Ilegal Ban on Freedom of Speech and Thought – Part 1

published on February 10, 2010

A Bench of the Bombay High Court, consisting of 3 Hon’ble Judges namely Mrs. Ranjna Desai, Dr Shri D.Y Chandrachud and Shri R.S Mohite, passed a patently illegal and unconstitutional order on 6 January 2010 upholding an equally illegal ban imposed by the Government of Maharashtra on a book titled ‘ISLAM: A Concept of Political World Invasion By Muslims’ authored by Shri R.V Bhasin, a senior Advocate of the Supreme Court of India. This book was banned by the Government of Maharashtra in 2007 on the ground that it contained derogatory remarks about Islam and Prophet Mohammad and that it insulted the Muslim sentiments. The Government had said in its notification relating to the ban that the free public circulation of the book would lead to the breakdown of social and communal harmony between the Muslims and the Hindus. Shri Bhasin had moved the Bombay High Court in 2007 to set aside the illegal ban of his book by the Government of Maharashtra. In the first week of January 2010, the Bombay High Court has given its order upholding the ban imposed by the Government of Maharashtra, after hearing the case for nearly 2 1/2 years.

Shri R.V Bhasin was born in Lahore in 1936 in the days of British India. His family moved to Simla (now in Himachal Pradesh) in 1947 after the HINDU HOLOCAUST during the religious Partition of India. After completing his education in Simla he joined the National Defence Academy and qualified himself for a Commission in the Indian Navy. After serving in the Navy, for more than a decade, he came out of it voluntarily in 1966. Thereafter he became an entrepreneur by starting a factory in Maharashtra. He also qualified himself for the Law and became a full fledged lawyer in 1991 at the age of 55. He is a tireless public worker in the field of holding aloft the flame of Sanatana Dharma.

The book in question mindlessly banned by the Government of Maharashtra and ratified by the High Court of Bombay, without any due application of either Law or mind, after a lapse of nearly three years has been authored by Shri Bhasin, fully deploying an analytical lawyer’s mind to bring out the details of the crimes, tragedies and follies of Islam ever since its birth in the 7th Century. Even a cursory perusal of the book will show that Shri Bhasin is a profound scholar who has done extensive research to produce this book titled ‘ISLAM: A Concept of Political World Invasion By Muslims’. Freedoms of speech and expression as guaranteed to the citizens of India have been intelligently used by the author to furnish well-researched facts and analysis about different aspects of Islam in India. Now let me come to the recent Bombay High Court Order choosing to ban this book.

I have carefully gone through the text of the judgment of the Bombay High Court in letter and spirit. This patently pan-Islamic and anti-Hindu judgment is an assault on Freedom of Thought and Speech not only of Shri R.V Bhasin but also of all the citizens of India (excepting perhaps the super-citizens, the Muslims!!!), guaranteed under the Indian Constitution. It blatantly violates all known canons of equity and natural justice. The spirit of the Bombay High Court Order shows scant respect and regard for the Indian Constitution. The letter of the Order shows judicial contempt for the due process of law. Bernard Shaw said: “Get hold of facts first before you distort them.” Applied to a Court of Law, Bernard Shaw never said: “Ignore all facts first before you chose to declare your exalted version and interpretation of the law in question.” This process of violation of written law and summary denial of patent facts relating to this case in question was inaugurated by the Government of Maharashtra in 2007 and culminated at the level of the Bombay High Court on January 6, 2010.

