Thackeray and Owaisi: Busting the Myth of Similarity. Hate Speech Laws in India.

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 24^th 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.

Why Justice Cyriac Joseph does not deserve a post retirement post

While Justice Cyriac Joseph was about to retire as Supreme Court judge, a good friend of mine in the Supreme Court brought to my notice an interesting fact – that Justice Joseph  was leaving without delivering any judgment. My friend rued that he might be the first judge to leave the Supreme Court without delivering a judgment or very less number of judgments. I decided to dig into this and did a comprehensive study of how many judgments Justice Joseph had delivered. I also made a comparative analysis of his fellow judges lest the study be criticised as a window to give vent to personal vendetta. This was story behind the genesis of the ‘Judges Scorecard’ column (now Verdictum) in Bar & Bench. If not for the Contempt law, the title of the column would have remained ‘Judges Scorecard’.

I analysed the tenure of as many as forty two judges and the data corresponding to their performance. Justice Joseph had penned down only six judgments in 1300 days during his tenure of roughly four years. Among these six, one judgment was delivered in 2010, two judgments in 2011 and three in 2013 few days prior to his retirement. I had  also obtained data on the number of days served and the number of judgments delivered by  the other Judges (both retired and still serving) in the last three and half years to obtain some comparative data.

I quote from the report published in Bar & Bench, “Comparing Justice Joseph`s performance with his fellow judges, there seems to be a huge difference in number of judgments delivered. During Justice Joseph`s tenure, judges including Justice S. H. Kapadia, Justice Altamas Kabir, Justice Dalveer Bhandari, Justice D. K. Jain, Justice P. Sathasivam etc. have penned down more than sixty judgments each. Furthermore, there is a marked difference, when compared to judges like Justice Arijit Pasayat and Justice S.B. Sinha, who have penned down as many as 426 and 336 judgments respectively. Although the number of judgments written by a judge cannot be seen as an exhaustive benchmark for their performance, it does provide certain indications.” 

Few months later, I came across the news that Justice Joseph was being appointed as the Chairman of Telecom Disputes Settlement Appellate Tribunal (TDSAT), New Delhi. I found this to be a hilarious joke as Justice Joseph was coming as a replacement for Justice S. B. Sinha. Justice Sinha during his judgeship was known for being a workaholic while Justice Joseph was infamous for being a habitual laggard. A Bar & Bench reader raised an important question in the story relating to Justice Joseph’s appointment, which I quote below:

“Who will write the judgments now?” The other comments in the story itself are indicative of Justice Joseph’s work style.

In early March, Economic Times reported that the Centre had asked the Chief Justice to take into account a report from an "agency" before taking a final decision on Justice Joseph’s appointment to the TDSAT. The report had not raised any issues relating to integrity; but it had observations on the former judge's "style of functioning". In particular, the report had commented on alleged delays in delivering verdicts.  It is also interesting to note that due the ambiguity prevailing over Cyriac Joseph’s Chairmanship, TDSAT had been rendered defunct with the retirement of its only serving member, P.K. Rastogi. How the tribunal will fare with Cyriac Joseph at its helm is anybody’s guess. A few days back, Indian Express reported that, “Since the UPA government's move to appoint former Supreme Court Judge Cyriac Joseph as chairman of the Telecom Disputes Settlement Appellate Tribunal (TDSAT) has come a cropper apparently because of an adverse report by an intelligence agency, the government is now learnt to be planning to make him a member of the National Human Rights Commission”.   

How a Judge found unfit for the post of TDSAT chairman owing to his working style is fit for another post at National Human Rights Commission (NHRC) is inexplicable. Justice Joseph’s record clearly indicates that he has done no substantial work at the Supreme Court of India. The figures indicated in the Judges Scorecard report and the fact that he heard Mulayam Singh’s disproportionate assets case for three years and left without delivering a judgment testifies that. Appointment of Justice Joseph to any judicial or quasi judicial post is nothing short of outrageous, especially during times when the propriety of post retirement posts and benefits for Supreme Court judges are being fiercely debated. At a time when our justice dispensation system is breaking under the burden of backlogs, Justice Joseph has set the wrong example by his lacklustre show at the Apex Court.

