Illegal Ban on Freedom of Speech and Thought - II13/02/2010 01:44:20 V SUNDARAM
In Part I
of this article I have clearly described as to how the openly anti-Hindu and Islam embracing Government of Maharashtra blatantly imposed an illegal ban on the purely academic book on militant Islam authored by the Senior Supreme Court Advocate Sri R.V Bhasin in 2007. The Law of Three (3) Year Limitation prescribed in Section 468 of CrPC was thrown to the winds by the Government of Maharashtra in 2007—4 years after the publication of the book in question and after nearly 10,000 copies had been sold in the world market!! Sri R.V Bhasin appealed against this unjust and wicked Government Order in the Bombay High Court in 2007. The Bombay High Court in their ill-considered, loosely drafted and wobbly Order delivered on 6-1-2010 confirmed the lawless Order of the Government of Maharashtra sending a completely wrong signal not only to all the responsible lawyers but also to all the law-abiding citizens of India who respect the legal sanctity of CrPC as a whole in general and Section 468 of CrPC in particular. Violating the Law of Limitation laid down under Section 468 was viewed casually by the Government of Maharashtra as a matter of administrative (apart from political/Sonia Congress Party) discretion!! Three years later the Bombay High Court lent ‘judicial dignity’ and ‘legal sanctity’ to the planned murder of law of limitation under Section 468 of CrPC committed by the Government of Maharashtra in 2007 by declaring that illegal ban on the book in question as wholly legal and valid in law!!
In short the Bombay High Court acted on the judicial assumption that it is vested with indefinite and infinite judicial powers to prescribe or proscribe, to regulate or to amend the manner and measure of adherence to the Law Of Limitation under Section 468 of CrPC. The Bombay High Court seems to be under the wrong impression that to condone the non-observance of or non-adherence to the Law of Limitation under Section 468 of CrPC belongs to the sovereign domain of unfettered judicial freedom and discretion!
The judicial tragedy is that by giving a legal death blow to the Law of Limitation under Section 468 of CrPC, the Bombay High Court has taken us to the days of STAR CHAMBER in English History! The Star Chamber (Latin Camera stellata) was an English court of law that sat at the royal Palace of Westminster until 1641. In modern usage, legal or administrative bodies giving arbitrary rulings divorced from the Letter and Rule of Law are sometimes called, metaphorically or poetically, Star Chambers.
The Bombay High Court through its wholly arbitrary and one-sided order has legally denied freedom of thought and belief guaranteed in our Constitution to Sri R.V Bhasin, the Senior Advocate of the Supreme Court of India. Freedom of thought (also called freedom of conscience and freedom of ideas) is the freedom of an individual to hold or consider a fact, viewpoint, or thought, independent of others' viewpoints. It is closely related to, yet distinct from, the concept of freedom of expression. We must learn from American experience.
The First Amendment to the US Constitution was part of the Bill of Rights. The First Amendment prohibited the Congress from making laws …impeding the free exercise of religion, infringing on the freedom of speech and infringing on the freedom of the press. The Fourth Amendment to the United States Constitution was the part of the Bill of Rights. This was meant to guard against unreasonable searches and seizures. The amendment specifically prescribed that all search and arrest warrants should be judicially sanctioned and supported by probable cause. The residence of R.V Bhasin was raided by the Bombay Police without any search warrant. They seized nearly 900 copies of R.V Bhasin’s Book and took them away without the consent of Bhasin who was not present at his residence at that time. The American Supreme Court has clearly stated that certain searches and seizures have violated the Fourth Amendment in certain cases even when a warrant was properly granted. In this context the general Principle of Law laid down by the Supreme Court of America has to be kept in view: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”
I have carefully gone through the text of the Order issued by the Bombay High Court. The only inference I can draw is that the ‘learned’ Judges in question seem to have no faith in Free Trade in Ideas.
