Criticism of any religion permissible under right to freedom of speech - Landmark Ruling by Bombay Court

The Times of India

Free to criticize religions but not with hate: Court

by Swati Deshpande, TNN, 7 January 2010, 01:11am IST

MUMBAI: In a significant ruling, a three-judge bench of the Bombay high court on Wednesday held that in India, criticism of any religion -- be it Islam, Hinduism, Christianity or any other -- is permissible under the fundamental right to freedom of speech and that a book cannot be banned on those grounds alone.

However, the criticism must be bona fide or academic, said the court, 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.' The book contained was an "aggravated form of criticism made with a malicious and deliberate intention" to outrage the feelings of Muslims, the court said.

Delivering the landmark verdict on Wednesday, the court has in a rare instance upheld the state's ban on a 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 Justices Ranjana Desai, D Y Chandrachud and R S Mohite, said, "Healthy criticism provokes 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 had been 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". Bhasin later told TOI that he would go to the Supreme Court in appeal. "Freedom of speech cannot be blocked on interpretation," he said.

Bhasin challenged the ban the same year and his counsel J P Cama argued at length that freedom of speech and expression has 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 justifying the state's ban was advocate general Ravi Kadam and later Yusuf Muchala, the counsel for a few intervenors, including Indian Union Muslim League, Maharashtra Muslim Lawyers Forum, Islamic Research Foundation, Jamat-e-Islami-e-Hind and Bombay Aman Committee. One intervenor, I G Khandelwal, from Right to Read Foundation, supported the author.

The bench had reserved the matter for judgment last August after a lengthy hearing. 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 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 contents 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 parts.

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 "malafide 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 is passe and pointless.

The book contains "highly objectionable and disturbing" statements about the author's wishful thinking of an impending war between Muslims and others and how Indian Muslims want to convert all Hindus, attack temples and Hindu women. Statements like these are "likely to incite people to violence and may promote violence, enmity or hatred".