By Ajay Kumar
WITHOUT PREJUDICE TO THE JUDGEMENT OF THE SUPREME COURT AND WITH ALL DUE RESPECT THAT THEIR LORDSHIPS DESERVE. THIS ARTICLE IS A MERE CRITIQUE. THE AUTHOR DOES NOT AIM TO SHOW ANY CONTEMPT TOWARDS THE HON’BLE COURT OR ANY OF ITS JUDGES OR OFFICERS.
On the 26th of November 1949, the Constituent Assembly committed what can be best described as an act of violence for they gave us this constitution and within it was embodied a flaming sword and this sword was to be wielded by our courts. With this sword our courts were empowered to pierce through the veil of darkness that surrounded our nation and let the light of wisdom and liberty shine through it.
But perhaps when the swordsman ceases to wield his power to protect the document he was sworn to defend, the time comes for us to attempt to revive him and remind him of his duty, his duty to defend and more importantly his duty to protect. The Constitution of India was a solemn declaration of independence, not just from a foreign power, but from ourselves. With the Fundamental Rights we declared that we were independent in our minds, we declared independence from prejudice, we declared independence from bigotry and we most importantly declared independence form the shackles that bound us to the ways of an older and outdated order. That is why we created the shield of the fundamental rights and the sword of judicial review. The job of the guard at the gate of liberty was the shield us from violations of our rights and then take steps to go out and actively defend them.
Today, the guard laid down his sword and his shield, today he did not do his job, today he told the grief stricken man at the gate, that he should plead to his attacker for forgiveness for the guard would not stand up to defend him. The plea of our guard, the numbers of those being attacked were too small to warrant his intervention, it would be better for them to seek forgiveness. But what is the forgiveness they should seek? Seek forgiveness for who they are? For being born different from that which we consider normal? Forgiveness for being born under a flag that refuses to see them as equal citizens? What law is this that can take away the right of a man to be human, to do as he pleases, to love whom he pleases and to express that love in any manner he sees fit within the privacy of his own bedroom?
Was it not this guard who went out and culled those who prevent a man and a woman from different castes, religious and social strata from loving each other? Was it not this court that culled those who attempted to take away the basic dignity of a human being by injecting him with venom so that he may pronounce the truth? This is the guard who on the basis of a post card sent to him, a newspaper article that he came across went out and wielded his power to protect those who were most vulnerable. But today the guard told the man at the gates of liberty that his hands were tied, the man was too small, too insignificant to take notice of. Today the guard told the man that he existed to protect the many and not him. Today the guard told them man that he was irrelevant. He spat in his face and told him that he was not worthy of his defence.
The Supreme Court yesterday in Suresh Kumar Koushal & Anr v. Naz Foundation and Ors, Civil Appeal No. 10972 of 2013 arising from SLP 15436 of 2009 declared that Section 377 of the Indian Penal Code of 1860 was constitutionally valid and not in conflict with the fundamental rights enshrined in Part III of the Constitution of India. Section 377 of the Penal Code is a crude creature for within it there is much ambiguity regarding its purpose, it is perhaps best a beast that may be used to commit as well as punish all manner of sin. The Section states:
Unnatural offences: Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with imprisonment for life, or with imprisonment of either description for term which may extend to ten years, and shall also be liable to fine.
Explanation: Penetration is sufficient to constitute the carnal intercourse necessary to the offense described in this section
The phrase that is used, is ambiguous, for what constitutes an act against the order of nature? Even their Lordships of the Supreme Court could not answer that pertinent question. For in Paragraph 38 they proceed to state.
“[..] no uniform test can be culled out to classify acts as “carnal intercourse against the order of nature”. In our opinion the acts which fall within the ambit of the section can only be determined with reference to the act itself and the circumstances in which it was executed.[..]”
