INSUBCONTINENT EXCLUSIVE:
Evelyn Beatrice Hall, an English writer who wrote under the pseudonym S
Tallentyre, wrote the phrase: "I disapprove of what you say, but I will defend to the death your right to say it" as an illustration of the
French enlightenment writer Voltaire's beliefs
While this principle depicts the absolutionist version of free speech similar to the American jurisprudence on the subject, the Indian
Constitution consciously imposes further restrictions on the free speech
The American absolutionist approach has been rejected at the outset by constitution benches in Babulal Parate and Madhu Limaye [apart from
the stray reliance by a smaller bench Shreya Singhal], the Volatairian principle is often invoked to evoke the delicate sensitivities of
popular conscience and to stoke the rhetorical weaknesses of the Courts
However, curiously, almost across the globe, there is an increasing movement to label aspects of expression of individuals or groups, as
Specifically, Article 20 of the International Covenant on Civil and Political Rights, 1966 and Article 4 of the International Convention on
the Elimination of Racial Discrimination, 1965 hint towards explicit controls on expanse of free speech despite being purportedly rights
What this has enabled are wide-ranging statutory prohibitions against speech of a particular nature across European nations dealing with
ethnic, racial, religious or national security issues
The European Court of Human Rights has in fact, almost four and half decades back held that the "Freedom of expressionis applicable not only
to 'information' or 'ideas' that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that
offend, shock or disturb the State or any sector of the population"
be proportionate to the legitimate aim of democratic societies seeking to prevent expression which spreads, incites, promotes or justifies
hatred based on intolerance
In principle, such position would fit in rather comfortably in the limited free speech rights that the Indian Constitution provides, but the
devil generally lies in the details
prerogative of elected representatives who, as a legitimate state interest of maintaining harmony, may invade the free speech right in some
The Courts however, would not delve in to an investigative exercise under writ jurisdiction, seeking to curtailing constitutional rights in
While such protection, if within constitutional perimeters, may represent a laudable aim, aiming such protection to the sole protection of
If expression is to be curtailed in the first place, it ought to be curtailed across the board, making it equally applicable to all
On the other hand, if expression it is not to be curtailed, it is to be allowed across the board along with State protection
further any legitimate state aim
This definitional hazard cannot give birth to a situation wherein expression against the integrity or sovereignty of a part of a country or
derogatory depiction of a God adhered to by one community is seen as an incidence of free speech, and at the the same time, a similar
The right to freedom of expression cannot be moulded conveniently to further one particular point of view over the other, or even to protect
one particular expression of bigotry whilst censoring the other
history of Section 295AIn this context, the history of Section 295A of the IPC, has its own story to tell
In 1923, in response to a Hindu goddess being depicted as a prostitute, a publisher named Rajpal published an anonymous pamphlet titled
Rangila Rasul, which allegedly contained some scandalous commentary
The pamphlet was authored by Pandit Chamupati of Arya Samaj who succeeded in the case under then Section 153A in Lahore High Court which
ruled that although the writing was certainly offensive to the Muslim community, the prosecution was not legally sustainable because the
writing could not cause enmity or hatred between different religious communities, which is the gist of the offence under Section 153(A) of
Subsequently, Pandit Chamupati was promptly murdered in cold blood by a man named Ilm-ud-din, who is now venerated in Pakistan
He was represented by none other than Mohammad Ali Jinnah, a prominent lawyer at the time, at the Lahore Sessions Court where he was
Despite the dastardly act and the subsequent conviction and execution in 1929, Ilm-ud-Din became an instant hero, so much so that a leader
as tall as Allama Iqbal attended his last rites
In the same era, numerous other such incidents are said to have occurred, encapsulated by the legendary B.R
Gandhi has done to build up Hindu-Moslem unity
He has never called the Muslims to account even when they have been guilty of gross crimes against Hindus.It is a notorious fact that many
prominent Hindus who had offended the religious susceptibilities of the Muslims either by their writings or by their part in the Shudhi
movement have been murdered by some fanatic Musalmans
First to suffer was Swami Shradhanand, who was shot by Abdul Rashid on 23rd December 1926 when he was lying in his sick bed
This was followed by the murder of Lala Nanakchand, a prominent Arya Samajist of Delhi
Rajpal, the author of the Rangila Rasool, was stabbed by Ilamdin on 6th April 1929 while he was sitting in his shop
Nathuramal Sharma was murdered by Abdul Qayum in September 1934
It was an act of great daring
For Sharma was stabbed to death in the Court of the Judicial Commissioner of Sind where he was seated awaiting the hearing of his appeal
