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Citizens for Justice and Peace

SC should recall its order

01, Jan 1995

By H.M. Seervai, Constitutional expert

‘Communalism Combat’ requested Mr. H.M. Seervai, distinguished jurist, author of the leading commentary on the Constitution of India and the former advocate general of Maharashtra to give his legal opinion on the judgement of the Bombay High Court J.B. D’Souza v. State of Maharashtra and the order of the Supreme Court in that case. We reproduce below Mr. Seervai’s opinion, abridged slightly for reasons of space.

After the demolition of the Babri Masjid on December 6, 1992, there was unprecedented violence in Bombay against Muslims in early January, 1993. It was rightly believed by responsible citizens who had gone around the city to ascertain what had happened and who were trying to restore communal harmony, that the police not only did not take action against the rioters but in some cases assisted them….

….During December 1992/January 1993, Saamna published a number of editorials which prima facie were a clear violation of Sections 153A and 153B of the I.P.C.

The law in England as to the duty of government to enforce the law has been dealt with in Reg. v. Commissioner of Police of the Metropolis Ex p. Blackburn (1968) 2 Q.B. 118. Lord Denning, M.R. observed: “…There are some policy decisions with which, I think, the courts in a case can, if necessary, interfere. Suppose a chief constable was to issue a directive to his men that no person should be prosecuted for stealing less than 100 pounds, I should have thought that the court would countermand it. He would be failing in his duty to enforce the law. After the decision of the House of Lords in Kursall Casino Ltd. v. Crickitt (1966) 1 W.L.R. 960, the commissioner of police announced that “it is the intention of the metropolitan police to enforce the law as it has been intended’…” (Salmon, L.J. and Edward Davies L.J. agreed with Lord Denning, as to the contention that a mandamus should be refused because Mr. Blackburn had an equally effective and convenient remedy,) Salmon, L.J. said: “It seems to me fantastically unrealistic for the police to suggest, as they have done, that their policy decision was unimportant because Mr. Blackburn was free to start private prosecution of his own and fight the gambling empires, possibly up to the House of Lords, single-handed”: ibid. p.145.

Edmund Davies L.J. agreed…observing that “only the most sardonic could regard the launching of a private prosecution….as being equally convenient, beneficial and appropriate and the procedure in fact adopted by this appellant”.

I have cited this decision of a most distinguished master of the Rolls, Lord Denning and his distinguished brother judges to show that no general policy can override the law, and further that the rule of law must be upheld and enforced by the appropriate authority…

In the context of what I have said above, a question arises as to how power conferred on public authorities in connection with the administration of justice is to be exercised. Justice Jaganmohan Reddy for himself and Palekar J. gave the answer in M.N.S. Nair v. P.V. Balkrishnan AIR 1972 SC  496.…. (Referring to section 494 of the Criminal Procedure Code which permits the prosecution to withdraw from the prosecution), Justice Jaganmohan Reddy observed….

“… It is the duty of the court also to see in furtherance of justice that the permission is not sought on grounds extraneous to the interest of justice or that offences which are offences against the state go unpunished merely because the government as a matter of general policy or expediency unconnected with its duty to prosecute offenders under the law, directs the public prosecutor to withdraw from the prosecution and the public prosecutor merely does so at his behest”: ibid. p.499 (emphasis supplied)….

Jaganmohan Reddy J. rightly observed that the delay caused by the accused by repeated revisional applications could not ensure for the benefit of the accused. Since the judgement of the division bench in Shri D’Souza’s petition referred to the “delay” which had taken place in hearing the petition, it may be observed that the petitioner, i.e. Shri D’Souza and his co-petitioner were not responsible for the delay. The Criminal Writ Petition was filed speedily in April 1993. The petition was adjourned for the government to communicate to the court whether it had granted permission to prosecute Respondents 3 and 4 in respect of certain articles for which the police had filed complaints in the magistrate’s court, and asked for government’s sanction. On June 8, 1993 government stated that sanction had been given. On June 14, 1993 the writ petition was admitted with liberty granted to apply to the chief justice for an early date. (Thereafter the delay in the hearing took place because of the court not having given time or the respondents asking for an adjournment).

(Mr. Seervai refers to the fact that an affidavit was filed on behalf of the state to oppose the admission of the petition in April 1993. This affidavit was filed by an under-secretary in the home department, Shri Kumavat, and refers to the fact that the affidavit mentions that the question as to whether prosecutions should be sanctioned in respect of some complaints filed by the police were referred to the law department. This shows that whether or not sanction should be granted raises a question of law and being a question of law it is the law department which gives the necessary advice. Ultimately, sanction was given in those cases because the opinion of the law department was that as a matter of law the articles violated the provisions of section 153A)….