Now perhaps the question may be asked as to what if a man is naturally inclined to commit such “carnal intercourse”. What if for this man, this is his way of life, the identity he was born with, the wiring he cannot change? What do we do with this man? The Section says we lock him up, we hope the constitution would beg to differ. But perhaps we misread the constitution when it uses terms like “equality” and “liberty”. Perhaps, we should have read the section as their Lordships read it in Paragraph 38 where they state:
“[..]Nonetheless in light of the plain meaning and legislative history of the section, we hold that Section 377 IPC would apply irrespective of age and consent. It is relevant to mention here that the Section 377 IPC does not criminalize a particularpeople or identity or orientation. It merely identifies certain acts which ifcommitted would constitute an offence. Such a prohibition regulates sexualconduct regardless of gender identity and orientation [..]”
Yes, your Lordships, the provision does indeed regulate sexual conduct regardless of gender identity and sexual orientation, but only when you fail to recognise that homosexuality is a sexual orientation and that being a transgender is indeed a gender identity. If the norm was the only identity this provision would stand valid but it is quite the opposite, the facts around the world show that it is not merely a heterosexual norm that survives an identity, but so does the homosexual one, so does the bisexual one and so does a transgendered identity. People are born with this identity and our Constitution does not demand that they be asked to change it.
To support their conclusion their Lordships have looked into various case law and facts on record and have stated that from the facts on record there are insufficient details to record a finding that homosexuals are being subjected to discriminatory treatment only on the basis of their sexual orientation. Perhaps we have finally seen the end of days when their Lordships took notice of the world around them, seldom does one go by a day in India where a homosexual has not been subject to violence, physical, emotional and moral violence. They are told on a daily basis that they are immoral creatures not worthy of recognition as human beings. This is a matter of public record, it is there on our streets, in our laws and in the halls of our Parliament, homosexuals are denied their basic rights every day in this country for this vicious section may be used to lock them up for being who they are.
But if a fact is not evidence on affidavit it does not exist, perhaps the crowds outside in Delhi today do not indeed exist, for they have not made themselves aware by swearing on oath as to their existence. Perhaps this is the case, but this is something new, their Lordships often in the past and perhaps even later yesterday and most probably even today will take note of facts that are a matter of public record while drawing their conclusions. But perhaps, those facts need to relate to people, homosexuals are after all against the order of nature, they are not people per se now are they? Perhaps that is what their Lordships were thinking when they said in Paragraph 43:
“[..]While reading down Section 377 IPC, the Division Bench of the High Court overlooked that a miniscule fraction of the country’s population constitute lesbians, gays, bisexuals or transgender and in last more than 150 years less than 200 persons have been prosecuted (as per the reported orders) for committing offence under Section 377 IPC and this cannot be made sound basis for declaring that section ultra vires the provisions of Articles 14, 15 and 21 of the Constitution[..]”
Yes, your Lordships, there is no disagreement with your reasoning when you say that less than 200 people have been prosecuted in the last 150 years. But prosecution does not always mean being prosecuted in a court of law, prosecution means being bullied in school, prosecution means being thrown out of your homes, prosecution means being constrained to commit suicide because of the circumstances you are born with, procesuction means to be proceeded against for the person you were born to be. That is what prosecution means, if that is taken into account, no person can concluded that there have been only less than 200 instances of prosecution, newspaper reports of a year alone would give us a number that is far more, and we are not aware of what is not reported or the abuse that goes on behind closed doors.
Their Lordships go on to say in Paragraph 52:
“In its anxiety to protect the so-called rights of LGBT persons and to declare that Section 377 IPC violates the right to privacy, autonomy and dignity, the High Court has extensively relied upon the judgments of other jurisdictions. Though these judgments shed considerable light on various aspects of this right and are informative in relation to the plight of sexual minorities, we feel that they cannot be applied blindfolded for deciding the constitutionality of the law enacted by the Indian legislature.”
