opinion, on the affidavits of Shri Kumavat and Shri Manjrekar, the division bench should have issued a writ of mandamus directing government to grant its sanction to prosecute Shri Bal Thackeray (respondent 3) and Shri Raut (respondent 4) for violating sections 153A and 153B, IPC.
Reverting to the affidavit of Shri Raut in April 1993 purporting to be on behalf of himself and Shri Bal Thackeray, it was stated, "I am filing the affidavit on behalf of both of us “for the limited purpose of opposing the admission” (emphasis supplied). After the petition was admitted, liberty was given to the respondents to file their affidavits in reply to the petition. Neither Shri Thackeray nor Shri Raut has filed any affidavit in reply.

The division bench was under an obligation to issue a writ of mandamus directing government to give its sanction. The side-tracking of the legal department, the referring of the matter to the Press Council of India which was not the body to give legal opinion, the implicit admission (by the Maharashtra government) that these passages violated provisions of section 153A and that they could be used by the prosecutor in the four prosecutions already sanctioned show beyond any doubt that these passages violated the provisions of both sections 153A and 153B and the government mala fide declined to prosecute respondents 3and 4.


The effect of this failure to file an affidavit in reply has not been appreciated by the division bench. By rules of pleading the omission to file affidavits in reply means that the averments in the petition remain un-traversed and must be accepted as correct by Shri Thackeray and Shri Raut.
 In Shri Raut's affidavit of April1993 (para 7) he says:” Without prejudice to the above, I say that none of the editorials, exhibits A to I, attract the prosecution of respondents 3 and 4 as they have exercised their freedom of expression and commented upon current affairs objectively.” This defence was open to them at the hearing of the petition, but I have already shown that the freedom of expression does not justify publishing articles violating the rights of every person to practice, profess and propagate his religion and insults to the religious feelings of communities. Such offences have not been tolerated by the Supreme Court.

It should be noticed that Shri Bal Thackeray and Shri Raut have not stated on oath that the nine passages complained of do not violate the provisions of sections 153A and 153B because they are torn from their context. It is not for anyone to inquire why they have not said so, and it must be assumed that they had good reasons for doing so.

 In fact paragraph 7 of Shri Raut's affidavit supports this assumption, for Shri Raut has justified the nine paragraphs complained of by stating that they do not attract the prosecution of respondents 3 and 4 and the respondents have exercised their freedom of speech and expression and commented upon current affairs objectively. It is the case of respondents 3 and 4 that the freedom of speech and expression confer on them the right to write the passages complained of even if they violate sections 153A and 153B.

 I will deal briefly with the judgement of the division bench in view of what I have said earlier. As the petitioner prayed for a mandamus directing the state government to grant its sanction to prosecute Shri Bal Thackeray and Shri Raut under the provisions of sections 153A and 153B by publishing the said passages complained of, the questions for the court's consideration was whether the government, knowing and believing that the nine passages complained of did violate the provisions, mala fide refused to sanction to prosecute respondents 3 and 4 for articles which violated the two sections of the IPC.

If so, the division bench was under an obligation to issue a writ of mandamus directing government to give its sanction. The sidetracking of the legal department, the referring of the matter to the Press Council of India which was not the body to give legal opinion, the implicit admission that these passages violated provisions of section 153A and that they could be used by the prosecutor in the four prosecutions already sanctioned show beyond any doubt that these passages violated the provisions of both sections 153A and 153B and the government mala fide declined to prosecute respondents 3 and 4.

It is not necessary to deal at length with the elaborate special pleading by which the division bench held that the passages complained of did not violate the provisions of the two sections. I will only deal with one gross instance of the untenable interpretation put on the editorial in Saamna dated December 9, 1992 (page 38 of the judgement, see page 6)

 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 11crores of Muslims and, therefore, the figure given in the editorial appears to be a typographical mistake and hence from the reference to 25 crores 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 opinion, the interpretation given to this exhibit is absurd and perverse. The statement that 25 crores 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 emphasize 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 was 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.
 The government is prosecuting Shri Thackeray for some articles. The 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 opinion the summary dismissal of the petition for special leave against the judgement of the Bombay High Court by Justices Punchi and Jaychandra Reddy can only be described as amazing and subversive of the rule of law.

A report of the proceedings appeared in the Indian Express by Teesta Setalvad dated January 14, 1995. 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 respondents were not guilty. The necessary consequence of the summary dismissal is that the Supreme Court confirmed the high court's conclusion that the respondents 3 and 4 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 little 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. In respect of these prosecutions government upheld the rule of law.

