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March 25, 1999


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E-Mail this column to a friend Dilip D'Souza

Some Sections Are Punished

Deep in the Indian Penal Code, you will find Section 153A. These are the words you will read there: "Whoever, by words either spoken or written, promotes or attempts to promote on grounds of religion disharmony, enmity, hatred and ill-will between different religions... shall be punished with imprisonment up to three years or fine or both."

Going on from there in the IPC, you will find Section 153B. There, you will read these words: "Whoever, by words either spoken or written, makes any imputation that any class of people cannot, by reason of their being members of any religious group, bear true faith and allegiance to the Constitution of India; or asserts or publishes that any class of people shall by reason of their being members of any religious group be denied or deprived of their rights as citizens of India... shall be punished with imprisonment up to three years or fine or both."

Got that? In brief, 153A says statements that promote enmity between religions are unlawful; 153B says the same about pronouncements that those who profess a given religion are traitors.

In the light of those two sections of the IPC, consider three statements:

* "Which is this majority community? The Hindu traitors who partitioned the country and haven't allowed us to breathe ever since."

* "Nepal need not cross the borders and attack India. 850 million Hindus in India will stage an armed insurrection. They form one of Nepal's seven atomic bombs."

*The precise statement has not, to my knowledge, been in the press.

But on March 14, The Times of India reported its gist: The man concerned told an election meeting that he and his party "did not mind if India was fragmented into a hundred parts." On March 22, the Times in a follow up reported that the man had said, "If the fundamentalist forces interfere in the Muslim personal laws, then it may lead to further disintegration of the country."

Do you think any of these, or all three, violate one or both of 153A and 153B? Yes?

Well, Abu Asim Azmi, head of the Samajwadi Party's Mumbai unit, is the man who made the third statement, words to the effect the Times reported about the disintegration of India. For several days, he has been the focus of a massive uproar by the patriots of the Shiv Sena, undoubtedly deeply worried about violations of the law. They have been demanding that the Maharashtra government arrest and prosecute Azmi under both, 153A and 153B.

The police did register a case under 153A against Azmi on March 14. He was actually arrested on March 19, then released on bail of Rs 950.

And what about the first two statements? Outrageous, don't you think? I am willing to bet a lot of you would agree that whoever said them violated Sections 153A and/or B and must be immediately punished. Right? Except that they are utterly fictional. I made them up just now, for reasons that will be clear in a moment. Till then, what do you think: If authentic, would they have warranted action under Sections 153A and/or B?

Hold your answer just a bit longer while I let you in on a secret. I made up those two quotes, yes. But I based them on lines that were actually written and published in a newspaper seven years ago. Not fiction at all. All I did to produce my made up quotes was to change a few words here and there. Here are the originals, with the dates on which they appeared:

* "Which is this minority community? The Muslim traitors who partitioned the country and haven't allowed us to breathe ever since." (December 5 1992)

* "Pakistan need not cross the borders and attack India. 250 million Muslims in India will stage an armed insurrection. They form one of Pakistan's seven atomic bombs." (December 9 1992)

Okay, now what is your answer? Would my two made up quotes have violated Sections 153A and B? I made them up because I know they would outrage many of you. So I want to ask you who were outraged: Do the two real quotes, the originals, violate Sections153A and 153B?

Whatever you do say, here is what the late H M Seervai, one of the country's most respected constitutional and legal scholars, wrote in 1995 about the real second quote above ("Pakistan need not cross..."): "A clearer violation of Sections 153A and 153B is difficult to imagine."

A clearer statement of the truth than that is hard for me to imagine.

And who wrote these things in the newspaper seven years ago? The Shiv Sena's Bal Thackeray. They were in editorials in his party paper, Saamna. A clearer violation of those sections may have been difficult for Seervai to imagine, but I suppose some others thought somewhat differently. In these seven years, no action of any kind has been taken against Thackeray. Not one case was registered against him for these particular writings and as for being arrested, he has never even come close to it.

Do you think you should be wondering here why Azmi was arrested while Thackeray was not?

Let's get one thing straight. This is not a defence of Azmi or his utterances. If whatever he did say is a violation of the IPC, whether Section 153 or any other, then he must be prosecuted firmly and swiftly in accordance with those Sections. So it is that he was arrested. But why was the same standard not applied to Thackeray? His words were not even spoken at an election meeting and thus subject to doubt, hazy memories and the ongoing search for a tape of the event. No, he put them down in black and white for all to see. I have a copy.

So what do you think? What are the implications of taking penal action against Azmi, but not against Thackeray, though both violated the very same section of the law?

In Conundrums, Contortions and Convolutions, I explained that two citizens of Mumbai filed a petition asking the Bombay high court to direct the government of Maharashtra to prosecute Thackeray for his writings during the 1992-'93 riots in Mumbai. The petition cited the two editorials referred to above and seven more, all in Saamna. The editorials, the petition said, were clear violations of Sections 153A and B. Thus they must attract the attention of the law.

In September 1994, the petition was heard and dismissed by Justices M L Dudhat and G R Majithia. They offered various reasons for their decision. For one, "much time" had elapsed and it was unwise to "rake up" old issues. For another, none of the editorials were worthy of action, they felt, "when read in full." What the "Pakistan need not cross..." editorial contained that, when "read in full", would render that excerpt innocent of the law, the Justices did not explain. Of course, the Judges did observe that the 250 million figure "appears to be a typographical mistake."

Yes, their Honourable and Respectable Eminences decided it was a mere typo. They felt sure it was one even though Thackeray used the same figure in at least one of the other cited editorials.

H M Seervai was reacting to the dismissal of this petition when he wrote what I quoted above. Seervai also wrote: "...[T]he interpretation given to [the 250 million figure] is absurd and perverse. The statement that '250 million Muslims' was a typographical error is based on no evidence. ...In my opinion, the [government's submissions in the hearing] clearly established that the government knew that the nine passages complained of [in the petition] violated the provisions of Section 153A, but was determined not to prosecute Shri Thackeray."

Once again: Do you think you should be wondering why Azmi was arrested while Thackeray was not?

A postscript I cannot resist: The notion of typos about the Muslim population, as proferred by Justices Dudhat and Majithia, must be an infectious one. Appended to my recent Swarovski,Whatever That Is column, I had a tailpiece criticising Pritish Nandy for his contention that India was home to 300 million Muslims. One angry response scolded me thus: "I agree Pritish made a typographic error in putting Muslim count. Why you have to quote some government records to prove an obvious error?"

Dilip D'Souza

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