Two points your Lordships, I will just take a few moments of your time to go through them, much obliged, the first problem is that this very court in Vishaka’s and in numerous other cases has relied on those very sources of international jurisprudence to correct a manner of wrongs in Indian society. In fact, perhaps it is important to note that our very system of law is of foreign import, the common law of England as it applies to India as we so proudly call our system of laws and on the second point, foreign information is often indicative of a broader and wider global trend. We live in a comity with other nations of the world. We must keep up with the times, we certainly do when it comes to most matters. It has been the spirit of our jurisprudence to keep in line with the way the world is going, nations that are our partners in progress often look to our courts for guidance on matters they are not familiar with as we often look to them. It is perhaps this way that together as a planet we march towards progress, if we stop now and say we don’t want to go with everyone else, we are glad to say in a forgotten era and a backward century, we dilute the very essence of the constitution we swore to defend.
The shield of our system of law exists to protect even one man, in fact it exists, perhaps solely to protect this one man from the tyranny of the many and the sword is used to defend him. Our constitution does not exist to protect the majority, if it did why the need for fundamental rights? Let us go back to the days of parliamentary supremacy? Rex Non Potest Peccare? But then perhaps no one will ever point out if the emperor has no clothes, no one will stand up to the King. The constitution has vested the court with weapons. To stand up to the king when he is doing wrong, and to defend his subjects who seek to merely live their lives.
Today, our guards at the gate have laid down their arms. With a single act they have confirmed what we suspected all along, that a part of our society has no claim to citizenship. Has no right to live in a manner it pleases and chooses, has no right to privacy and has no right to be recognised as human. When the arms fall silent, the laws prevail. Today, the law prevailed, but the law is harsh, the law is in the darkness for the guard has refused to pierce the veil and let the light in.
When the sun rises tomorrow, it shall not shine on them, for they have been denied the right to seek the light, to feel the warmth of liberty their fellow citizens enjoy. All because, they are born of an order which is “against nature”. They are born different and they don’t deserve it. They are not considered model Indian citizens, they who serve at the bar, who serve in our armed forces, who are doctors, farmers, cab drivers, academics, students, teachers, friends, family don’t deserve to have the light of Article 21 shine on them.
The verdict of the Surpeme Court is not a judgement on law, it is a judgment on people, and we told a weak section of our citizenry that the law would not protect them. They are on their own. On 11 December 2013, we killed our constitution and our systems of jurisprudence. No longer can we hold our heads high in the face of the world and take pride in our system of law. For today, the Constitution was silenced and suspended by a bygone generation who seek to live in an even more bygone era.
Ajay Kumar is a lawyer practising in the Bombay High Court. Ajay is interested in the areas of civil litigation and corporate work. Ajay graduated from School of Law, Christ University, Bangalore. In his free time, he likes to read, write and collect vinyl records.
The Supreme Court of India in recent times has been in the news for all wrong reasons. The biggest blot on its history came this year when, Justice Bhaskar Bhattacharya, then Chief of the Gujarat High Court alleged that he was not elevated to the Supreme Court onlybecause he objected to the elevation of Justice Altamas Kabir’s sister to the Calcutta High Court. While most media covered this supersession of Justice Bhattacharya, they failed to take note of two other related incidents.
However these incidents were reported by Manoj Mitta here before Justice Bhattacharya’s revelations. To quote Mitta, “The first instance was in January 2009 when C T Ravi Kumar, a close relative of the-then CJI, K G Balakrishnan, was appointed as a judge of the Kerala High Court. This was followed by the appointment in September 2010 of Justice Shukla Kabir Sinha, sister of Justice Altamas Kabir, as a judge of the Calcutta High Court.” Mitta adds that shortly after these two elevations, the then CJ’s of these two High Courts; namely Justice H L Dattu from Kerala High Court and Justice S S Nijjar from Calcutta High Court were elevated the Supreme Court. Both the supersession of Justice Bhattacharya and elevation of close relatives of two Supreme Court justices escaped the attention of the persons concerned and these incidents were never investigated.
I recently came across a letter (dated 5th May, 2013) allegedly written by Dr. M Furquan. The contents of the letter deserve serious and immediate attention but this is being only circulated among lawyers and judges secretly. There is not much information available about Dr. Furquan or means to contact him. A Supreme Court judgment mentions Dr. Furquan as the editor of a fortnightly Urdu newspaper by name ‘Sach Bilkul Sach’.
