08, Jan 1995
By Fali S. Nariman, eminent jurist
It is difficult to comment, much less to criticise, an order of the Supreme Court refusing special leave to appeal under article 136 of the Constitution. It is discretionary jurisdiction. The SC is not bound to interfere with every erroneous order of the High Court, nor does its interference tantamount to an affirmation of the order.
All this is trite law, but then, there are cases and cases. The judgement of the division bench of the Bombay High Court in ‘J.B. D’Souza versus state of Maharashtra’ is one which compelled comment – affirmative or negative – by the highest Court: if only for the reason that it interpreted sections 153A and 153B of the Penal Code (in my opinion wrongly) and held that the offending newspaper articles did not come within the “mischief” of these sections (again in my opinion, in error).
One must first become acquainted with the history of the sections to appreciate the “mischief” they sought to prevent. Sections 153A and 153B were enacted in 1898 as an addition to the Penal Code for the greater protection of public tranquility in a pluralistic society, the members of which professed different religions and faiths.
When in the United Kingdom more than a century ago, Lord Macaulay had protested in British Parliament against the way the blasphemy laws were then administered, he had added: “If I were a Judge in India I would have no scruple about punishing a Christian who should pollute a mosque.”
When Macaulay became a legislator in India, he saw to it (by provisions made in the Penal Code) that the law protected the religious feelings of all – in Chapter XV (Offences Relating to Religion). These provisions were inadequate to deal with riots and civil strife, and the Penal Code was amended to include Sections 153A and 153B.
Today we are an explosively plural society, and desperately need sections 153A and 153B – but we need to use them as well. They remain on our statue book to give assurance to the people of India that promoting enmity between different groups on grounds of religion will not be tolerated and will be visited with penal sanctions; to guarantee to the minorities that secularism is a basic feature of our laws, an affirmation made so very recently, and in such eloquent terms, by a bench of nine justices of the Supreme Court (in Bommai’s case – March 1994). It is this assurance that was denied to the people of Maharashtra, especially to the minorities in the state, by the High Court of Bombay.
And it was for this reason that the discretionary jurisdiction of the Supreme Court was invoked, but without success. The ratio of the judgement of the High Court ought not to have been permitted to stand, and made non-vulnerable only because of the rhetoric expressed at the end. The judges of the High Court felt (and said so in one of the last paragraphs of the judgement) that launching a prosecution now would be futile since “a lot of time has elapsed and peace, tranquility and communal harmony, of which Bombay city is historically proud of, is restored.” A moment’s reflection would (and should) have convinced the justices that it was inflammatory articles such as those cited in D’Souza’s writ petition that had aggravated (if not contributed to) the violent disturbances that shook Bombay in January 1993; and that if such-like articles were repeated the already fragile edifice of “communal harmony” (dear to the hearts of the judges) would collapse.
There is something more. Nowhere in its 57-page judgement does the High Court express any displeasure at the tone and content of the offending articles. There is no expression of censure, no record of any expression on the part of the offending newspaper of contrite grief; for religious feelings which may have been hurt.
When judges speak, what they say (and significantly, what they do not say) sends dwn strong signals. People listen, and shape their actions accordingly. The message conveyed by the judgement lies as much in what it does not say as in what it does. The message clearly is that the intemperate word against a particular community likely to cause disharmony will now not only go unpunished, but will not even suffer a judicial rebuke. This is the single most sinister, most deplorable fall-out of the judgement of the justices Majithia and Dudhat.
That all this should not have been seen fit to be corrected by the Supreme Court of India when its jurisdiction was invoked, prompts only a plaintive prayer, “Where then, O Lord, shall we turn, for the redressal of palpable wrongs?”