Jun 10, 2023
Jun 10, 2023
by V. Sundaram
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.
Nowhere 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 perusal 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.”
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!
I have very carefully read and analyzed the never steady, in fact needlessly undulating and meandering, I would even say directionless though not purposeless (if not totally aimless!), tortuously laborious (which does not exclude belaboured!!) judgment of the Bombay High Court in the case filed by Shri R.V Bhasin against the Government of Maharashtra. In this context, I would be failing in my public duty as a proud political Hindu if I do not quote the following brilliant and rapier-like words from the public address delivered to Judges and Magistrates by Mr Dana Porter, Hon’ble Chief Justice of the Province of Ontario, titled “What Once the Fleeting Hour Has Brought”:
“A German General once classified his officers thus: ‘I divide my officers into four classes: the clever, the stupid, the industrious and the lazy. Every officer possesses at least two of these qualities. Those who are clever and industrious are fitted for high staff appointments; use can be made of those who are stupid and lazy. But the man who is clever and lazy is fitted for the highest command; he has the temperament and the requisite nerve to deal with all situations. Whoever is stupid and industrious, however, is a danger and must be removed immediately’. If “lazy” implies a “propensity to reflect”, there may be sense in these classifications. In practice, your opportunity for laziness of any kind may be very little. A Judge has a greater opportunity. Whether he uses it to any advantage is always a matter of opinion, but a JUDGE WHO IS BOTH STUPID AND INDUSTRIOUS IS WITHOUT QUESTION AN UNQUALIFIED DISASTER”.
In the Indian context, the greatest national tragedy is that many of the Judges are not only stupid and industrious but also singularly unscrupulous. Many of the people who have made it to the top have done so on the basis of this ‘pragmatic’ working philosophy: “You have to be singularly unscrupulous in order to be magnificently successful all the way without any road blocks of any kind.” Otherwise, we would not have had a judge of such outstanding qualities of head and heart and with an enviable record of such unimpeachable integrity as Hon’ble Justice Dinakaran who is waiting to get elevated as a Judge of the Supreme Court of India!!!
Having made these general observations on the Indian Judiciary as a whole, let me give some excerpts from the learned judgment of the Bombay High Court relating to Shri R.V Bhasin vs the Government of Maharashtra:
81. We have no doubt that the author must be allowed to criticize Islam. Pure and simple criticism without any intention to hurt religious feelings of a particular community must be allowed. But, here the criticism is not academic. The author has gone on to pass insulting comments on Muslims with particular reference to Indian Muslims. That is most objectionable. We shall now turn to those comments.
83. “But, we feel that the author cannot comment on all Muslims, and the Indian Muslims in particular and paint them as villains. The author has said that the Muslims in fact considered even conspiring against the soil of India, forgetting the role played by several Muslim leaders in the freedom struggle of India as followers of Mahatma Gandhi. It cannot be denied that misguided Muslim youth have indulged in acts of terrorism. But misguided youth are there in other religions and there are instances where they have indulged in acts of violence. Because of such instances the entire Muslim community cannot be branded as terrorists. The author could not have painted the entire Muslim community with the same brush. The author has insulted a large section of Indian Muslims who are part of the mainstream of the nation's life and who are contributing to India's development in all fields”.
As a former Civil Servant belonging to the Indian Administrative Service (IAS), I would like to raise certain questions. Why are the religious feelings and sentiments of only the “minority” Muslims treated as ‘sacred’ and inviolable by our Courts of Law? ARE NOT THE RELIGIOUS FEELINGS AND SENTIMENTS OF THE MAJORITY HINDUS OF INDIA AS SACRED AND INVIOLABLE AS THOSE OF THE MUSLIMS OF INDIA? Why should the Courts of Law bend all the Laws and the Law of the Constitution to smoothly and adroitly accommodate only the ever-shifting, volatile religious feelings and sentiments of only the Muslims of India? How can any religion be criticized without hurting the feelings of the people belonging to that religion? Any stupid endeavour to do so has to viewed only as an aimless exercise in chaste and pure prostitution! These questions will be raised by every self-respecting and enlightened Hindu who reads the heavily one-sided and loaded judgment of the Bombay High Court. The following quotation from Swami Vivekananda may be totally irrelevant to our soulless secular anti-Hindu Courts of Law. But it constitutes the life breath of every true, earnest practicing Hindu in India:” True religious feelings, emotions and sentiments are indeed the gastric juices of the soul”. All our Courts of Law seem to be aware of only the gastric juices of the stomach!
