Sunday, January 17, 2010

Indian Court: Freedom of Expression Cannot be taken for Granted

Indian Court: Freedom of Expression Cannot be taken for Granted
Syed Ali Mujtaba

The controversy about banning a book has been raging in India for long. Every time a controversial book is written the cacophony for and against the ban raises its ugly head.

The aggrieved party, complain of malicious writing that hurt their sentiments and demand ban of the book. At the same time, there are voices that raise the bogey of freedom of expression and demand the fundamental right to expression should not be curbed.

So far there is no clear direction on this issue and opinion remains divided. Sometime, politics steps into such controversy and a mountain is made out of such mole. In such a controversy, while those are in favor of ban hardly benefit anything except perhaps self esteem and the right to live with dignity, the allegation of ‘pandering to vote bank politics’ makes martyrs of those opposing the ban.

Recently, in a landmark judgment, the Bombay High Court has tried to address such controversy, giving a direction for future cases of such nature. Notwithstanding, the High Court’s judgment is being challenged in the Supreme Court, the fact remains that the justice delivered upholds the plurality of Indian society and smacks of forbearance, tolerance, peaceful coexistence, the corner stones of Indian culture.

The center of controversy this time is a book written by a Supreme Court advocate and a former Air Force Officer, R V Bhasin entitled; 'Islam – A concept of Political World Invasion by Muslims.'

In this book Bhasin argues that the philosophy of Islam encourages terrorism, and does not tolerate those of different faith. There are several passages in the book including passages about Jihad, the Quran, Prophet Mohammed, Indian Muslims, and religious conversions that depicts Islam and Muslims in poor light and were found objectionable by the Muslims.

The book that was published in 2003 was banned in 2007 by the Maharastra government on the ground that it contained derogatory remarks about Islam and Prophet Mohammad and insulted sentiments of the Muslims in the country.
Bhasin, challenged the ban saying it violated his right to freedom of expression and contended that the book is an historical analysis that throws light on lesser known facets of Islam. He further said the book was published in 2003 but the ban was imposed in 2007 with its copies being confiscated after raiding his office in Mumbai.

A three member bench of the High Court judges comprising Justice Ranjana Desai, Justice Dhananjay Chandrachud, and Justice RS Mohite, after hearing the arguments upheld the ban of the book and wrote a landmark judgment that deserves to be reproduced in some detail.

The judgment begins with generalities and says; “In our constitutional set up, everything is open to criticism and religion is no exception to it. Every religion, whether it is Islam, Hinduism, Christianity or any other religion, can be criticized...

“While we have the right to criticize, the criticism has to be healthy and not malicious. It must not lead to creating ill-will and hatred between communities...”

“The freedom of expression granted by the Constitution should not be used to trigger senseless destruction of lives and property and breach of public order”…

While upholding the ban, the bench said; “If a book reeks of hatred for a community and stirs communal passions, it has to be determined if its circulation would be in public interest”...

Commenting on the book, 'Islam – A concept of Political World Invasion by Muslims' the court observed that authors criticism of Islam is done with deliberate and malicious intention to outrage religious feelings of the Muslims, particularly Indian Muslims and such criticism is not permissible even under the right of freedom of expression.

Bhasin in his book argues that philosophy of Islam encourages terrorism, and does not tolerate those of different faith. He quotes few Quranic verses to substantiate this point.

To this the court observed, in the case of religious scriptures, several interpretations are possible and therefore Quranic verses must be "correlated” and historical background must be kept in mind when interpreting them.

"Some of the Quranic verses are indeed strongly worded and appear to have been directed against idol worshippers but having read the commentaries we feel that perhaps it is possible to urge that they relate to an era when the Muslims were attacked by the Pagans..."

Bhasin has written that Prophet Mohammad had 11 wives, “married and otherwise”. To this the bench observed; “the lurid details allegedly of Prophet Mohammad’s life, the authenticity of which may be challenged by some, could have been avoided by the author. We feel that the attempt is to show Prophet Mohammad in poor light and thereby attempt is made to hurt the sentiments of the Muslims.”

The court found the author’s view that all Muslim youth are misguided and terrorists, objectionable. "It cannot be denied that misguided Muslim youth have indulged in acts of terrorism. But misguided youth are in every religion."

The court observed “India is an amazing mix of people coming from different social and cultural background. Indian Muslims are part of the mainstream of the nation’s life and are contributing to India’s development in all fields.

Upholding the ban, the bench observed; “the author by writing such book has insulted a large section of Indian Muslims. He has tried to create ill-will and hatred between communities and used this means to trigger senseless destruction of lives and property and breach of public order”…

Commenting on the judgment, Bhasin reportedly has said that he will challenge the order in the Supreme Court even though he feels happy to join the ranks of Salman Rushide and Taslima Nasreen.

Bhasin was earlier in news for filing a public interest litigation petition against United States in Indian court for cancellation of US visa to Gujarat Chief Minster Narendra Modi. The petition filed in Baroda purports to hold the United States accountable to the Government of India, State of Gujarat and Narendra Modi as he claimed damages to the tune of $201 million from the US government.

It would be interesting to wait and watch the Supreme Courts ruling on this issue as its only then this story will play itself out.

Syed Ali Mujtaba is a journalist based in Chennai. He can be contacted t

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