Writing on the poverty of the Indian liberal response to the recent ban on Jaswant Singh's book, Prithviraj Datta says that "this reactive defense of free speech is problematic, because it makes the right to speak one’s mind dependent on empirical factors, like the possibility of riots, not on normative considerations. The freedom of expression is not a constitutional guarantee which exists solely for the purpose of ensuring that citizens are kept informed about the activities of their government. Like the right to equal protection of the laws, unhindered freedom of expression deserves heightened protection because the espousal of one’s views and beliefs is regarded as being fundamental to one’s IDENTITY. Since human beings rarely exist in a social vacuum, our ability to communicate to others, and be receptive of their responses, is an important determinant of who we are. Much like one’s sexual orientation, therefore, one’s ability to disseminate one’s views should not be subject to censorship where it contradicts the views of others, and causes them offence. In such a case, the constitutional mandate of equal protection will be violated, for one’s ability to express one’s identity will be made entirely subservient to the demands and feelings of one’s community. A STATE WHICH PERMITS INDIVIDUAL FREEDOMS TO BE RESTRICTED IN THIS MANNER IS NOT A STATE WHICH RESPECTS LIBERTY. SUCH A RESTRICTIVE STATE IS ALSO INCAPABLE OF RESPECTING EQUALITY.” The Bombay High Court seems to have little or no respect for such values of freedom of thought and freedom of speech.
Long after the judicial proceedings were set in motion in the case in question, the following five Islamic communal organizations were allowed by the Bombay High Court to enter as ‘Interveners’ in the case of Shri Bhasin against the Government of Maharashtra.
1 Indian Union Muslim League
2 Maharashtra Muslim Lawyers Forum
3 Islamic Research Foundation
5 Bombay Aman Committee
Islamic Mindset the world over!
Viewed as legitimate minority rights by Bombay High Court!
We can clearly see from their submissions that they hate the free thoughts expressed by Sri R.V Bhasin in his book. According to the Quran, Bhasin is a condemned Kafir who has no right to even exist, let alone Islamically frivolous things like Freedom Of Speech. Therefore they chose to go along the obstructive path of illegal litigation (long after the prescribed Period of Limitation under Section 468 of CrPC was over!) to deny both the Freedom of Thought and the Freedom of Speech to Sri R.V Bhasin. Here the timeless words of Justice Oliver Wendell Holmes (1841-1935) are wholly applicable: “If there is any principle of the American Constitution that more imperatively calls for attachment than any other it is the principle of FREE THOUGHT---not free thought only for those who AGREE with us but also freedom for the thought that we HATE. I think we should adhere to that principle with regard to admission into, as well as life within, this country.” Do we have such noble judges in our country, today? The likes of ‘exemplary’ Judges like Justice Dinakaran of Karnataka High Court and Justice Soumitra Sen of Calcutta High Court, with ‘unimpeachable integrity’ and ‘sterling character’ seem to be ruling the roost in most of our High Courts today, delivering arbitrary judgments offhand and making the timeless observations of that great American Judge Justice Jackson never more relevant than now: “The most odious of all oppressions are those which mask as justice.” (Krulewitch vs United States 336 US. 1949).
I have no doubt that another great American Judge Justice Learned Hand had our High Court Judges in mind when he stated in a famous case in 1951 (Legal Aid Society of New York vs US #4, 1951): “If we are to keep our democracy, there must be one Commandment. Thou shalt not ration justice.” Most of our courts of law seem to be functioning as ‘commercial / political’ ration shops for officially doling out blatant injustice. Going back earlier in time, the following Commandment listed in Magna Carta seems to be more relevant to all our High Courts today than it was in the days of King John I in England who put the Royal Seal of his approval at the meadow of Runnymede on 15 June 1215: “TO NO ONE WILL WE SELL, TO NO ONE WILL WE REFUSE OR DELAY, RIGHT OR JUSTICE.”
I fully endorse the observations of Justice Cardozo of America that: “Civil liberties are not empty slogans but cherished protections of the human spirit. They derive their meaning from history and are given pertinence by the contemporary society”.
Justice Brandeis of America said: “The test of freedom of speech is readiness to allow it even to men whose opinions seem to you wrong and even dangerous”.