I am presenting below a few more excerpts from the judgment of Bombay High Court for the purpose of my legal analysis.
The author further writes: “The worlds political and religious leaders must immediately look into the real cause of terrorism that clearly finds its roots in the Islamic philosophy contained in the holy Quran. It is this question which is posed to the whole world that must unite to finally create a war out of it that must include if necessary, facing a war, that may be thrust by the believers upon non-believers.”
86. “With such exhortations can we say that the book will not promote enmity between two religions or that it is not intended to outrage the religious feelings of Muslims or that it is not likely to create disharmony or feelings of enmity, hatred or ill-will between Hindus and Muslims?”
Let me offer my comments on the above excerpts. The enmity between Muslims and Hindus has existed for centuries since the first Muslim invasion of Bharat. This enmity led to the Partition of India on religious grounds on August 15, 1947 and caused the Hindu Genocide. This large scale slaughter of Hindu men, women and children large-scale rape of Hindu women, kidnap of girls for slavery has led to and resulted in Shri Bhasin writing this well-researched book. BHASIN’S BOOK IS THE RESULT OF ESTABLISHED MUSLIM HATRED FOR THE HINDUS AND NOR THE CAUSE OF IT.
Let me deal with a few more excerpts from the Bombay High Court Judgment
88.” It is true that whether the objectionable matter is meant for limited circulation, whether it is to cater to an ignorant, illiterate inflammable mob or educated people would be a relevant consideration and the effect of the words must be judged from the standards of reasonable strong minded firm and courageous men and not those who scent danger in every hostile point of view. It is therefore, necessary to consider who will read the book.”
89. “The translation of the book is available. The possibility of its falling in the hands of an inflammable mob cannot be ruled out. The way this sensitive topic is handled by the author, it is likely to arouse the emotions or sensibilities of even strong minded people. We have held that criticism of Islam is permissible like criticism of any other religion and the book cannot be banned on that ground. But we have also held that the criticism of Islam is not academic. The author has gone on to pass insulting comments on Islam, Muslim community with particular reference to Indian Muslims. It is an aggravated form of criticism made with a malicious and deliberate intention to outrage the religious feelings of Muslims. The contents are so interwoven that it is not possible to excise certain portions and permit circulation of the book. We may also mention that at one point of time, when this was discussed, the author declined to excise the book.”
Taking note of the above two paragraphs from the judgment of the Bombay High Court, I would like to say that the learned judges have failed to define or clarify the following issues:
1. What is an “insulting language”?
2. What is a “hurting language”?
3. Have the Government of Maharashtra in their Notification given quotations from R.V Bhasin’s book to fortify their conclusions that his book has to be banned in the larger interests of communal harmony?
4. What is an “aggravated form of criticism made with a malicious and deliberate intention to outrage the religious feelings of Muslims”?
There is a vague sentence to this effect above in the Judgment: “But we have also held that the criticism of Islam is not academic.” What is the MEANING of this sentence? Are the Judges inferring that Shri Bhasin is not academic? Even a cursory perusal of his book will show that he is a painstaking and thorough going scholar. All his findings are based on the verses of the Quran. When Muslims quote the verses from the Quran it is viewed as academic, spiritual and religious by the Bombay High Court. But when Hindus like Bhasin quote from the same Quran, they are viewed with suspicion and disbelief by the Bombay High Court. Our Courts of Law seem to be functioning like the Sharia Courts in Saudi Arabia where a non-Muslim giving evidence against a Muslim would be viewed with suspicion and disbelief.
Neither the Government of Maharashtra (for their own minority vote-bank and other political reasons) nor the 3 learned judges of the Bombay High Court have applied their mind to find out the real purport and spirit of Shri R.V Bhasin’s book on Islam. The whole world knows that the Holy Quran talks about a “Brotherhood of Islam”. The Government of Maharashtra and the Bombay High Court seem to be living in an imaginary, placid and warped world of anti-Hindu secularism, imagining that this Quranic Brotherhood of Islam embraces all mankind, not only the Muslims, but all the non-Muslims of the world. The only statesman in India who truly understood this concept was Dr B.R Ambedkar, one of the founders and makers of the Indian Constitution. I would like to invite the attention of Bombay High Court to this observation of Dr Ambedkar: “The brotherhood of Islam is not the universal brotherhood of man. It is the brotherhood of Muslims for Muslims only.”
This cardinal fact has been eloquently and graphically brought out by Shri R.V Bhasin fully backed by authentic and irrefutable documentary evidence. This approach of Shri R.V Bhasin was first polit
More by : V. Sundaram