In view of what I have said in this opinion, the Supreme Court in summarily dismissing the petition for special leave has done great injury to the fabric of our laws. In my opinion once the Supreme Court has before it a full account of the grave issues involved, they should follow the course adopted by the House of Lords in Khwaja's case When it first came before the House of Lords the petition was dismissed. When the petition in Zamir's case came before the House raising the same issues as in Khwaja's petition, the House of Lords recalled its order and admitted the petition.
In my opinion, the Supreme Court should recall its order, admit the special leave petition and decide the matter on merits.

The various segments of this story appeared as part of the cover story of Communalism Combat, January 1995.

 
‘Where then, O Lord, shall we turn’
 
Fali S. Nariman                Courtesy: thehindu.com

It is difficult to comment, much less to criticise, an order of the Supreme Court refusing special leave to appeal under article 136 of the Constitution. It is discretionary jurisdiction. The SC is not bound to interfere with every erroneous order of the High Court, nor does its interference tantamount to an affirmation of the order.

All this is trite law, but then, there are cases and cases. The judgement of the division bench of the Bombay High Court in ‘J.B. D’Souza versus state of Maharashtra’ is one which compelled comment – affirmative or negative – by the highest Court: if only for the reason that it interpreted sections 153A and 153B of the Penal Code (in my opinion wrongly) and held that the offending newspaper articles did not come within the “mischief” of these sections (again in my opinion, in error).

One must first become acquainted with the history of the sections to appreciate the “mischief” they sought to prevent. Sections 153A and 153B were enacted in 1898 as an addition to the Penal Code for the greater protection of public tranquility in a pluralistic society, the members of which professed different religions and faiths.

When in the United Kingdom more than a century ago, Lord Macaulay had protested in British Parliament against the way the blasphemy laws were then administered, he had added: “If I were a Judge in India I would have no scruple about punishing a Christian who should pollute a mosque.”

When Macaulay became a legislator in India, he saw to it (by provisions made in the Penal Code) that the law protected the religious feelings of all – in Chapter XV (Offences Relating to Religion). These provisions were inadequate to deal with riots and civil strife, and the Penal Code was amended to include Sections 153A and 153B.

When judges speak, what they say (and significantly, what they do not say) sends down strong signals. People listen, and shape their actions accordingly. The message conveyed by the judgement lies as much in what it does not say as in what it does. The message clearly is that the intemperate word against a particular community likely to cause disharmony will now not only go unpunished, but will not even suffer a judicial rebuke. This is the single most sinister, most deplorable fall-out of the judgement of the justices Majithia and Dudhat.

Today we are an explosively plural society, and desperately need sections 153A and 153B – but we need to use them as well. They remain on our statue book to give assurance to the people of India that promoting enmity between different groups on grounds of religion will not be tolerated and will be visited with penal sanctions; to guarantee to the minorities that secularism is a basic feature of our laws, an affirmation made so very recently, and in such eloquent terms, by a bench of nine justices of the Supreme Court (in Bommai’s case – March 1994). It is this assurance that was denied to the people of Maharashtra, especially to the minorities in the state, by the High Court of Bombay.

And it was for this reason that the discretionary jurisdiction of the Supreme Court was invoked, but without success. The ratio of the judgement of the High Court ought not to have been permitted to stand, and made non-vulnerable only because of the rhetoric expressed at the end. The judges of the High Court felt (and said so in one of the last paragraphs of the judgement) that launching a prosecution now would be futile since “a lot of time has elapsed and peace, tranquility and communal harmony, of which Bombay city is historically proud of, is restored.” A moment’s reflection would (and should) have convinced the justices that it was inflammatory articles such as those cited in D’Souza’s writ petition that had aggravated (if not contributed to) the violent disturbances that shook Bombay in January 1993; and that if such-like articles were repeated the already fragile edifice of “communal harmony” (dear to the hearts of the judges) would collapse.

There is something more. Nowhere in its 57-page judgement does the High Court express any displeasure at the tone and content of the offending articles. There is no expression of censure, no record of any expression on the part of the offending newspaper of contrite grief; for religious feelings which may have been hurt.