against his conviction under Section 195, I
C, for the publication of a pamphlet on the history of Islam
Khanna, the Secretary of the Hindu Sabha, was severely assaulted in 1938 by the Mahomedans after the Session of the Hindu Maha Sabha held in
Ahmedabad and very narrowly escaped death
This is, of course, a very short list and could be easily expanded
But whether the number of prominent Hindus killed by fanatic Muslims is large or small matters little
What matters is the attitude of those who count towards these murderers
The murderers paid the penalty of law where law is enforced
The leading Moslems, however, never condemned these criminals.On the contrary, they were hailed as religious martyrs and agitation was
carried on for clemency being shown to them
As an illustration of this attitude, one may refer to Mr
Barkat Alli, a Barrister of Lahore, who argued the appeal of Abdul Qayum
He went to the length of saying that Qayum was not guilty of murder of Nathuramal because his act was justifiable by the law of the Koran
This attitude of the Moslems is quite understandable
What is not understandable is the attitude of Mr
purportedly eminent historians of our times
In fact, the Paris Charlie Hebdo incident or the Sweden riots, are not very alien to the Indian context
Or maybe, the justice warriors of today would want to impose pre-censorship on the great B.R
Ambedkar as well.Be that as it may, the Rangeela Rosool incident, ultimately led to the enactment of the Section 295A
The report of the Select Committee preceding the enactment of Section 295(A) stated that the purpose of the Section was to punish persons
who indulge in wanton vilification or attacks upon the religion of any particular group or class or upon the founders and prophets of a
It however emphasised that ''an insult to a religion or to the religious beliefs of the followers of a religion might be inflicted in good
faith by a writer with the object of facilitating some measure of social reform by administering such a shock to the followers of the
religion as would ensure notice being taken of any criticism so made''
Therefore, the Committee recommended that the words ''with deliberate and malicious intention'' be inserted in the Section which have now
become the standard defence against the overbroad application of the provision
The constitutionality of Section 295(A) was upheld by the Supreme Court in Ramji Lal Modi on the exact point of that requirement of
deliberate and malicious intention balanced the provision under Indian constitutional free speech standard
On a similar footing is Section 153A which seeks to punish persons who indulge in wanton vilification or attacks upon the religion, race,
place of birth, residence, language etc
of any particular group or class or upon the founders and prophets of a religion
The other set of laws, apart the religious sensibilities restrictions, which provide a restriction on free speech in India are, sedition
[Section 124A of the IPC] and to an extent, the Unlawful Activities (Prevention) Act, both of which deal with a national security and
integrity aspect as a reasonable restriction of free speech.National security v
The said exceptions to generic free speech rights, are segregated by a fundamental distinction - while the national security/integrity
exceptions, are naturally to be adjudicated on a secular dispassionate view-point which depends on the intrinsic content of the speech, the
religious sensibilities exception is dependent on the sensibilities, or the lack of it, of different religious communities or other
identifiable societal sub-groups
The religious/societal sensibilities exception, by its very nature, is dependent on the tolerance of the different communities and
automatically varies not as per the content of the speech, rather varies as the reactions of the different religious communities to the
To illustrate a particular religious community may be naturally having a high degree of tolerance to criticism and therefore, the
application of the religious/societal sensibilities exception to such religious community would naturally be limited
On the other hand, a particular religious community or sub-group may be extremely sensitive and prone to volatile reactions and naturally,
By basing the religious sensibilities exception on the tendencies of religious communities/groups, the law on the subject in its
application, results in punishing the tolerant and rewarding the intolerant thereby manifesting in an arbitrary application
While the suggestions to altogether delete the religious sensibilities exceptions may not be the most realistic in a deeply religious
country, the provisions ought to be suitably tweaked in order to ensure that this naturally and inherently variable and arbitrary
application is curtailed.Ideally, the standard to judge the alleged State excesses both broad sets of exceptions the religious sensibilities
exception and the national integrity/security exception, must be the same
However, even a cursory glance at the popular discourse surrounding such issues, would demonstrate something glaring
It is almost too easy to notice the stark dichotomy in how the two sets of exceptions are treated in consciousness of the commentariat
While the accused under the national security and integrity crimes are defended valiantly by certain pressure groups, often seeking and