What matters is not the credibility of Dr. Furquan but the seriousness of the allegations raised by Dr. Furquan and some of these allegations have already turned out to be true. Earlier this year, when I first received the copy of this letter, I wanted to write about it while I was working at Live Law; but a threat of contempt held me back from publishing this. Later, pilot edition of Crime Magazine (English), run by Kerala based journalist, T P Nandakumar carried a more detailed story on this but it was hardly noticed. Nandakumar is often seen as a pulp journalist by the mainstream media; but the truth remains that most of his exposes were picked up later by the mainstream media itself. I would like to thank Nandakumar for providing me a copy of some documents needed to run this story.
The letter alleges that Justice Altamas Kabir is the most corrupt Chief Justice India has ever seen. It says Justice Kabir has delivered judgments and passed orders in favour of various people, after charging crores as bribe. Particularly the letter says, though it was Justice G S Singhvi, who was hearing the 2G scam case; on a special mention before the CJI Court, Justice Kabir allowed non appearance of certain persons before the Special Court trying the 2G case. Similarly in the Sahara Case, though Justice K S Radhakrishnan was hearing the case, on a special mention before the CJI Court, Justice Kabir allowed more time to Sahara for payment of money to SEBI. Later another petition was moved by Sahara before the CJI Court and Senior Advocate M N Krishnamani objected to the CJI court hearing this. In an unprecedented intervention, the Bar Chief said, “In keeping with the traditions of the court, I request you not to modify an order passed by another bench." You can read more on this here.
These facts need to be read along with the observations made by the present CJI, P Sathasivam in the Jai PrakashAssociates Limited’s case. A bench headed by Justice Sathasivam refused to extend order passed by the predecessor bench (comprising Justice Altamas Kabir), which granted interim protection to Jai Prakash Associates Limited from paying 25 Crores. The Bench said, “We do not approve of the manner in which the interim orders came to be passed. We do not sit on appeal over orders passed by a coordinate bench. These orders should not have been passed”. This statement by Justice Sathasivam seems to be a testimony for allegations raised by Dr. Furquan.
The most important allegation is with regard to the NEET judgment. A Supreme Court Bench headed by Justice Altamas Kabir in this case held that Medical Council of India’s (MCI) and Dental Council of India’s (DCI) notification for holding common entrance test called National Eligibility Entrance Test (NEET) for MBBS, BDS andpost-graduate medical courses is ultra vires the Constitution. Justice Anil R Dave delivered a dissenting opinion. Dr. Furquan’s letter dated 5th March, 2013 indicated that the judgment will be in favour of the medical colleges which challenged the introduction of NEET. The judgment has come out on 18th July, 2013 and Dr. Furquan’s prediction has turned true. Interestingly, Prashant Bhushan in an interview alleged that the NEET judgment was given to private medical colleges well before it was given to Justice Anil R Dave.
There are many other allegations against Justice Altamas Kabir, present CJI P Sathasivam and also ex CJI, K G Balakrishnan. The letter is self explanatory and is available for download below. Towards the end of the letter, Dr. Furquan requests the President to investigate (by the CBI) into the allegations. Dr. Furquan says, “As stated earlier CJI Mr. Altamas Kabir is the most corrupt Chief Justice that India has ever seen. In view of the forgoing, your Excellency is requested to kindly get a thorough investigation done by the CBI on the Chief Justice of India, CJI Mr. Altamas Kabir and also about his entire family members for finding out as to how much financial assets they have accumulated since he took over as the Chief Justice of India, as the details of the immovable property/assets declared by him and his wife on 1.4.2012 (copy of which is enclosed) in Supreme Court Website is far below than the actual assets he and his family now own and also about all other above stated issues to the Director, CBI for thorough enquiry.”
A copy of this letter was marked to several eminent personalities including; Justice G S Singhvi, Prime Minister, Opposition Leader, CBI Director, Justice V R Krishna Iyer, Arvind Kejriwal and Prashant Bhushan. However no action seems to be taken to investigate into the matters mentioned in this letter.
