Religions can be criticized, but sans malice – Mumbai High Court
.In a significant ruling, the Bombay High Court has
held that in India, criticism of any religion - be it
Islam, Hinduism, Christianity or any other - is permissible under the fundamental right of freedom of speech, and a book cannot be banned for that reason alone. But the criticism must be bonafide or academic, the court said as it upheld a ban issued in 2007 by the Maharashtra government on a book titled ‘Islam - A Concept of Political World Invasion by Muslims.’
Delivering the landmark verdict on Wednesday, 6th January, the court upheld the state’s ban on the book but at the same time brought joy to civil rights activists when it held that, “In our country everything is open to criticism and religion is no exception. Freedom of expression covers criticism of religion and no person can be sensitive about it.”
The bench, comprising Justice Ranjana Desai, D.Y. Chandrachud and R.S.Mohite, said, “Healthy criticism provides thought, encourages debate and helps us evolve. But criticism cannot be malicious and must not lead to creating ill-will between different communities. . . (it) must lead to sensible dialogue.” The courts must strike a balance between the guaranteed freedom and permissible restrictions,” a difficult task”, as the 150 page HC verdict penned by Justice Desai, observed.
The book, authored by R.V.Bhasin, a Mumbai based advocate, in 2003 was in circulation for four years before the state felt the need to ban it for “several derogatory and false statements about Muslim religion, the community, Mohammed Paigambar and Muslim priests.”
The author had challenged the ban on it. His counsel J.P. Cama argued at length that freedom of speech and expression had to be protected and unless a book gives rise immediately to a present and sudden danger of disrupting communal or societal peace, its ban cannot be justified.
He said the author placed certain lesser-known aspects about Islam before the people and said, “Assuming he is wrong, he has a right to be wrong.”
But advocate general Ravi Kadam and later Yusuf Muchala, counsel for a few intervenors, including the maharashtra Muslim Lawyers Forum, Islamic Research Foundation, Jamat-e-Islami-e-Hind and Bombay Aman Committee argued justifying the ban . One intervenor, I.G.Khandelwal, from the Right to Read Foundation, supported the author.
The court said, “The author can say what he feels is right and if it is wrong, he cannot be punished for it. But what needs to be seen is whether it was done bona fide with a real desire to explore the tenets of Islam and give his exposition.” In this case, the court held that the criticism of Islam and “insulting comments with particular reference to Indian Muslims were not academic.”
“It is an aggravated form of criticism made with a malicious and deliberate intention to outrage the religious feelings of Muslims. The comments are so interwoven that it is not possible to excise certain portions and permit circulation of the book,” the court said. The author had declined an earlier suggestion to delete certain texts.
A person may have a right to say a particular religion is “not secular,” said the HC but it cautioned against rabid contents “reeking of hatred for a particular community” and “mala fide exercise to stir communal passions.”
The HC also found “totally unacceptable” the author’s argument that banning the book in the age of the internet was passed and pointless.
The book contains “high objectionable and disturbing” statements about the author’s wishful thinking of an impending war between Muslims and others, and how Indian Muslims were to convert all Hindus, attack temples and Hindu women. Statements like these were “likely to incite people to violence and may promote violence, enmity or hatred.”