When judges speak, what they say (and significantly, what they do not say) sends down strong signals. People listen, and shape their actions accordingly. The message conveyed by the judgement lies as much in what it does not say as in what it does. The message clearly is that the intemperate word against a particular community likely to cause disharmony will now not only go unpunished, but will not even suffer a judicial rebuke. This is the single most sinister, most deplorable fall-out of the judgement of the justices Majithia and Dudhat.

That all this should not have been seen fit to be corrected by the Supreme Court of India when its jurisdiction was invoked, prompts only a plaintive prayer, “Where then, O Lord, shall we turn, for the redressal of palpable wrongs?”
 
‘SC ruling is absolutely shocking’

“To all minorities in India, the Bombay High Court and Supreme Court have by their conduct, denied any guarantee that secularism is the basic feature of Indian laws.”

 
I find the Supreme Court ruling absolutely shocking. What it essentially means is that the ruling of the division bench of the High Court has been confirmed. One of the contentions in the High Court ruling was that the articles which appeared in Saamna did not pertain to all Muslims but only to anti-national Muslims. Who is anti-national? And who is fit to decide this?

The same Bombay High Court, through several judgements delivered in the past eight years (including one delivered by me) has set aside the election of several Shiv Sena MLAs on grounds of Sections 123(3) and 123(3)(a) of the Representation of People's Act (RPA). These petitions, among other evidence, relied upon the speeches made by Bal Thackeray during electioneering, raving about "anti-national Muslims". Then the High Court saw fit to set aside the election invoking these sections.

Section 123(3) (a) of the RPA coincides exactly with Section 153(a) of the Indian Penal Code. This special leave petition by D'Souza has also cited editorials from Saamna that clearly violate this section. Why has the High Court deviated from a line of thinking adopted consistently earlier? And the Supreme Court going along with this? I find it particularly disturbing because one can notice a trend -- the majority judgement in the Ayodhya case that was blatantly perverse, now this.   
 
‘Thackeray openly flouted the law’

Soli Sorabjee

It is extremely unfortunate that the judiciary has not intervened in this case where the law has been openly flouted and communal hatred spread by Bal Thackeray through his mouthpiece, the Saamna.

History teaches us that unless these pernicious tendencies are scotched they grow to become unmanageable monsters later on. The argument that a prosecution of persons responsible for spewing hatred would rake up past events is totally misconceived because there has been no re-thinking or regret by the authors of the writings and every likelihood of such actions being repeated.
 
‘Future of India at stake’

Nani Palkhiwala


I am deeply distressed that even the Court did not give priority of priorities to the cause of amity and national solidarity. On a perusal of the papers, in my view the dispassionate conclusion is as follows.

(1)  The High Court was in error in not allowing the petition to compel the government to sanction a criminal prosecution under Section 153A and Section 153B of the Indian Penal Code, because there is clearly a prima facie case that the Sections had been violated.

(2)  It is true that the Supreme Court is over–burdened with more than two lakh cases pending, but it should have granted special leave to appeal against the High Court’s judgement rejecting the petition. After all, what is involved in this case is the entire future of India and the type of journalism which the state is willing to countenance or condone.

(3)  The basic principle of democracy is that no one is above the law. If any government flouts this principle for reasons of political expediency, it is doing irreparable damage to the democratic fabric of the national polity. The Maharashtra government did do that irreparable damage, and that is why public-spirited citizens moved the Court in the matter.            

Government, police and Saamna

 
Fourteen cases in all have been filed against Bal Thackeray’s mouthpieces, the Marathi daily, Saamna and the Hindi eveninger, Dopahar ka Saamna by the police for articles published over four years–between 1990-94.

In view of reported claims in court, by the police and the Maharashtra government, in the course of hearing this petition, that sufficient or adequate action had already been initiated against the offending newspapers, it is pertinent to look at the stage at which investigations/prosecutions in these cases have reached:

1.  Courts: Four of the 14 cases filed by the police for articles appearing in Saamna between January 10 to 21, 1993 (not the editorials cited in the petition), under section 153A of the Indian Penal Code, are languishing in courts. The last date for hearing was December 15, 1994 after which the cases have again been adjourned.

2.  Government: Five of the 14 cases filed by the police against Dopahar ka Saamna between January 22, 1993 and June 8, 1993 still await government sanction for prosecution nearly two years after the offences were allegedly committed. It is pertinent to mention that the police first sent these cases for sanction only on April 25, 1994, sixteen months after the offences were allegedly committed and 13 months after the present writ petition was filed.