Justice V R Krishna Iyer has written a separate letter (dated 25th May, 2013) to the President of India, requesting to investigate into the matters mentioned by Dr. Furquan in his letter. The letter says, “I have received a letter from Dr. M. Furquan which I am enclosing herewith which casts a spell of moral lapses on the judiciary itself. You, as the President of India are the guardian of its noblest values. May I entreat you on behalf of ‘We, the People of India’ the moral core of the Constitution and the humanity and divinity of Bharat’s cultural heritage. To take action as the sublime head of the Indian Republic against judges who are suspect of moral deviance”. An email sent to Justice Iyer’s office asking if he has been informed of any action taken on his letter, did not receive any response. Justice Iyer’s letter is also available for download below.
In order to restore the credibility of the institution, it is essential to investigate Dr. Furquan’s letter, lest it spells the doom of Indian judiciary!
NB: For republishing rights, please take prior permission from Stripped Law. You can contact me on +91 9400060160 or firstname.lastname@example.org.
Supreme Court image from here.
Download the CLAT 2013 UG Results from this page:
We are extracting below the important observations made in the Report of the First GNLU Review Commission for Stripped Law readers. The full report is available for download below.
1. The Commission met and interacted with students. The students enthusiastically welcomed the initiative and agreed to consult their friends in their respective classes and gather suggestions for submission to the Commission. Some of them submitted a voluminous memorandum of facts and opinions on which the Commission did interact with them as well as with the members of the teaching staff.
2. Regulation No.8 (dealing with Search Committee) has Clause (4) which states, the Executive Council may also recommend the name of a person other than those recommended by the Search Committee, if it has reason to believe that such other person is having regard to the interests of the university suitable to the post of the Director.
This clause (4), in effect, nullifies the recommendations of the Search Committee and tends to defeat the very purpose of a search by an expert group. Further it provides for the appointment of a person whose name may not have been found fit by the Search Committee, or even rejected by the Search Committee. This provision – Clause (4) – in fact, makes a mockery of the provision for a Search Committee.
The Commission is of the view that the Government needs to review the provision in the best interests of the institution. It is submitted that this clause (4) be omitted and to ensure transparency in the appointment of the Director, such appointment should be made only from amongst the panel of three persons recommended by the Search Committee. In case the appointing authority finds difficulty to accept any of the three names, let it ask for a fresh panel from the search committee. This is what is being done in appointment of heads of institutions to ensure credibility, transparency and respect for the office.
3. As the Registrar is the head of the administrative and ministerial staff of the university and the principal officer responsible on all matters pertaining to the administration of the university, it is desirable to appoint a regular whole time Registrar and put an end to the present practice of appointing an officiating Registrar by the Director from amongst the teaching staff of the university.
4. The university is functioning through its various committees, each having a definite mandate and each contributing to the management of the affairs of the University.
As there are no Professors, these committees are headed by Associate/Asst. Professors, necessarily lacking the requisite experience in the matters concerned. Lack of guidance by senior teachers in these committees adversely affects the functioning of the university. Many of these committees deal with important academic matters where junior staff members lacking experience of taking decisions manage the affairs just to keep things functioning. This is a sad situation which needs correction.
5. Appointment of experienced Professors to lead and guide various academic and administrative activities is highly desirable in the interests of the overall development of the university.
6. It is submitted that an effective grievances redressal mechanism need to be set up, or the existing arrangement revamped, so as to inspire confidence amongst the students and the teachers, that their concerns will be effectively addressed by the administration.
7. Effective steps may be initiated to set up a Students Bar Association or a Representative Council and a Faculty Consultative Council so as to provide constructive outlet to ventilate the aspirations of the students and teachers.
8. The idea of giving liberal scholarships and fee exemptions to deserving students admitted on merit is a good policy and deserves to be continued and expanded. The principle of equity and inclusiveness which is a national norm in higher education has to be endorsed and encouraged.