In 2007, the Government of Maharashtra had violated in letter and spirit Section 468 of Indian Criminal Procedure Code (CrPC). This patent violation of CrPC Section 468 was judicially ratified by the Bombay High Court on January 6, 2010. Though Shri R.V Bhasin, a senior Advocate of the Supreme Court of India, was fully protected by CrPC Section 468 in letter and spirit, yet he was blatantly denied justice under the law in force, first by the Government of Maharashtra in April 2007 and later by the Bombay High Court in January 2010. The moot question in this context is where should the ordinary citizenry go if they want justice and fair play? Should they be compelled by the government and the Courts of Law to approach the fascist and other lawless forces to get justice? Excepting, perhaps in India, no duly constituted Court can show such supreme contempt for the letter of the Law in question. In order to prove this legally unassailable point in any decent court of law in the world which has due regard and respect for nothing but the LETTER OF THE LAW (excepting perhaps the Bombay High Court!), all that I have to do is to cite the text of Section 468 of CrPC.

“CrPC Section 468. Bar to taking cognizance after lapse of the period of limitation.
(1) Except as otherwise provided elsewhere in this Code, no court, shall take cognizance of an offence of the category specified in sub-section (2), after the expiry of the period of limitation.

(2) The period of limitation shall be-
(a) Six months, if the offence is punishable with fine only;
(b) One year, if the offence is punishable with imprisonment for a term not exceeding one year;
(c) Three years, if the offence is punishable with imprisonment for a term exceeding one year but not exceeding three years.
(3) For the purposes of this section, the period of limitation, in relation to offences which may be tried together, shall be determined with reference to the offence which is punishable with the more severe punishment or, as the case may be, the most severe punishment.”

No where in the above Section 468 has it been stated that any Court of Law (including the Supreme Court of India) is fully exempt from the Law of Limitation outlined therein. Now let me apply the above Section precisely, mathematically, exactly and legally to the individual case of Shri R.V Bhasin who has been grievously wronged both by the Government of Maharashtra and the Bombay High Court.

Here are the facts of the case.

On 5th April 2007, police raided his residence at Colaba, Mumbai and confiscated more than 900 copies of the book published in English and Hindi. The raid was conducted by the Marine Drive Police Station and lasted for nearly four hours, from 11.00 AM till 3.00 PM, when Shri. R.V Bhasin was away attending some court cases. Immediately thereafter the Government of Maharashtra issued a notification banning the book of Shri Bhasin.

This book was Notified to be banned by the Government of Maharashtra in the year 2007, after almost four/five years of its first publication in the year 2003. As more than three years had elapsed after the year of its first publication, Government of Maharashtra had no authority to take any action against Shri R.V Bhasin under Section 153A and Section 295A of the Indian Penal Code (IPC) read with Section 468 of CrPC. This grave legal and procedural lapse at the level of the Government of Maharashtra was given post-facto legal sanctity by the Bombay High Court in January 2010. That is why Justice V. R Krishna Iyer has rightly commented and lamented: “Law is not what the law books or statute books say; the Law is what the judges say it is.”

Let me point out the obvious bloomers in the wholly one sided judgment of the Bombay High Court.

A. When the Government of Maharashtra banned the book illegally in 2007, they gave this reason in their Government Resolution: “The book outrages the feelings of Muslim section of society, maliciously insulting the religion and religious beliefs of Muslims and is likely to lead to acts of violence and disharmony.” Even at that time, more than 10,000 copies of the book in question had already been sold worldwide ever since its publication in 2003. Several hundreds of copies of the book were available in the internet and were in fact copied and distributed on a large scale in different parts of the world. No acts of violence leading to communal disharmony had been committed or reported in the 4 year period from 2003 to April 2007 due to the publication of this book and its large-scale distribution in India and abroad. The same peaceful situation continued for three more years after the banning of the book in 2007 and its legal ratification in an illegal manner by the Bombay High Court on January 6, 2010. The Government of Maharashtra in 2007 deliberately chose to ignore this terrestrial reality from 2003 to 2007 and the Bombay High Court, no less deliberately, judicially, chose to gloss over the fact that there were no incidents of communal violence whatsoever anywhere for a period of 7 years from 2003 to 6th January 2010—the date on which the patently illegal judgment was delivered by the Bombay High Court!