3.  Police: In five of the 14 cases, related to offences committed by Dopahar ka Saamna (three) and Saamna (two), between the period of February 7, 1993 to April 19, 1994, investigations are still pending with the Dadar police station and the C.I.D., Crime Branch.
P.S. In a previous case related to an article published by Saamna on September 16, 1990, where the police had applied for government sanction to prosecute the Saamna and its editor, Bal Thackeray, the Maharashtra government refused sanction. 
 
Thus wrote Thackeray. . . .

Courtesy: Palashranjan Bhaumick/Times of India
 
>December 2, 1992:
“Municipal commissioner Khairnar risked his life to use the bulldozer in Bhendi Bazar which has become a haven of Pakistani infiltrators and anti-national Muslims. Moulvis and mullahs have corrupted Bhendi Bazar. The poison of treachery (anti-nationalism) is flowing through every vein of Bhendi Bazar. Is Bhendi Bazar a part of India at all?”

Thus ruled HC
It is pertinent to note that in the said article criticism is only against Pakistani infiltrators and anti-national Muslims and not Muslims as a whole…we are therefore of the opinion that the article has no tendency to create ill-will, ill feeling against Muslim community as a whole… it is clear that the author of the article respects all religions and claims that the Holy Koran is for the whole humanity.”

Thus wrote Thackeray
>December 5, 1992: “The temple should not be constructed because the sentiments of the minorities would be affected. And who are those minorities? The Muslim traitors who partitioned this country and have not even allowed us to breathe ever since then”

Thus ruled HC
“If we consider the entire action including the offending sections relied upon by the petitioners, the criticism is levelled against those Muslims who had espoused the case of the two nation theory and thereby were responsible for partition of the country. They have been described as traitors. Aftermath of partition is too well known.” (page 26-27).

Thus wrote Thackeray
>December 8, 1992: “Muslims should draw a lesson from the demolition of Babri Masjid otherwise they will meet the same fate as Babri Masjid. Muslims who criticise the demolition are without religion, without a nation.”

Thus ruled HC                           
*According to this articles, by the fissiparous mentality created in the minds of Muslims by the aforesaid anti-social elements, Muslim started drifting from the mainstream of life….these articles do not criticise Muslims as a whole but Muslims who are traitors to India..
“….It is true that in some of these articles due to the emotional outburst, high-flown and caustic language is used but this per se will not fall within mischief of sections 153A and 153B of the code.” (pages 51-52).

Thus wrote Thackeray
>December 9, 1992: “Streams of treason and poison have been flowing through the cities and mohallas of this country. Those mohallas are inhabited by fanatical Muslims. They are loyal to Pakistan. Riots occur only in those cities and mohallas with a growing Muslim population. It is clear from the fact that the root cause of riots lies in the Muslim community and its attitude. There are three 3 per cent Muslims on record all over Delhi. But they are concentrated in old Delhi and the areas surrounding Jama Masjid. Therefore riots occur in this area. They also take place in Bhendi Bazar, Musafirkhana, Bhiwandi, Malegaon and Muslim majority areas of Bhopal. Riots break out wherever Muslims enjoy domination. They stop as soon as the Muslims are at the receiving end.

“A similar thing is happening today. Muslims revolt in their own areas. They beat Hindus, demolish temples and attack the police. The government is appeasing these traitors. It is learnt that Pakistan has manufactured seven bombs. But the bomb that has been made in India with the blessings of Pakistan is more dangerous. Now Pakistan need not cross the borders for launching an attack on India. Twenty-five crore Muslims loyal to Pakistan will stage an insurrection. One of these seven bombs made by Pakistan lies hidden in Hindustan.”          

Thus ruled HC
In this article, it is true that reference is made to 25 crores of Muslims in India and relying on this, Mr. Setalvad argued that Muslims as a whole are criticised. It is an admitted position that in India at that time there were eleven crores of Muslims and therefore the figure given in the editorial pages appears to be a typographical mistake and hence from the reference to 25 crore Muslims one cannot draw the inference that the whole dig in the editorial is against Muslims as a whole….the dominant impression which the reader is likely to carry is definitely not ill-will, spite or hatred towards Muslims in general but it may carry ill-will, spite or hatred against unlawful behaviour of anti-national Muslims including leaders like Imam Bukhari and Shahabuddin.” (pages 37-38).