Given the reservations in student admission, there is need for the university to identify early those who need additional help to be able to cope up with the high demands of study at GNLU. Special coaching, mentorship and individual guidance by senior teachers in the first or second semesters would certainly help the weak students to cope up with the high demands of legal studies. Repeat examinations have to be discouraged as it tends to stigmatize and take away attention from their studies.
9. A world class university should be able to dispense with attendance requirement in course of time by motivating everyone voluntarily to participate in learning. Learning is seriously impaired in an atmosphere of mistrust between the teachers and students. GNLU needs to take these issues seriously and work out strategies in consultation with students to ensure voluntary obedience to the rules and regulations of the University.
10. Many applicants for teaching positions are just looking for an employment. They have no experience in the theory or practice of teaching as that is not part of the LL.M. curriculum or NET programme. Some of them have false notions of teaching from the way they themselves have been taught with the result they don’t even care to learn better teaching techniques. Given this situation, the university has no option but to prepare their own teachers through an year long well-organized Teaching Fellowship Programme.
11. It appears from responses received from teachers that there is not adequate communication between the Director and members of the Faculty. They seem to be aggrieved of academic decisions being taken unilaterally without consultation, seminars being organized without an institutional purpose, non-academic activities being imposed without consultation and grievances are not promptly and properly addressed to create a conducive environment for collectively taking the university forward. Without taking sides on the issue, the Commission would suggest the authorities to follow a policy of consultative decision making on academic matters through weekly or fortnightly Faculty meetings and recording and circulating the minutes for action by all concerned including the Director.
12. Already teachers are grudging that they are being compelled to stay on the campus for eight hours a day which they consider to be violative of UGC rules!! There is need for change of this attitude and teachers should voluntarily stay in the accommodation provided by the university. The Director should himself stay in the campus. If sufficient accommodation is not available yet in the campus for all its teachers, the authorities must consider buying or hiring a group of flats in the nearby apartment clusters and making them available to teachers free of rent.
13. Number of training programmes is being organized from time to time depending upon requests from other agencies. The Resource Persons are invited from outside GNLU. How does it help GNLU in its mandate when it is not able to enrich its intellectual or material resources. It is recommended that GNLU may consider establishing an Institute for Continuing Legal Education (ICLE) in view of the felt need and demand for CLE among the legal profession and law teaching community.
14. To be able to develop a work culture of devotion to scholarship, endeavour to do things better and commitment to academic values, the senior faculty has responsibilities to perform. This work culture is not the product of laws and regulations or rewards and punishments alone. They develop through taking everybody into confidence in ‘decision making’, adopting best practices from elsewhere, developing powers and functions to functionaries at all levels and projecting a common vision carefully crafted. This is not to say that these are absent in GNLU, but only to emphasise their importance when one aspires to become world class in a highly competitive environment.
15. GNLU reportedly functions through Committees. Are the committees democratically constituted? Are they given clear mandate, independent authority, and accountability? What is the relationship between the Committee and the Director? How the Committees’ functioning is co-ordinated, audited and assessed? The management culture reflects on academic quality and efficiency of every educational institution.
There are complaints the faculty raised in the constitution and functioning of the Committee system at GNLU. The Commission would only appeal to the authorities including the Director to have a close look at the system and see where corrections are needed to make their functioning smooth, productive and consultative.
16. Public relations is part of legitimate image building of an institution. But when it is overdone it boomerangs particularly when the internal structures and processes are weak, and if there is even a modicum of discontent among the staff or students. Promising more than one can offer through prospectus, advertisements and leaflets should be eschewed. The policy should be to let the programmes speak for itself. This is not to say that GNLU is guilty of it but to empazise a point. After all, for an institution which is still in its infancy, one cannot expect miracles to happen in an environment where academic institutions or even long standing are finding difficult to innovate, experiment and change styles of teaching/learning.