Even a cursory perusal of Shri Bhasin’s book would show that his views are neither wrong nor dangerous. They are not wrong because his views are based upon irrefutable documents of Islamic history. They are in no way dangerous because his book was published in 2003 and no untoward incident of any communal violence took place for 4 years from 2003 to 2007. Only in 2007, the Government of Maharashtra illegally banned the book long after the expiry of the prescribed Period of Limitation under Section 468 of CrPC. Later, when Shri Bhasin took up the matter on appeal, in 2007, the Bombay High Court took nearly 3 years to confirm the illegal orders of the Government of Maharashtra, 4 years after the expiry of the Period of Limitation under Section 468 of CrPC. The fears expressed both by the Government of Maharashtra in 2007 and the Bombay High Court in 2010 regarding the imminent outbreak of communal violence following the free circulation of Shri Bhasin’s book seem to be baseless, unnecessary, uncalled for and without any foundation in fact.
In my view the unnecessary and illegal ban imposed by the Government of Maharashtra in 2003 and wrongly confirmed by the Bombay High Court in Jan 2010 can serve as open invitations to the sudden breakdown of communal harmony leading to violent communal riots. I am saying this in the light of my experience as a District Collector and Magistrate of Tirunelveli District when I had to put down communal riots with an iron hand on more than one occasion. Such riots were the flash-back outcome of immature and knee-jerk actions of Government based on political impulses of the moment, totally divorced from ground realities. Here again the cutting and slashing words of Justice Brandeis are very apposite: “Freedom of speech, freedom of thought and freedom of assembly are empty phrases if their exercise must yield to unnecessary fear”. In my humble opinion both the Government of Maharashtra and the Bombay High Court have yielded to unnecessary fear --- the former in 2007 and the latter in January 2010.
Blatant acts of Islamic terrorism resulting in the deaths of hundreds of innocent citizens and large-scale destruction of property have all been viewed for long with indulgence by the Governments after our independence. Tragically, now even by the Courts of Law in India, seem to be going on the same Government trodden path today. Fred E. Inbau was right when he said: “No democracy can long survive when it tolerates anarchist conduct on the part of its own citizenry. It should not and can not be tolerated, regardless of the group --- white or black --- and regardless of whether the cause involved is a righteous one or an unrighteous one.”
There is also another vital dimension to this issue. Truth and knowledge can function and flourish only if error may freely be exposed. And error will go unchallenged if dogma, no matter how widely accepted or dearly held, may not be questioned. Every man must be allowed to challenge it by speech or by pen, not merely by silent thought. Thought, like other instincts, will atrophy unless formally exercised. If men cannot speak or write freely, they will soon cease to think freely. These vital factors seem to have been deliberately lost sight of by the Bombay High Court. All this drama seems to stem from the uncalled for sensitivity and regard to the over riding ‘political vote-bank supremacy’ of Islamic minorityism officially pronounced by the Prime Minister of India as a matter of high state policy under the canopy of “MUSLIMS FIRST” Policy.
In my view, the judgment of the Bombay High Court is heavily loaded against the Hindus of India in general and Shri R.V Bhasin in particular. On the other hand the one-sided judgment fully extols the transcendental violent virtues of compassionate Islam as narrated in the Quran!