Thus wrote Thackeray
>January 8, 1993: “Stop the armed bands of traitors before it is too late. Hand over the ‘Mini-Pakistans’ of Bombay to the Indian army. Unless the rioting traitors are shot on the spot, normalcy which the police refer to would not be restored.”

Thus ruled HC
“The aforesaid portion of the article refers to the lukewarm attitude taken by the police and S.R.P. at the behest of the government taking the role of bystanders and it is from this point of view, the part of the editorial refers to the government to take stringent measures against the rioters by firing on the spot. In the article reference is made to the violence which erupted at Bhendi Bazar, Null Bazar, Dongri and traitors are held responsible for it and suggestion is made that in such type of situation shooting at sight will be an appropriate action. In our opinion, this article also cannot come within the ambit of section 153A and 153B of the code.”

Thus wrote Thackeray
>January 9, 1993: “The ugly and violent form of Muslim traitors was witnessed by the city yesterday. During the 26-year tenure of M.K. Gandhi, Muslims from Malabar to Noakhali grew progressively violent and Hindus became non-violent… Our prophecy has come true. A Muslim whichever country he belongs to, whichever position he occupies is first a Muslim. To him his religion is the first concern. Nation is of secondary importance to him. In the last two days patriotic people have been subject to attacks. These attacks constitute attacks on the nation.”

Thus ruled HC
“The aforesaid article when read as a whole, refers to the activities of Muslim traitors who were destroying culture, tradition, piety, family, law, truth, affection, public administration and other such cherished values and showing their cruelty before the police and army…according to this article, the army, the police in the city instead of stopping the traitorous activities of anti-national Muslims, are taking the role of bystanders, mutely looking at the scene. This attitude of the army and the police is abhorred. This article does not create feeling of ill-will, spite and hatred in the minds of Hindus against Muslims.” (pages 46-50).

Thus wrote Thackeray
>January 9, 1993 (Special column captioned “Question to the Chief Minister):” Hindus will not be crushed to death by the politics of pressure tactics and Muslim terrorism. The killing of Hindus in Bombay is the result of inaction on your part. If you cannot stop the way Muslims and in your language minorities are slaughtering us, then we have to follow their ways for self-defence. This is not instigation but indignation in my mind.”

Thus ruled HC
*… “It is clear that the article has criticised the government, army and police. According to the article, the army and the police in the city instead of stopping the treacherous activities of anti-national Muslims are taking the role of bystanders merely looking at the scene. This attitude of the army and police standing like Khada Parsi is abhorred. This article does not create feeling of ill-will, spite or hatred against Muslims.”   

(The various segments of this story appeared as part of the cover story of Communalism Combat, January 1995)
 
Campaign
"I piss on the Court's judgements. Some people are trying to get a case admitted against me. But I am not afraid of court judgements. Most judges are like plague–ridden rats against whom direct action should be taken:" Bal Thackeray quoted in the lead story published in Saanj Jansatta, (June 25, 1993) and in Gujrat Samachar (June 28, 1993). Addressing Shiv Sainiks at a close-door anniversary rally, on June 19, 1994 he had also exhorted his followers and all Hindus to "arm themselves with AK56 rifles and carry these and other such weapons on their person."  

After the demolition of the Babri Masjid in early December 1992, there was unprecedented violence in Bombay. This reached the level of a pogrom directed against the Muslims in early January 1993. The role of the police was extremely unsatisfactory. In several cases the police not only did not take action against the rioters but assisted them.

The anti-Muslim pogrom was stoked and led by the Shiv Sena and its leaders, in particular its chief, Bal Thackeray. Thackeray was and is the editor of a daily newspaper, published in Marathi, Saamna. During December 92 January 93, Saamna published a number of editorials and other writings which were clearly in contravention of section 153A and 153B of the Indian Penal Code (see box).

Section 153A makes it an offence punishable with three years imprisonment if any person promotes or attempts to promote disharmony or feeling of enmity, hatred and ill-will between different religious groups.

Section 153B makes it an offence punishable with three years imprisonment if any imputation is made that any class of persons, by reason of being members of a religious group, are not loyal Indians.

(In a decision given in Babubhai Patel case the Supreme Court had held in 1980 that saying that Muslims indulge in riots or violence contravened section 153A. It also laid down a general principle that a person could not promote such enmity in the guise of writing a political thesis or a historical
analysis.)

Apart from the nine editorials specifically cited in the petition, a scrutiny of the issues of Saamna (launched by Thackeray in 1989) before and after 1992-93 shows that systematic venom is spewed against the minorities and other critics of the Sena through its pages.