It would be convenient at this place to consider what test is to be applied by a court in considering whether the articles published in a daily newspaper violate the provisions of sections 153A and 154B. Saamna, a daily newspaper had a wide circulation. The petitioners did not complain of one article but of a number of articles on the same theme.

The question whether those articles promoted enmity between Hindus and Muslims on the ground of religion, race and residence etc. has to be determined on how the general readers of those newspaper would understand those articles and not how a court after elaborate analysis and argument by counsel on either side considers to be the effect of those articles.

It should be borne in mind that the articles complained of had been spread over two months and dealt with acute controversies such as the demolition by Hindus of the Babri Masjid. The ordinary reader of Saamna, or of any other daily newspaper is not given to an analysis of articles, parts of which are complained of by a petitioner.

No doubt as a general rule, any article complained of must be read as a whole. But there are situations in which certain passages and their effect of producing enmity between communities are so strong that no context would prevent those passages from inflaming communal enmity between Hindus and Muslims as will appear later. That was the test which the court had to apply in Shri D’souza’s petition, and which the court failed to apply….

Before dealing with the passages complained of and the manner in which the division bench dealt with those passages, the stand taken by the government for not taking action to prosecute Shri Bal Thackeray and Shri Raut for publishing the paragraphs set out in Shri D’souza’s petition requires consideration.

The Government was in a dilemma. No officer of the government could say that what was stated in Shri Kumavat’s affidavit was false, for it was stated by him to be true to the best of his own knowledge. However, the government was determined not to grant sanction to prosecute Shri Bal Thackeray and Shri Raut and the procedure described by Shri Kumavat would have required the home department to process the case and then send the case for the legal opinion of the law and judiciary department.

A department which gave as its opinion that the articles in Saamna which attacked Muslim police officers violated the provisions of sec. 153A would, a fortiori, give it as its own opinion that the nine articles complained of in Shri D’Souza’s petition which attacked Muslims and Muslim community generally violated the provisions of section 153A and sanction to prosecute should be given.

Government devised the expedient of getting Shri Ulhas V. Manjrekar, deputy secretary to the government of Maharashtra (general administration department) to file an affidavit replying to the petition on merits after it had been admitted, although the question of granting sanction to prosecute persons under section 153A were dealt with by the home department.

Shri Manjrekar stated that he was filing the affidavit “on the basis of concerned files of my department which I have carefully pursued”. Shri Manjrekar appears to have realised that the records of home department on which Shri Kumavat had relied on behalf of government in his affidavit of April 29, 1993 were directly relevant in replying to the petition on merits after the petition has been admitted.

Therefore, he began paragraph two of his affidavit thus: “At the outset I reiterate and Confirm what Shri D.T. Kumavat, Under secretary to the government of Maharashtra, home department, Mantralaya, Bombay has stated in his affidavit dated April 29, 1993″. By reiterating and confirming Shri Kumavat’s affidavit at the outset, he incorporated that affidavit in his own affidavit.

In paragraph two of his affidavit, after the first sentence, Shri Kumavat’s affidavit must be set out. When this is done, Shri Manjrekar, without realising it, has shown that the government has acted mala fide when instead of referring the question of sanctioning the prosecution of Shri Thackeray and Shri Raut to the law and judiciary department for its legal opinion, the government decided not to prosecute them for the reasons set out by Shri Manjrekar in his affidavit.

The government was the first respondent to Shri D’Souza’s petition, and it’s sidetracking the law and judiciary department whose legal opinion was required, before sanction to prosecute under section 153A (and 153B) was given. This gives rise to the inference that if the government did not seek legal opinion, it was because that opinion would have clearly indicated that the passages complained of in Shri D’Souza’s petition violated the provisions of sections 153A and 153B and sanction to prosecute them should be granted.

A part from what I have said in the above paragraph, there is an inherent contradiction in Shri Manjrekar’s affidavit, which also shows that the government knew that the passages complained of in Shri D’Souza’s petition violated section 153A. Shri Manjrekar states in his affidavit in reply, that “I reiterate that the government of Maharashtra carefully scrutinised the material published by the Marathi daily Saamna in its issue of 2nd, 5th, 8th, 9th and 15th December 1992 and 1st, 5th, 8th, and 9th January 1993…Prosecution of the editor and printer of the daily has already been sanctioned in 4 cases by four separate orders dated 9th June 1993. The government has taken a decision that the alleged objectionable material may be used as evidence at the time when the four cases in which the prosecution has been sanctioned come up for trial and hearing” (emphasis supplied). The prosecution in the four cases was sanctioned as violating section 153A of the IPC, namely for promoting enmity between Hindus and Muslims. If the 9 passages complained of in Shri D’Souza’s petition are to be used as evidence in support of articles which violated section 153A, it must follow that the government realised that these passages violated section 153A and such violation would be further evidence in support of the prosecution in the four cases, namely, that the writings there complained of violate sec. 153A.