B. The Government of Maharashtra (not very different from the Government of Chancellor Adolf Hitler in the days of Nazi Germany) in so far as the persecuted Hindus of that State are concerned, grossly violated Section 468 of CrPC in April 2007. It was not just an administrative decision under the law to promote the cause of larger public interest. Rather, the knee-jerk book-banning was a despicable pseudo-secular political act to garner the “minority” Muslim votes on the eve of the Mumbai Corporation elections in 2008 and later the Parliament elections in 2009!!

C. Section 468 has the force and sanction of the Indian Parliament and the Indian Constitution behind it. All our Courts of Law (including the Supreme Court of India) are the creatures of the Indian Constitution and not the creators of it. Keeping this fundamental dimension in view, the Bombay High Court had no legal authority to permit the Government of Maharashtra to violate the provision of Section 468 of Criminal Procedure Code relating to the Law of Limitation. Three years after the illegal ban, a Bench of the Bombay High Court, deliberately ignoring Maharashtra Government’s blatant violation of Section 468 of CrPC, clothed such an illegal action with legal sanctity, with retrospective effect to boot, in no less illegal and unconstitutional a manner resulting in a total denial of equity and natural justice to Shri R.V Bhasin!!!

Viewed from any point of view, the judgement of the Bombay High Court patently lacks fairness, either with reference to the facts of the case or with reference to the written law in force applicable to the case in question.

D. Clear cut Separation of Powers between the Executive, the Legislature and the Judiciary has been done under the Constitution only to protect the Fundamental Rights of Indian citizens. Each Pillar of the State must show due deference and respect to the other two Pillars of the State in the larger public interests of peaceful, tranquil, smooth and orderly sailing of the whole Ship of the Indian State. The Bombay High Court has unconstitutionally transgressed into the assigned domain of the Legislature and its exclusive law-making authority by giving an illegal twist and turn to Section 468 of CrPC by indefinitely extending the Period of Limitation from 3 years under that Section to an indefinite period!!!

E. The State of Maharashtra (which of course includes the Government of Maharashtra!) had initiated action banning Shri R.V Bhasin’s book only to protect the interests of the Muslims! This being the case what was the need for 5 communal Islamic organizations to get themselves impleaded in this on going case of Shri R.V Bhasin under Sections. 95 & 96 of CrPC where they had no locus standi whatsoever. Were these patently communal organizations expected to defend the “minority Muslim Interests” more objectively, more fairly, and more effectively than the Government of Maharashtra? The Government of Maharashtra in this case was represented by no less an Advocate than its Advocate General Shri Ravindra Kadam.

F. Even a Third Class stipendiary Magistrate under training should be able to understand the difference between a case of legal dispute relating to one private individual vis a vis the State and a case of Public Interest Litigation (PIL) involving the larger public interest. In this case the Appeal Petitioner was Shri R.V Bhasin. The Respondent was the State of Maharashtra. In 2007, the State of Maharashtra initiated action against the book in question published by Shri R.V Bhasin in 2003. Against that action, Shri R.V Bhasin filed an Appeal Petition in the Bombay High Court. When this Appeal Petition case was in progress in the Bombay High Court, 5 Islamic communal organizations entered the fray illegally as “Interveners” in the dispute relating to Shri R.V Bhasin (one private individual in no way connected with them, either religiously or commercially!) and yet they were given the specially privileged Islamic “minority” right of way by the “secular” Bombay High Court!

There is no rule of law which allows third parties, either individually or severally, to blatantly interfere in the ongoing judicial cases unless it is a PIL and a Public Notice was first issued inviting the interested parties to come and intervene in the case. According to the normal procedure, only the interests of the litigating parties alone have to be considered by any Court of Law and nothing more than that. Viewed in this light, it is easy to conclude that the 5 communal Islamic organizations have committed a Criminal Contempt of Court under the Contempt law in force. It is a matter of public regret that this very valid point of law which was raised by the affected individual Shri R.V Bhasin, found no favour with the Bench of the Bombay High Court.
Thus Shri R.V Bhasin has been put under the totally unnecessary compulsion and avoidable legal necessity of having to rush to the Supreme Court of India to get his due and real justice.