It needs to be stressed here that the specific writings relied upon in this writ petition were written during the riots of December 1992 and the anti-Muslim pogrom in January 1993 they were instrumental in provoking large-scale destruction, looting and killing in Bombay. During that period, Sena leaders openly admitted that their “boys” were on the streets “teaching the Muslims a lesson”.

Action of any kind against Thackeray was and is still conspicuous by its absence. Confident that none will be taken, he continues unchecked, spreading vitriol and prejudice. In the late 80s, at his annual exhortation on Vijayadashami Day he urged Hindus to arm themselves. The speech was given lead coverage in a leading Marathi daily, the Maharashtra Times. Despite a memorandum signed by a few hundred journalists at the initiative of ‘Journalists Against Communalism’, the then Congress (I) government under chief minister S.B. Chavan took no action against him.
          
A few months after the present writ petition had been filed; Bal Thackeray addressing the anniversary rally of Shiv Sainiks in June 1993 spat venom at the judiciary (See box below)

Recorded evidence of this speech of Thackeray’s is available with the Crime Branch, C.I.D., Bombay police. Ironically, every wing of the state machinery – government, police and judiciary – allowed even these utterances to go unpunished.

Barely ten months after spearheading the anti-Muslim pogrom in Bombay in January 1993, Thackeray went several steps further. Speaking at the Vijayadashami rally in October of that year he said, “The police force in Bombay, in Maharashtra and all over India must not forget that they are Hindus first and policemen thereafter.” The Maharashtra government and the Bombay police chose to turn a deaf year to such blatant incitement of communal feelings in the police force.

As no action was taken by the police or the state government against Saamna for its highly inflammatory writings throughout December 1992-January 93, a public interest petition was conceived. The petition pointed out that the government and the police, by not taking action against Bal Thackeray, were abdicating their statutory duties. It asked that the Bombay High Court direct the state government to launch proceedings against Thackeray under sections 153A and 153B of the IPC.

The People’s Union for Civil Liberties (PUCL) which was involved in the filing of the petition strongly felt that it would have maximum impact if some Maharashtrian Hindus – the prime support base of the SS – filed it. The petition was even signed by four prominent Maharashtrians and readied for filing in the second week of March 1993.

On the day it was to be filed, however, the signatories withdrew after some of them had received intimidatory threats. The effort to bring Thackeray to book had to be further delayed. Finally, J.B. D’Souza, former chief secretary of Maharashtra agreed to sign the petition. Later, Dilip Thakore, senior journalist became a co-petitioner.

Both PUCL and the Committee for the Protection of Democratic Rights (CPDR) intervened in the petition lending their support. Atul Setalvad, senior counsel assisted by Shiraz Rustomjee appeared for the petitioners. At the Supreme Court, advocates R.N. Karanjawala also assisted Setalvad.

The writ petition filed in the Bombay High Court – citing nine editorials published by Saamna – prayed that the police and the Maharashtra government be directed to prosecute and punish editor, Thackeray, and executive editor, Sanjay Raut.

The petition came up for admission before a division bench of the Bombay High Court in early April 1993. Affidavits were filed on behalf of the police and Thackeray opposing the admission.

The affidavit filed by a deputy commissioner of police contended that none of the writings to which the petitioner has referred constituted an offence punishable under section 153A or 153B. The police also stated that they were not, in any way, favouring Thackeray or Raut: that in respect of certain writings action under section 153A had been initiated against both Thackeray and Raut but government sanction was being awaited (see box).

The state government also filed an affidavit opposing admission and stating that whether a sanction should be granted in respect of the offences where the police had initiated action was under consideration of the govern
ent.

Raut filed an affidavit on behalf of both himself and Thackeray. He did not deny the publication of any of the articles but raised technical objections: a writ of mandamus did not lie and that the government had absolute discretion as to whether or not prosecution should be launched.

At the end of the first round, the high court merely passed an order on April 30, 1993 adjourning the petition for admission to June 14, 1993. The state government was also directed by the court to take and communicate its decision on whether or not sanction was granted to prosecute in respect of offences where the police had filed complaints.

The court was informed on June 9, 1993 that sanction had been granted. The petition was thereafter admitted by the high court on June 14, 1993 and certain amendments were carried out. The bench which admitted the petition had directed that because of the importance of the issues it raised, the petition be heard speedily. Even though the petitioners made numerous efforts to have the petition urgently heard, it could not be heard till September 1994. Either Thackeray and his advocates wanted time, or the court did not have time to deal with the petition.