If the 9 passages complained of did not violate the provision of section 153A, they could not be used to support the prosecution – those passages would be irrelevant. This is an admission on the part of the government that these 9 passages violated section 153A and instead of prosecuting Shri Bal Thackeray and Shri Raut in respect of these passages, the government arbitrarily declined to do so.

Shri Manjrekar stated in his affidavit that since “the government has referred the matter to the Press Council of India, it would be advisable to await the decision of the press council” is an attempt to show that the government was not inactive.

However, first, the Press Council is not the authority to advise the government whether or not to grant sanction to prosecute under the sections 153A or 153B. The proper authority, as Shri Kumavat pointed out in his affidavit, was the law and judiciary department. This is clear from the government’s own action in respect of granting its sanction to prosecute Shri Thackeray, Raut and Desai without referring the matter to the Press Council, but after obtaining the legal opinion of the law and judiciary department.

In my opinion, the affidavit of Shri Manjrekar clearly established that the government knew that the nine passages complained of violated the provisions of section 153A but was determined not to prosecute Shri Thackeray and Shri Raut. Since the power to grant sanction is conferred on government, it must be exercised in good faith and in furtherance of the object of the law, namely sections 153A and 153B.

What I have said about Shri Manjrekar’s affidavit shows that government acted mala fide and refused to grant sanction although it knew that the nine passages violated section 153A. The division bench has not realised the effect of Shri Kumavat’s and Shri Manjrekar’s affidavit. On those affidavits it is clear that government acted mala fide in respect of granting sanction to prosecute in respect of the nine passages complained of after impliedly admitting that they violated section 153A, and could be used by the prosecutor in the four prosecutions against Shri Thackeray, Raut and Desai

In my opinion, on the affidavits of Shri Kumavat and Shri Manjrekar, the division bench should have issued a writ of mandamus directing government to grant its sanction to prosecute Shri Bal Thackeray (respondent 3) and Shri Raut (respondent 4) for violating sections 153A and 153B, IPC.

Reverting to the affidavit of Shri Raut in April 1993 purporting to be on behalf of himself and Shri Bal Thackeray, it was stated, “I am filing the affidavit on behalf of both of us “for the limited purpose of opposing the admission” (emphasis supplied). After the petition was admitted, liberty was given to the respondents to file their affidavits in reply to the petition. Neither Shri Thackeray nor Shri Raut has filed any affidavit in reply.

The effect of this failure to file an affidavit in reply has not been appreciated by the division bench. By rules of pleading the omission to file affidavits in reply means that the averments in the petition remain un-traversed and must be accepted as correct by Shri Thackeray and Shri Raut.

In Shri Raut’s affidavit of April1993 (para 7) he says:” Without prejudice to the above, I say that none of the editorials, exhibits A to I, attract the prosecution of respondents 3 and 4 as they have exercised their freedom of expression and commented upon current affairs objectively.” This defence was open to them at the hearing of the petition, but I have already shown that the freedom of expression does not justify publishing articles violating the rights of every person to practice, profess and propagate his religion and insults to the religious feelings of communities. Such offences have not been tolerated by the Supreme Court.

It should be noticed that Shri Bal Thackeray and Shri Raut have not stated on oath that the nine passages complained of do not violate the provisions of sections 153A and 153B because they are torn from their context. It is not for anyone to inquire why they have not said so, and it must be assumed that they had good reasons for doing so.

In fact paragraph 7 of Shri Raut’s affidavit supports this assumption, for Shri Raut has justified the nine paragraphs complained of by stating that they do not attract the prosecution of respondents 3 and 4 and the respondents have exercised their freedom of speech and expression and commented upon current affairs objectively. It is the case of respondents 3 and 4 that the freedom of speech and expression confer on them the right to write the passages complained of even if they violate sections 153A and 153B.

I will deal briefly with the judgement of the division bench in view of what I have said earlier. As the petitioner prayed for a mandamus directing the state government to grant its sanction to prosecute Shri Bal Thackeray and Shri Raut under the provisions of sections 153A and 153B by publishing the said passages complained of, the questions for the court’s consideration was whether the government, knowing and believing that the nine passages complained of did violate the provisions, mala fide refused to sanction to prosecute respondents 3 and 4 for articles which violated the two sections of the IPC.