getting reliefs over and above the prevailing law, accused persons under the religious sensibilities law, not belonging to the same
ideological background, are left in the lurch
It was not surprising that despite availing the same reliefs, the activist lawyer and the TV anchor reacted in a starkly different manner,
largely ignoring the fact that the Supreme Court has previously, although on limited occasions, granted bails to accused persons facing FIRs
in multiple States.The silence being acquiescenceThere is a newfound clamour to initiate legal or criminal proceedings against specific TV
One would expect, that the pressure groups, in such a situation would be the first line of defence for the anchors
The truth however, could not be farther away from ideological consistency
It is in fact the same pressure groups, which rather than protecting expression rights, are advocating the restrictions, or welcoming this
It is intriguing to note that the same pressure groups openly advocate curtailment of free expression if the individuals involved are not of
groups, which has enabled the silencing of numerous opposing voices
template ideology.To illustrate, when any arrest is made under the UAPA, for either being directly involved in planned violence or being
For instance, while the call for partition of the country or the call for disintegration of the country, or the depicting of a Hindu Goddess
The list of such incidents is endless where the exercise of free speech groups/persons of a particular ideological bent is celebrated and
sought to be valiantly protected, whereas the exercise of the same right by someone else of the opposite ideological bent, is ignored,
castigated or worse, coercively criminalised
because the speaker is not of a similar ideological bent, is not just hypocrisy, it is in fact, acquiescence
Two Face from the The Dark Knight blush
where such a majority is enjoyed by select pressure groups, turn in to echo chambers, where any contrary view is censored, derided and
No real friend of free speech would stay silent merely because it does not agree with the ideological leanings of the Speaker
The Voltarian principles cannot becomes tools to utilize on chosen occasions rather they are words to live by
Free speech cannot be a concubine of a particular clique, as its poignant ideals are married to the Constitution of India.Footnotes1 Babulal
State of Maharashtra, reported in (1961) 3 SCR 4232 Madhu Limaye v
Sub-Divisional Magistrate, reported in (1970) 3 SCC 7463 Shreya Singhal v
Union of India, reported in (2015) 5 SCC 14 Handyside v United Kingdom (5493/72)5 Erbakan v
https://nation.com.pk/10-Oct-2015/until-we-start-denouncing-ilm-ud-din-s-legacy-mumtaz-qadris-will-keep-sprouting-up-in-pakistan7 Pakistan
Hindu Alternative To Pakistan, Dr
Babasaheb Ambedkar Writings And Speeches Vol
Gandhi has done to build up Hindu-Moslem unity
He has never called the Muslims to account even when they have been guilty of gross crimes against Hindus.It is a notorious fact that many
prominent Hindus who had offended the religious susceptibilities of the Muslims either by their writings or by their part in the Shudhi
movement have been murdered by some fanatic Musalmans
First to suffer was Swami Shradhanand, who was shot by Abdul Rashid on 23rd December 1926 when he was lying in his sick bed
This was followed by the murder of Lala Nanakchand, a prominent Arya Samajist of Delhi
Rajpal, the author of the Rangila Rasool, was stabbed by Ilamdin on 6th April 1929 while he was sitting in his shop
Nathuramal Sharma was murdered by Abdul Qayum in September 1934
It was an act of great daring
For Sharma was stabbed to death in the Court of the Judicial Commissioner of Sind where he was seated awaiting the hearing of his appeal
against his conviction under Section 195, I
C, for the publication of a pamphlet on the history of Islam
Khanna, the Secretary of the Hindu Sabha, was severely assaulted in 1938 by the Mahomedans after the Session of the Hindu Maha Sabha held in
Ahmedabad and very narrowly escaped death
This is, of course, a very short list and could be easily expanded
But whether the number of prominent Hindus killed by fanatic Muslims is large or small matters little
What matters is the attitude of those who count towards these murderers
The murderers paid the penalty of law where law is enforced
The leading Moslems, however, never condemned these criminals.On the contrary, they were hailed as religious martyrs and agitation was
carried on for clemency being shown to them
As an illustration of this attitude, one may refer to Mr
Barkat Alli, a Barrister of Lahore, who argued the appeal of Abdul Qayum
He went to the length of saying that Qayum was not guilty of murder of Nathuramal because his act was justifiable by the law of the Koran
This attitude of the Moslems is quite understandable
What is not understandable is the attitude of Mr
Sorabjee, Insult to religion, Indian Express, Jun 25 2006 accessed at https://archive.indianexpress.com/news/insult-to-religion-/7214/09
Ramji Lal Modi vs The State Of U.P, 1957 SCR 86010
https://timesofindia.indiatimes.com/india/Legally-Speaking-TV-Anchor-and-activist-lawyer-avail-same-relief-yet-latter-slams-SC/articleshow/7
5526572.cms11 https://main.sci.gov.in//supremecourt/2019/19777/19777_2019_5_46_14637_Order_02-Jul-2019.pdfFind latest and upcoming tech
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