He, therefore, does not deserve to be appointed to another post and be allowed to enjoy all the luxuries that accompany it and thereby waste the taxpayers’ money. If the government does not want the Tribunals and the Commissions to be rendered defunct, appointment of Justice Joseph should be reconsidered.

Legal Education in India

Legal education in India hitherto has been notionally perceived as a domain integrally gelled with the judicial establishment associated with its 'colonial legacy’ tag though there has been a slow paradigmatic shift in the pedagogy in the last decade or two.

The post-47 Indian state’s obsession with 'modernity' and 'development' has unmistakably prioritized science, technology and medicine as the frontier areas of pedagogic discourse and the middle class in India has been largely hooked on this 'mantra'... Even though the Nehruvian phase witnessed innovative impetus for promotion of liberal ‘science’ and humanities given his ideological and professional background, his advocacy of ‘scientific temper’ unquestionably privileged science as ‘the’ area of study and research per se
Without going for sweeping generalization, it still can be argued that the trend has pitiably pushed study and research on philosophy, ethics, history, law and governance etc. almost to the margin, and the trend of peripherialisation perhaps reached its logical climax with the call of ‘end of ideology/history’ coinciding with the advent of globalization.

It is in this historical trajectory, one needs to think how academics in these domains continues to be seen with low priority in terms of career choices, popular appeal and an unfortunate lack of decisive state intervention ‘to remedy’ the structural anomalies visibly afflicting these areas. The reality is: India’s journey of ‘modernity’ will remain utterly hollow and sham in the absence of ‘empowerment’ of these intellectual enterprises.

The institutional legitimacy of law schools can really scale hegemonic heights when it gets transformed as a site not for learning the ‘black letters of law’ but instead becomes platforms to ‘cultivate critical thinkers, social reformers and creative leaders free to pursue an array of career options’. Here lies the undeniable justification for roping in legal academics proportionately in the regulatory body for legal education for policy prescriptions and norms on legal education, than mindlessly making it an outfit or a remote control of Bar Council of India (BCI).

Isn’t it that ‘babudom’ wherever they are, shouldn’t be an irritant on our often proclaimed march to match global excellence? Otherwise perhaps, one wonders, the fond conviction (?) of PM In branding National Law Universities (NLUs) “islands of excellence amidst a sea of institutionalized mediocrity” will remain a myth.

In this light, the ongoing hullabaloo over the Bar Council of India’s ongoing protest over divestiture of their control over legal education in India via the proposed Higher Education and Research Bill assumes widespread significance.

The proposed Bill is a radical departure from the existing, non-performing, multiple regulatory system to a decentralised, disclosure-based, self-regulating arrangement. The Bill envisages the legal academia to call the shots in administration of legal education in the country instead of the bureaucracy, in whose hands the power is vested presently. It lays greater emphasis on research promotion and innovation in higher education. It will enable the vice-chancellors of various law universities to lead and coordinate ample legal research in their institutions rather than scurrying around places in search of funds from different government sources. A standard setting for competitive excellence, a necessary component for any kind of global education services, is now often neglected and fragmented. Apart from facilitating a holistic hassle-free education, the Bill also provides for norm-based and performance-based distribution of grants, without distinction between Central and State Universities, which is a welcome thing in the context of globalisation and knowledge-based economy, now in place. The Bill seeks to promote autonomy of higher education institutions and universities for free pursuit of knowledge and innovation. It will promote and coordinate higher education and research through ensuring autonomy of universities, proposing an interdisciplinary framework for law students to have a wider variety of choices in the pursuit of learning, encouraging good practices in universities and promoting research and innovation in higher educational institutions.

The Bar Council of India has been constantly opposing the Ministry of Human Resources Development’s alleged attempt to usurp its regulation of legal education in the country through its proposed Bill. But has the BCI really done anything worth noticing in the sphere of legal education in about half a century, throughout which it has called all the shots?

As far as legal competence is concerned, the Advocates Act of 1961 lays down that the BCI will regulate legal education in consultation with the Universities in India regulating such education. History suggests that nothing of this sort has happened, which is backed by the fact that only one member of the BCI’s legal education committee is a full time academic.