If so, the division bench was under an obligation to issue a writ of mandamus directing government to give its sanction. The sidetracking of the legal department, the referring of the matter to the Press Council of India which was not the body to give legal opinion, the implicit admission that these passages violated provisions of section 153A and that they could be used by the prosecutor in the four prosecutions already sanctioned show beyond any doubt that these passages violated the provisions of both sections 153A and 153B and the government mala fide declined to prosecute respondents 3 and 4.

It is not necessary to deal at length with the elaborate special pleading by which the division bench held that the passages complained of did not violate the provisions of the two sections. I will only deal with one gross instance of the untenable interpretation put on the editorial in Saamna dated December 9, 1992 (page 38 of the judgement, see page 6)

At page 37 of the judgement, the court observed: “…In this article, it is true that reference is made to 25 crores of Muslims in India and relying on this, Shri Setalvad argued that Muslims as a whole are criticised. It is an admitted position that in fact in India at that time there were 11crores of Muslims and, therefore, the figure given in the editorial appears to be a typographical mistake and hence from the reference to 25 crores Muslims one cannot draw an inference that whole dig in the editorial is against Muslims as a whole. If one reads the editorial published on December 9, 1992 as a whole, though some caustic language is used, the dominant impression that the reader is likely to carry is definitely not ill-will, spite or hatred towards Muslims in general but it may carry ill-will and hatred against unlawful behaviour of anti-national Muslims including leaders like Imam Bukhari and Shahabuddin.”

In my opinion, the interpretation given to this exhibit is absurd and perverse. The statement that 25 crores Muslims was a typographical error is based on no evidence. It does not seem to have occurred to the judges that the respondents may exaggerate the number of Muslims in India in order to emphasize the dangers which Hindus and Muslims would face.

Further, the passage divides the population of India between Muslims and Hindus and also states that Pakistan was said to have seven bombs. The seventh bomb was planted in India because Pakistan need not lead an invasion of India: 25 crores of Muslims loyal to Pakistan would stage an insurrection to destroy India. A clearer violation of sections 153A and 153B is difficult to imagine.

In the last two paragraphs which are not conspicuous for their clarity in substance, the court said that if sanction was given, it would reopen wounds between Hindus and Muslims. Public interest required that sanction to prosecute should not be given. This is contrary to the evidence on record.

The government is prosecuting Shri Thackeray for some articles. The government is normally a better judge of the public interest. The government of India has ordered the prosecution of a number of persons, including a Member of Parliament at the time when riots broke out principally directed against the Sikh community. Such a prosecution would open up old wounds but justice demanded that the guilty should be brought to book.

In my opinion the summary dismissal of the petition for special leave against the judgement of the Bombay High Court by Justices Punchi and Jaychandra Reddy can only be described as amazing and subversive of the rule of law.

A report of the proceedings appeared in the Indian Express by Teesta Setalvad dated January 14, 1995. The two Supreme Court judges had observed that they agreed with the high court’s conclusion that it was not in the public interest that the issue should be raked up. But the two Supreme Court judges overlooked the fact that in the whole elaborate judgement (except the last two paragraphs) the court held that respondents were not guilty. The necessary consequence of the summary dismissal is that the Supreme Court confirmed the high court’s conclusion that the respondents 3 and 4 were not guilty.

Justice means justice to both sides in a petition. Not to decide the guilt or innocence of respondents 3 and 4 is a grave abdication of judicial duty to uphold the Constitution and the laws.

For the second reason, namely, that the high court “had its fingers on the pulse of the situation” and public interest would be better served by leaving the situation where it was, there is not a little of evidence that the two judges had their fingers on the pulse of the situation. On the contrary the government which must have its fingers on the situation, did not leave the situation as it was and ordered four prosecutions in respect of articles published by respondents 3 and 4 and one Shri Desai. In respect of these prosecutions government upheld the rule of law.

In view of what I have said in this opinion, the Supreme Court in summarily dismissing the petition for special leave has done great injury to the fabric of our laws. In my opinion once the Supreme Court has before it a full account of the grave issues involved, they should follow the course adopted by the House of Lords in Khwaja’s case When it first came before the House of Lords the petition was dismissed. When the petition in Zamir’s case came before the House raising the same issues as in Khwaja’s petition, the House of Lords recalled its order and admitted the petition.

In my opinion, the Supreme Court should recall its order, admit the special leave petition and decide the matter on merits.

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