17. During the Commission’s interaction with students it was revealed that there are communication gaps between the students and the administration and there are apprehension of victimisation if they take up their grievances. Even a section of Faculty complained of actions “demeaning the honour of faculty”, too many seminars and training programmes unrelated to faculty/student interests and “conducted for name sake”, appointment of unqualified and inexperienced wardens in hostels etc.
Apparently, the system of grievance redressal is not functioning effectively and there is some amount of suppressed feelings both among faculty and students unrecognised by the administration. The Commission has not probed the problem further to be able to pass any judgment on the issue; but we want to flag the issue that there is some amount of simmering discontent which need to be addressed by the administration in the best interest of the institution.
18. The University spends over Rupees Twelve crores every year to run the institution. The Government has spent nearly 150 crores of rupees to develop the infra-structure. In return for such investments, the University is now able to give education for a total of about 1200 law students each year. The per capita expenditure is fairly high compared to the expenditure on legal education elsewhere in the State. 76% of the expenditure is recovered as student fees. This can be justified only in terms of high quality education offered comparable to the best in the circumstances. In other words, GNLU may sooner or later will be confronted with the issue of quality of instruction in relation to the quantity of fees collected. Public may ask whether the society is getting due return for the investment of tax payers’ money particularly when graduates tend to migrate to the private corporate sector. GNLU now tries to offset such criticism by way of offering a variety of services to corporates, Governments, sister institutions and civil society. All these need to be constantly reviewed to justify the liberal investment Government has made on the institution.
There has been the birth of a new martyr on the horizon among the Muslims of Hyderabad, by the name of Akrabuddin Owaisi, as the now deleted blog IndianMuslimPost puts it. For the rest of the India, he might be a trouble maker who thrives on inciting the communal passions of a religious minority of the country. But for that particular religious minority in the bylanes of Hyderabad, he is nothing short of a hero, a man who will go miles to ensure the ‘long denied justice’ for them. It can only be ironic that, Hyderabad MLA’s father, Salahuddin Owaisi was a veteran investigator of communal riots, who had the respect of one and all in the State administration and had been buried with full State honours.
So, what has Akrabuddin Owaisi been accused of? Why is such a hullabaloo being created? Why is the print, electronic and social media chastising him so violently? Why are the right wing activists unanimously protesting against him? The answer is what we, in layman terms, call hate speech. On 24th December 2012, Owaisi addressed a rally of 25000 people, mostly Muslims, at Adilabad in Andhra Pradesh and made multiple comments against Hindus, Hindu deities, Rashtriya Swayamsevak Sangh (RSS) and Vishwa Hindu Parishad (VHP). There was also a glimpse of pro-Pakistan and anti-Indian attitude in his speech.
But is hate speech something new in India? Let’s have a look. After independence, it has been there since as early as in 1969, when then Shiv Sena supremo Bal Thackeray had incited trouble through his speeches in the majorly violent Maharashtra-Karnataka border disputes. After that, Sena has got into repeated trouble with the police and the authorities for hate speeches and violence against Muslims and non-Marathis. Most recently, Maharashtra Navnirman Sena chief Raj Thackeray, with all his vocal attempts at rousing the “Marathi Manoos” feeling to create trouble for North Indians in Mumbai has time and again faced the media and public ire. And then, we have seen Anti-Muslim speeches by VHP leader Ram Vilas Vedanti and BJP MP Varun Gandhi. Certainly, in the medley of cultures, religions and traditions that India is, hate speech is something that has been thriving here, due to a multiplicity of factors, be it political, social and economic.
In light of the scenario, another question arises. If hate speech has been there in the country since decades and has faced censure, why the insistence on special focus on Owaisi? Is it because he is a Muslim and he was addressing a crowd of Muslims and we, as a country where the majority of the population is Hindu, can’t stand this at any cost? Do we claim to be secular just for the sake of it? Don’t we have an iota of tolerance towards other religions?