G. The Bombay High Court by permitting the 5 Islamic communal organizations to enter into the fray illegally as “Interveners” has shown no respect for the Due Process of Law. What is the spiritual sanctity of these 5 Islamic organizations in the Islamic theological world? Were they representing the Muslims of Maharashtra or India as a whole? Were they representing Sunni Muslims or Shia Muslims?

As Justice Cardozo, one of the greatest judges in the history of American Law, stated it in one of his famous judgments: “Due Process of Law is not a mere gesture. Due Process of Law requires that the proceedings shall be fair and equitable. It is fairness with reference to particular conditions or particular results.” The 5 Islamic communal organizations ought to have been treated as fundamentalist religious obstructionists, political opportunists and supremely arrogant interlopers. Their petitions ought to have been rejected summarily without much ado. Has not our beloved Prime Minister said that the Muslims will have the first charge on our national resources? Now this contagious virus of ‘Muslims First’ policy seems to have affected the Bombay High Court as well!!!

H. The very fact that Shri R.V Bhasin is a very decent and senior advocate of the Supreme Court of India is borne out by the fact that he did not play the similar dirty communal politics in this case by appropriately sounding the Vishwa Hindu Parishad and other Hindu cultural organizations to implead themselves as “Interveners” in this case.

I. The 5 Islamic communal organizations through their senior counsel Mr Yusuf Muchchala had contended that the true message and spirit of the Holy Quran had been wrongly commented upon by Shri R.V Bhasin in his banned book in such a manner as to hurt the religious feelings of the Muslims of India. The Government of Maharashtra in the Notification banning the book had also stated that certain portions of Shri R.V Bhasin’s book would definitely hurt the religious feelings of the Muslims in the State.

In order to take an informed decision on the legality of the Maharashtra Government ban on Shri R.V Bhasin’s book, the three-judge Bombay High Court Bench sought the help of senior counsel Yusuf Muchchala, by directing him to simplify and explain in English what the particular verses of the Quran mean, and submit his translation in the Court by June 19, 2009. This is an unusual and extraordinary procedure for which there can be no precedents. This arbitrary and loaded procedure raises the following issues:

1) Mr Yusuf Muchchala is a Muslim Advocate who is defending the 5 Islamic communal organizations. This being an irrefutable fact how can he be expected to render objective and impartial service to the Bombay High Court in the allotted task of translation of some of the verses of Quran without any conflict of interest? If he is an objective advocate who believes in fair play and the Rule of Law, should he not have recused himself on this ground itself and informed the Bombay High Court accordingly?

2) What are the impeccable academic theological credentials of Mr Yusuf Muchchala in the field of Quranic Studies? What were the objective public factors that led to his being entrusted with this task of translation by the Bombay High Court?

3) What was the imperative public need for the Bombay High Court to ignore the nationally accepted standard English translations of the Quran done by Muslims of India which have stood the test of time for three generations? In this context I would refer to the following two translations of the Quran:

a. Translation done by Maulvi Muhammad Ali of Lahore in 1929. This work was reviewed by the leading English newspaper of that time, The Madras Mail of 15 October 1929 in these words: “Maulvi Muhammad Ali’s name is a guarantee that the translation is as accurate as it could be, and a careful persual of the work really justifies the expression of the opinion that few translations into English have reached such a high standard. . . . The book will not only serve to enable Muslims to know their Islam better, but will also dispel many of the fictions fostered in the minds of the non-Muslims regarding the Quran and the religion it preaches.”

