Courts must clamp down on calls for violence

In the face of public outcry, the state police registered an FIR under Section 153-A of the Indian Penal Code (the offence of promoting disharmony, enmity, or feelings of hatred between different groups on the grounds of religion) against one named individual — ironically a recent Muslim convert to Hinduism known for his provocative comments against Islam — and other unnamed persons. For the BJP government still trying to balance itself between supporters who made a mockery of the law and NRC-CAA activists who stepped across the line that divides protest from defiance of the law — or indeed were dragged into the net to be taught a lesson — this episode must be causing considerable discomfiture. The project they had hoped would be one of gentle but sustained osmosis of mind control has been replaced by activities of indiscreet followers, who hurl invectives and issue guttural threats of genocide.

It is yet possible that a genuine and accurate description of Hindutva being derived from Hinduism exists but that is not what I had referred to in my book, Sunrise over Ayodhya. To clarify: Does the Haridwar conclave represent the Hindutva I question or Mahatma Gandhi’s fast unto death against communal violence? If the petitioner who approached a magistrate against me truly has faith in Sanatan Dharma, she should have joined me in questioning those who hurt her faith for a cynical power game.

The timorous action, or inaction if you please, in this instance — indeed in many similar, if not equally grand, communal incidents across the country — is to be contrasted with the urgency shown by the magistrate who directed the police of Bakshi Ka Talab to register an FIR against me for the following words in my recently released book: “Sanatan Dharma and classical Hinduism known to sants and sages was being pushed aside by a robust version of Hindutva by all standards, a political version similar to the jihadist Islam of groups like ISIS and Boko Haram of recent years.”

Clearly, the local police have no choice but to comply with the order. However, one wonders what they will investigate when the Hon’ble magistrate has already pronounced his opinion without indicating that it is but his prime facie impression. It raises interesting questions. Two courts in Delhi, (the ASJ at Patiala House and the High Court of Delhi) having rejected petitions to ban the book with the observation that the petitioners were free to write their own book and the author’s freedom of expression could not be curtailed, would it be appropriate for a court in UP to proceed to prosecute for the same material? Whatever happened to the comity of courts and contempt of the High Court? But a more interesting conundrum arises as well. If I believe that the persona dramatis of the Haridwar conclave require to be prosecuted, why must the same not apply in my case? Understanding the distinction might be useful in these times when legitimate words and acts are twisted and contorted, even painted with the odium of sedition. But the death threats and incentives offered at Haridwar, even to the common ear, would go far beyond opinion and expression of conscience protected by the Constitution. These are not just thoughts that do not qualify as crime having been converted into speech acts. Any person persuaded to act upon them would inevitably be said to have acted in concert with the speakers and instigated by them.

My expression in a book, much of which celebrates the philosophical piety of Santana Dharma, while underscoring, in a few lines, the similarity between organisations that distort and misuse religion — be it Islam, Christianity or Hinduism — would at worst be an opinion that others can disagree with. But that would not inject into the opinion the mens rea (mental element) that is an essential ingredient of crime. Furthermore, an analysis that describes Hindutva as being distinct from Hinduism, even by Justice J S Verma’s definition of Hinduism as “a way of life”, is not an ingredient of 153 A. The Constitution does not just protect right opinion as opposed to the wrong opinion. Besides, just as there is a reasonable limit to what can be said as part of free speech, there is also a limit to what one might be offended by. “Touch me not” prickliness, making all discussion out of bounds, is not the law. Many liberal scholars of constitutional law, such as Ronald Dworkin, have even argued for a right to offend if we are to take freedom of speech seriously as a democratic right. If we take rights seriously, our courts will have to draw the red line carefully so as not to turn a blind eye to defiance of law and yet not stifle debate and dissent.

This column first appeared in the print edition on December 28, 2021 under the title ‘The thin red line’. The writer is a senior Congress leader and former external affairs minister