Bhasin has rightly argued in his book that the philosophy of Islam openly encourages jihad which is the Islamic term for terrorism, and that it does not tolerate the tenets of other faiths. The Bombay High Court has stated: “Ayats (Quranic verses) will have to be correlated. Some of the Ayats are indeed strongly worded and appear to have been directed against idol worshipers. 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...”. The Court has not stated to what era these Ayats relate to. At any rate insofar as India is concerned the simple truth is that the Muslim marauders (here the private views or perspectives or prejudices or predilections or propensities of the Judges of any court of law in India are of no relevance whatsoever!) invaded India right from the days of Arab conquest of Sindh in 712 AD till the days of invasion of Ahmad Shah Abdali in 1761 AD. Mohammad of Ghazni in the 11th Century, Mohmmed Ghori in the 12th Century, Qutub-ud-din, Iltutmish and Balban in the 12th Century, Allauddin Khalji in the 13th Century, the Tughlaqs and the Timur in the 14th Century, the Lodhis in the 15th Century, Babar and Akbar in the 16th Century, Jehangir, Shahjehan and Aurangazeb in the 17th Century have destroyed more than 30,000 Hindu temples in different parts of India for which there is irrefutable documentary evidence from contemporary Islamic sources in Persian, Arabic, Turki, Urdu languages. Would the Bombay High Court have us believe that the “Compassionate” Muslims who came to India as armed robbers and invaders had a Quaranic right to Invade India? Would they say that those “Peace-loving” Islamic invaders who came to India were savagely attacked first by the “Violent Pagan” Hindus of India? Would these “secular” judges say that the Muslim invaders only had the Quranic right to destroy the Hindu Temples of India because the peaceful Muslims were attacked by the Pagans at Mecca and Medina in the 7th century? Our patently anti-Hindu Courts of Law (Bombay High Court not excluded!!) would treat the following documentation of Islamic destruction thousands of Hindu temples done by Sitaram Goel either with Islamic contempt or secular contempt sanctified by our fundamentally anti-Hindu Constitution!
Complete Documentation of Destruction of Hindu Temple
Even as I know the mindset of Islamic marauders, I also know the mindset of the judicial marauders of the peace-loving Hindus of India, masquerading as impartial judges, in all our disgusting Courts of Law divorced from equity and natural justice. Another serious problem relating to our Courts of Law arises from the widely known public fact that many of our judges (Supreme Court of India not excluded!) do not want to look at stark, ugly, cruel, barbarous and sadistic facts relating to the criminal political record of large scale Islamic destruction of Hindu temples in India. Shri.Prafull Goradia, a former Member of Parliament and a profound scholar, has fully documented the history of many historic Hindu temple sites which were savagely destroyed by the Muslim invaders and Emperors for more than 1500 years. I am presenting below the front cover of this book.
Prafull Goradia would be dismissed by the Muslims of India as a KAFIR. Our anti-Hindu secular Courts of Law (including of course the Bombay High Court!) would dismiss him as a Communal Hindu!
Will Durant, the world famous historian, who wrote several volumes of Story Of Civilization summed up the destructive record of Islam in India in the following words:
“The Mohammedan conquest of India is probably the bloodiest story in history. The Islamic historians and scholars have recorded with great glee and pride the slaughters of Hindus, forced conversions, abduction of Hindu women and children to slave markets and the destruction of temples carried out by the warriors of Islam during 800 AD to 1700 AD. Millions of Hindus were converted to Islam by sword during this period.”
Many of the Courts of Law in India would love to ignore if not dismiss the above observations of Will Durant as rabidly communal and anti-Muslim, written with the deliberate “Right-wing Hindu Fascist” intention of hurting the religious feelings of the “peaceful and ever-compassionate” Muslims of India and inciting communal disharmony.
The text of the Bombay High Court judgment is based on distorted views of history and many legal infirmities including wrong interpretations of existing laws and summary rejection of the letter and spirit of Section 468 of CrPC is full of vague generalizations, generalities and other kinds of vacuous obiter dicta.
All this has resulted in total miscarriage of justice in the case of Shri R.V Bhasin. In this context of total denial of equity and natural justice under the law to Shri R.V Bhasin, the quotations from Justice Felix Frankfurter and Jeremy Bentham are very relevant and fit into the current legal context like a round peg in a round hole.
A. “Ambiguity lurks in generality and thus may become an instrument of severity.” - Justice Felix Frankfurter in McComb v. Jacksonville Paper Co. The obiter dicta in the Bombay High Court judgment are generally ambiguous, particularly ambiguous and uniquely ambiguous. The burden of this severity is being borne by the innocent and aggrieved party i.e Shri R.V Bhasin.
B. “… it is never the Law itself that is in the wrong: it is the wicked interpreter of Law that has corrupted and abused it.”. - Jeremy Bentham in A Fragment on Government and an Introduction on the Principles of Morals and Legislation.