The answer to all these questions lies in the negative. Many people have drawn parallels between the infamous Bal Thackeray hate speeches and Owaisi’s speech. However, there are numerous fundamental differences between the two. Agreed, both deal with denigration of another community, both sound out the bugle for arms cloaked in religious terminology, both project themselves as saviour of a particular community. But that’s where the similarity ends. Thackeray used to refer to Muslims in a derogatory fashion in his speeches, but not even once ever did he speak a word about Prophet Mohammed. Owaisi, on the other hand, in his speech, proceeded to abuse Hindu deities, customs and traditions. Secondly, Thackeray’s target was the always the ruling Congress Government at the Centre or the Maharashtra Cabinet. Owaisi, on the other hand, refers to “Hindustan”, not once, but repeatedly. He warns “Hindustan” not to trifle with “us”. One cannot help but wonder, isn’t Owaisi and the community that he claims to represent, a part of “Hindustan: as well? Doesn’t this amount to spreading feelings of separateness from the country in a specific community? If Thackeray was charged with promoting enmity between communities and booked under Section 153(A), shouldn’t Owaisi be charged with spreading feelings of hatred against the country among his community? There is one more difference. Thackeray used to look at issues either through the prism of a communal or regional identity. Owaisi couples the communal angle with a view through a windowsill that is different and distinct from the rest of India. His constant reference to “Hindustan” as a “land of Hindus” vis-à-vis, “us”, the Muslim community, stands proof to this. This outlook permeates Majlis-e-Ittehadul-Muslimeen (MIM), Owaisi’s political party.
However, the Owaisi issue aside, hate speech, as a mechanism, has been used in India systematically in recent times, during and after elections, to whip up communal hatred and even actual violence. It is high time that we look at how repeated misuse of freedom of speech translates into hate speech, polarising communities and in many cases, degenerating into actual violence.
Relevant sections of Indian Penal Code and Representation of People’s Act have appropriate measures to deal with hate speeches but they have been rarely used. There are a few sections in Indian criminal law and election law that unequivocally restricts and restrains the use of hate speech and empowers the Government, the police and the judiciary to enforce them. Sections 153 A and B of the Indian Penal Code (IPC-offences for promoting enmity between different groups on grounds of religion, race, place of birth, language etc and doing acts prejudicial to maintenance of harmony or prejudicial to national integration) and Sections 123 A and B of the Representation of People’s Act (RPA—that, 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). These provisions co-exist with other, broader provisions of the Indian Penal Code, with significant implications for ‘hate speech’. These provisions include the following:
Section 295, which prohibits ‘injuring or defiling [any] place of worship with intent to insult the religion of any class’;
Section 295A, which prohibits ‘deliberate and malicious acts, intended to outrage religious feelings or any class by insulting its religion or religious beliefs’;
Section 298, which prohibits ‘uttering words, etc, with deliberate intent to wound religious feelings’;
Section 505(1), which prohibits ‘statements conducive to public mischief’;
Section 505(2), which prohibits ‘statements creating or promoting enmity, hatred or ill-will between classes’.
The approach of the Indian judiciary towards issues of ‘hate speech’ (as they intersect with questions of ‘public order’) has been exemplified, and in many senses established, by the landmark case of Ramji Lal Modi v State of Uttar Pradesh (1957). In this case, where the person concerned had tried to incite a large Hindu crowd against Muslims in Uttar Pradesh, the Supreme Court of India upheld the constitutionality of section 295A of the Indian Penal Code as a ‘reasonable’ restriction upon free speech ‘in the interests of’ public order. The Court rejected the need for any nexus between acts possessing ‘a tendency to cause public disorder’ and the actual occurrence of such public disorder. Indian judiciary, in most cases, has adopted a broad construction of the ‘interests of public order’, while relating to hate speech. It has time and again relied on Human Rights Resolution 13/16, Combating Defamation of Religions, which appropriately addresses the need for a balance between freedom of speech and religious freedom. However most of the actions of the judiciary relating to hate speech are responses to immediate political and religious controversies, not substantial contributions to international human rights jurisprudence.’
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 in the public arena, by actions of the executive and judiciary, whenever violations of these laws take place is as much necessary for upholding the secular intent of the Constitution of India.
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