That legal academicians have been constantly snubbed by BCI members and officers when it comes to critical inputs on the administration of legal education in the country is indeed unfortunate. It is denigratory to the role that legal academics have played and continue to play in legal education today. The stranglehold of the Bar Council on legal education is one of the many reasons why law schools in India have remained vocational institutions which churn out reasonably competent lawyers, however fail miserably when it comes to being places of genuine legal scholarship. The faculty at prominent national law schools, legal academicians that they are, in the true sense of the word, have a fairly good idea of the structural reforms that would be required to make law universities places of academic and co-curricular excellence.

As Shamnad Basheer in his column puts it,” the BCI would do well to keep in mind that the purpose of law schools is not to merely mass-produce technically competent lawyers ready to serve the bar. Rather, it is to cultivate critical thinkers, social reformers and creative leaders free to pursue an array of career options. Law schools must therefore be encouraged to experiment with their curricula and conceptualise courses that foster critical and creative thinking beyond the black letters of the law."

Book Review: The Ultimate Guide to the Judicial Services Examination 2013 for all States

By Safi Mohan

I am very glad to inform that I thoroughly examined the 1^st edition of M.A Rashid’s The Ultimate Guide to the Judicial Services Examination 2013 for all States. This book covers 26 subjects and 15 Model Question papers with answer key. This is a useful book for all law students in India, those who are seriously preparing for law examinations, especially Judicial Services, IAS, Law officers in banks and UGC-NET-JRF examinations. Systematic arrangements of subjects, latest case laws, and recent amendments of different Statutes are the highlights of the present work. It is recommended to use recent bare acts along with it. Considering the content and size of the book it is moderately priced and useful for all law teachers and law students and a worthy addition for all law libraries in India. I admire and congratulate the author and the publishers for their sincere efforts and hopefully expecting the 2^nd edition in the next year.

Safi Mohan M.R

Assistant Professor in Law

Govt. Law College, Kozhikode.

NUALS responds to Kerala Government’s queries on the Petition alleging horse-trading for the post of VC

Kerala Government had sought an explanation from the National University of Advanced Legal Studies (NUALS), Cochin regarding a petition submitted by students,parents and alumni alleging horse-trading and political indulgences taking place for the post of Vice-Chancellor at NUALS.

NUALS, through its Registrar, in response to the Petition has submitted an explanation to the Higher Education Department. The explanation mentions that the University has already initiated the steps to constitute a Search Committee to appoint the new Vice-Chancellor in September 2012 and the process is reportedly in progress. The explanation states that apart from this, the University has nothing to do with the appointment of the new Vice-Chancellor.

Further through the Petition, it was also brought to the attention of the Chancellor and Pro Chancellor that the University had failed to appoint a permanent Registrar and the post of Finance Officer was kept vacant since inception. With regard to this, the explanation states that the present Registrar (contract appointee) satisfies all the qualifications for the post as prescribed in the Regulations and term of office has been extended from time to time by the Executive Council after considering his performance. 

Regarding the Statutory post of Finance Officer, the explanation mentions that steps are being taken to appoint a suitable person to the post. The University explanation stated, “Though the University had instituted the post of Finance Officer prescribing the qualifications and other conditions in the NUALS Regulations, the post was created only at the meeting of the Executive Council held on June 30, 2012 in view of the tremendous increase in the financial transactions of the University. “

NUALS through the explanation also made it clear that; the University is not in a position to appoint Registrar and Finance Officer on the scales of pay prevalent in other Universities of the State, due to financial constraints. The University had to meet the entire expenditure including salaries from its own resources and is not receiving any recurring non plan grants from the Government for meeting the expenditure. Details about the financial accounts of NUALS can be read here. 

The petition was submitted to Justice Manjula Chellur, NUALS, Chancellor, who is the Chief Justice of Kerala High Court and the Pro-Chancellor, P K Abdhu Rabb, State Education Minister; regarding the. A copy was also marked to Dr. K. M. Abraham, Principal Secretary, Higher Education Department, Government of Kerala who is also a Member of the Executive Council, NUALS. You can read more about the petition here.