In conclusion I would say that many of our Courts of Law have ceased to be Temples of impartial and fearless Justice. The sacred, ethical, moral and time-honoured Law of Obedience to the Unenforceable seems to have been thrown to the winds by most of our judges. What is this Law of Obedience to the Unenforceable? I can only answer this question in the timeless words of Lord Chief Justice of England Rt Honourable J.F Moulton (1844-1921): “There are three great domains of Human Action. First comes the domain of Positive Law, where our actions are prescribed by written laws binding upon us which must be obeyed. Next comes the domain of Free Choice, which includes all those actions as to which we claim and enjoy complete freedom. But between these two there is a third large important domain in which there rules neither Positive Law nor Absolute Freedom. In that domain there is no LAW which inexorably determines our course of action, and yet we feel we are not free to choose as we would. The degree of this sense of a lack of complete freedom in this domain varies in every case. It grades from a consciousness of a DUTY nearly as strong as Positive Law, to a feeling that the matter is all but a question of personal choice. Some might wish to parcel out this domain into separate countries, calling one, for instance, the Domain of Duty, another the Domain of Public Spirit, another the Domain of Good Form; but I prefer to look at it all as ONE DOMAIN, for it has one and the same characteristic throughout --- it is the DOMAIN of Obedience to the Unenforceable. … To my mind the real greatness of a nation, its true civilization, is measured by the extent of this Land of Obedience to the Unenforceable.”
Section 468 of CrPC which has laid down the 3 year Rule of Limitation was administratively and politically ignored by the Government of Maharashtra in 2007 when they initiated illegal action against Shri R.V.Bhasin. When Shri Bhasin appealed against that irregular Order in the Bombay High Court, after a period of nearly 3 years of tortuous judicial proceedings, the Bombay High Court also chose to smoothly judicially glide and gloss over both the law of limitation under Section 468 of CrPC and also the fact that the Maharashtra Government had willfully violated Section 468 of CrPC in 2007. Both the Government of Maharashtra and the Bombay High Court have clearly shown that they do not believe in strict legal adherence to the letter (leave alone the spirit) of the law under Section 468 of CrPC. When they have no concern for the letter of the law, how can they be expected to show any regard or respect for the Law of Obedience to the Unenforceable!
Seeing the illegal way in which the Bombay High Court has dismissed the appeal petition of Shri R.V Bhasin, I can only say this. If I am stopped by a stranger on the road in Bombay who demands my gold watch and chain, I will refuse to part with it. If he goes on insistently demanding, I will get very angry. If he wants to fight me on the road, I will fight him, but if he says ‘I will take you to the Court’, I will immediately without any murmur hand over my gold watch and chain and run away from the scene like a race horse!
This perception is at my personal level which can be brushed aside with contempt by all our Courts of Law. Therefore in order to fortify my arguments, I would refer to what Lord Reading (1860-1935), Lord Chief Justice of England and later Viceroy of India had to say on the occasion of the inauguration of the new building of the Patna High Court. Justice P.B Gajendragadkar has narrated this incident in his book ‘To the Best of My Memory’, (pg, 353-356). On that historic occasion, Lord Reading made an eloquent speech praising the British Rule in India. Later there was a garden party where a layman asked him: “Why do you call your Courts, Courts of Law rather than Courts of Justice?” In a tone of sardonic humour Lord Reading promptly replied: “Government does not believe in using satire in determining the nomenclature of their institutions”. As my way of joking is to tell the truth, I cannot help saying that what was said in a lighter vein by Lord Reading about the Courts of Law during the days of British Raj has turned out to be a bit of concrete truth in the Secular, Democratic, Socialistic Republic of India today!
Speaking in the Constituent Assembly in 1947, Jawaharlal Nehru had said: “No Supreme Court and no judiciary can stand in judgment over the Sovereign Will of Parliament representing the will of the Community. If we go wrong here and there, it can point out but, in the ultimate analysis where the future of the community is concerned, no judiciary can come in the way. … It is obvious that no Court, no system of judiciary can function in the nature of the Third House, as a kind of a Third House of Correction. So it is important that with this limitation the judiciary should function.” THE BOMBAY HIGH COURT HAS TRANSGRESSED ALL LEGAL AND CONSTITUTIONAL LIMITS BY DOING JUST THAT!
(to be continued)