The petition was ultimately heard by a division bench of the Bombay High Court comprising of justices Majithia and Dubhat in September 1994, i.e., 18 months after the alleged offences were committed and 16 months after the writ was filed.

In the petition, as amended, and which came up for hearing before the high court, the petitioners had contended that the articles in question were in gross contravention of sections 153A and 153B of the IPC; that the police had only chosen to take action in respect of some writings where the attack was directed not at the Muslim community in general but at one senior police officer, namely deputy commissioner of police, A.A. Khan, a Muslim.

It was specifically contended in the petition that the deliberate official inaction was due to political reasons and it amounted to an abdication of the functions of the state. It was also the contention of the petitioners that failing to prosecute such blatant violations of section 153A and 153B was improper and illegal.

No affidavit in reply to the main petition was filed by Thackeray or Raut. The police, however, did file a further affidavit in which it was stated that of all the articles the petitioners had relied on; only one was found to be objectionable; in respect of that one article the police had decided to take action subject to government’s sanction. The government, too, filed an affidavit stating that it had referred the articles on which the petitioners had relied to the Press Council of India and were awaiting the decision of the council on the subject. The high court, in its 57-page judgement delivered on September 27, 1994, dismissed the petition. The judges ruled that none of the articles on which the petitioners had relied violated section 153A, and that, in any case, it was not advisable to re-open the subject after considerable time had elapsed, as it may re-kindle communal feelings. It also pointed out that the government had already taken action in respect of some offences.

The high court bases its conclusion on the general proposition that the articles must be read as a whole. For this it relied on an earlier decision of the Bombay High Court in the Godse case.

That the high court came to this conclusion by misreading the articles and – either through omission or commission – failing to read the offending operations is clear from their remarks to the individual articles cited (See box, page 6)

To every offensive and violative statement hurling inflammatory abuse at the Muslim community, the HC plaintively repeats, “This article does not create ill-will, spite and hatred in the minds of Hindus against Muslims.”

Similar comments are directed by the HC at other articles appearing in Saamna dated December 15, 1992 and January 5, 1993 (pages 41-42)

It is only as far as the article dated January 11, 1993 is concerned, because the police had accepted this as contravening the relevant sections that the high court, therefore, accepted that position and stated that action was, in fact, being taken in respect of that article. It is significant however, that, according to police, they had done nothing except registering a case for investigation.

Summing up the reasons for reaching its conclusion, the division bench of the HC says, “After going through all the aforesaid articles which were being published from time to time after the fall of the Babri Masjid and in the wake of the riots that broke out in areas predominantly occupied by Muslims, it appears that criticism is levelled against anti-national Muslims, who at the behest of Pakistani agents, poured poison in the minds of local Muslims and developed hatred in their minds against Hindus in Bombay which ultimately resulted in unprecedented riots…these articles do not criticise Muslims who were traitors to India.”

Not only is it clear, therefore, that the conclusion of the high court that the articles did not contravene section 153A or 153B is, to say the least, perverse. Violence erupted in many parts of the country after two lakh kar sevaks demolished the Babri Masjid in December 1992. A disturbing pattern of state – and police – bias against the Muslim minority was evident in their failure to protect the lives and property of Muslims and to speedily control the countrywide outbreak of violence.

This was most obvious in the metropolis of Bombay. Yet the tenor of the comments of the two judges clearly imply that they have tacitly accepted Bal Thackeray’s and the Saamna’s vitriol directed at Muslims – a factor that contributed significantly to the anti-Muslim pogrom in Bombay in January 1993.

Moreover, the effect of the judgement is to substantially water down the impact of sections 153a and 153B at least in the state of Maharashtra. If these articles are not treated as in contravention of the said sections, it is difficult to imagine what writings ever would come within the mischief of these sections. Further by coming to the conclusion that such clearly inflammatory articles did not contravene those sections, it is virtually a ratification of such writing and an open invitation to indulge in such writing in future.

The high court totally ignored the attitude of the police and the state and the gross delay in pursuing the matter even in respect of the articles which the police considered objectionable. Though the police had applied for sanction in January, 1993, no sanction was forthcoming till after the present petition was moved in June, 1993. Even though over 18 months have since passed, no effective action against the offenders has been taken.