b. Translation done by Mr. Abdullah Yusuf Ali (1872-1953). in 1934 and published by Sh. Muhammad Ashraf Publishers of Lahore. He belonged to the Indian Civil Service (ICS). It was undertaken after Yusuf Ali had retired from the Civil Service and settled in the United Kingdom in the 1920s. This translation has become one of the most widely known English translations of the Holy Quran, partly due to its use of prodigious footnotes that supplement the verse-for-verse translation of the original Arabic text. One of the leading English newspapers, The London Times, reviewed this book in the following words in the following words: “Mr. Abdullah Yusuf Ali’s magisterial work of translation of the Quran is in clear modern English, as opposed to previous versions — including those published by Oxford and Penguin — which have adopted archaic Biblical English. The Qur’an is finally open to readers of English, both Muslim and non-Muslim. Far and away the best translation of the Qur’an in English available today.”

Translators like Maulvi Muhammad Ali (1929) and Mr Abdullah Yusuf Ali (1934) had no personal vested interest of any kind in undertaking their sacred work of translations of the Quran. The Bombay High Court ought to have consulted such standard English translations of the Quran without referring the matter to the Senior Counsel Mr Yusuf Muchchala who was representing only the sectional interests of the ‘Interveners’ (in my view encroaching litigants!) in this dispute before the Court. Justice should not only be done but also seen (‘SEEM’ by no means excluded!) to be done in this context. But ALAS! it was not to be!!

J. It is the long established tradition and normal practice in all the Indian High Courts that no other advocate is permitted to address the Court after the Advocate General of that State has concluded his arguments before the Court in question. I understand that after the Advocate General Shri Ravindra Kadam had presented his arguments for two full days in open Court, the Bombay High Court allowed the 5 Islamic communal organizations to enter the legal fray as ‘Interveners’! Why & how were they allowed to be heard and that too when the Advocate General of the State had already COMPLETED his submissions? In this context the following observations of Hon’ble Justice Harlan F. Stone in United States vs Butler, 297 US I, (1936) are very relevant: “While unconstitutional exercise of power by the executive and legislative branches of the Government is subjected to judicial restraint, the only check upon our own exercise of power is our own sense of self-restraint.”

In concluding Part I of this presentation, I would say that the original Notification of the Government of Maharashtra issued in 2007 against Shri R.V Bhasin’s book is full of infirmities. With out examining them in detail, it is easy to declare that the notification itself is highly illegal because it violates the letter and spirit of Section 468 of CrPC relating to the Limitation Period of 3 years.

Shri R.V Bhasin, Senior Advocate of the Supreme Court of India, is a learned scholar and distinguished writer. He is a fearless crusader for legitimate Hindu causes. In my view he was legally and grievously wronged by the Government of Maharashtra in 2007. When he appealed against that illegal and immoral Order in the Bombay High Court, he was unable to get justice even after the tortuous judicial process for nearly 3 years. It is a grim public tragedy that Shri Bhasin has been exalted to the “non-person” status alongside Salman Rushide and Taslima Nasreen, by the Maharashtra Government in 2007 and the Bombay High Court in 2010. As a Supreme Court Lawyer himself, is determined to fight it out in the Court of Law. In this context I cannot help quoting Sir Edward Coke (1552 – 1634), Lord Chief Justice of England in the 17th Century. In his famous ‘The Institutes of the Laws of England’, with great candour he referred to the judicial injustice by the Courts of Law in these words “It is the worst oppression that is done by colour of justice.”

Lord Hewart (1870-1943), Lord Chief Justice of England and Wales stated: “It is not merely of some importance but is of fundamental importance that justice should not only be done but should manifestly and undoubtedly seen to be done. Nothing is to be done which creates even a suspicion that there has been an improper interference with the course of justice.” Even a cursory perusal of this case will show that there has been an improper interference with the course of justice.

I derive my inspiration for making these observations from the beautiful words of Justice V.R Krishna Iyer who said: “I feel sad to use a hard word against the Judges: but I feel bad in my soul if I slumber when Judges BLUNDER … The task of the Judiciary is moral – spiritual.”

(to be continued)

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