In arriving at its decision, the high court also did not take into consideration the strange attitude adopted by the state government. It is the primary duty of the state to maintain law and order and it is grossly improper for the state to abdicate that function by stating that they would await the decision of the Press Council of India.

The State, by not initiating action against the authors of these offending and inflammatory articles had totally abdicated its functions of maintaining law and order. This is all the more so because the Press Council of India has no function to administer the criminal law.

The Press Council of India is constituted under the Press Council Act, 1978 and its function is to preserve the freedom of the press and to maintain and improve the standards of newspapers. The maximum action it could take, if in its opinion the standards of journalists, editors or public trusts have been violated, is to censure the editor and the writer.

The high court purported to say that in the public interest it would not be desirable to rake up the issue after such a long delay. It is interesting to note in this connection that on affidavit neither the state nor the commissioner of police had contended that because of the delay such action should not be initiated.

Moreover, as the State and the police maintain that they were initiating or continuing prosecutions against Thackeray and Raut for other writings, obviously there can be no apprehension in their minds that doing so would create public disorder.

While the petitioners had moved with all reasonable speed, and delays in hearing of the petition had occurred only because of the court being unable to find time or the respondents’ desire to delay matters, it was grossly improper to reject the petition on the ground that a considerable time had elapsed since the offences were committed.

Moreover, this was a public interest litigation and the provision of the law on time is directly to be found in section 467 and 468 of the Criminal Procedure Code: this section clearly lays down the period of limitation for such offences as three years.

The attitude of the high court on this issue has resulted in making out a case for the respondents which they had not made out themselves. This in effect means that however grave an offence, if the person concerned can avoid, due to influence or other reasons, the launching of prosecution within a reasonable time, no action can be taken against them.

Further the whole approach of the high court that the tranquillity need not be disturbed is fallacious in several basic respects.

In the first instance, while it is (fortunately) true that the violent incidents of January 1993 have not recurred, the incidents have left a big scar on the state of Maharashtra generally and on the Muslim community in particular. One of the reasons why the riots in January 1993 were unprecedented as compared to previous communal disturbances in this city was not only because of the existence of perpetrators of this kind of writing but because of the degree of official connivance with the rioters.

The impact of this on the minority community was and is severe as failure to take action against those who inflamed communal feelings during the sensitive period would have confirmed such apprehensions and feelings. The whole approach of the high court is therefore, unjust and improper.

Being aggrieved by the decision of the high court the petitioners filed a special leave petition in the Supreme Court of India. This petition came up for admission before a division bench of the Supreme Court comprising of Justices Punchi and Jay Chandra Reddy on January 6, 1994.

The Supreme Court dismissed the petition mainly on the ground that as the high court – which is expected to have a correct picture of what they called the pulse of the city – had declined to interfere, it would not be proper for the Supreme Court to do so.

It was pointed out by senior counsel for the petitioners, Atul Setalvad that since the articles published in Saamna on which the petition relied involved gross violations of two sections of the IPC (153A and 153B) that had been inserted for the specific purpose of acting as a check on communally inflammatory writings, in the interests of public tranquillity, action must be taken by the highest court in the land.

The SC responded by stating that action had already been taken by the state in respect of four editorials appearing in Saamna (see box). Counsel pointed out that all cases where some action had been taken involved articles or editorials where attacks had been made on a particular Muslim police officer and not on the entire community as in the case of editorials challenged in the petition. These editorials, it was argued involved much graver offences as they were directed against the entire Muslim community.

Despite the fact that the Maharashtra government had taken a clear stand before the Bombay High Court that the editorials did not violate sections 153a and 153B of the IPC and hence no action against Thackeray and Raut would be initiated, the SC refused to substitute the HC judgement with one of its own.

The consequences of the SC’s refusal to intervene in this case that involves gross violation of criminal law are dangerous to the secular ethos, vital to any democracy. The message sent down is that intemperate, vitriolic writing that promotes enmity between different religious groups will go unpunished. It will not even invite mild censure.

To all minorities in India, the Bombay High Court and Supreme Court have by their conduct, denied any guarantee that secularism is the basic feature of Indian laws. Moreover, the impact of the judicial decisions reduces two vital sections of the penal code, 153A and 153B – introduced to preserve public tranquillity – to dead laws. What use are these sections if they are not invoked for effective action against those spreading communal hatred?

The various segments of this story appeared as part of the cover story of Communalism Combat, January 1995.