Kishan Bharwad: The real price of free speech

The metaphorical manner in which statutes are conceptualised often leads scholars to identify the elements of law “as if [they] were a sentient being or a concrete thing.”

Therefore, when it comes to stories surrounding the application of laws, “[c]haracters can be entities, like courts or legislatures or prosecutors’ offices”, with the plot being controlled by abstract concepts, like a principle or a policy, or precedent. The narrative of the law provides a ready stock of characters to 'people' with classic elements of storytelling involving plots with champions, children, tricksters, mentors, kings, mothers, demons, or sages.

The law, therefore, often requires a brief brush with history to understand the perspectives arising from various segments of society. A brief history of events that took place in undivided Colonial India through the 1920s would enrich the debate of the day. During the said time, due to a surge in publication of critical literature having an effect on communal tensions across India, legislators enacted a new provision within the Indian Penal Code: Section 295-A. It is said that there were a variety of factors that contributed to the rising communal tensions during this period. Following the dissolution of Gandhi’s Non-Cooperation and the Ali brothers’ Khilafat Movement in 1922, there was a great deal of confusion and disorganization amongst the various communal groups that had participated. The three cases were Rangila Rasul, Vichitra Jivan, and Risala-i-Vartman.

The Rangila Rasul Affair

In May 1924, the Hindu proprietor of a bookstore in Lahore by the name of Mahashe Rajpal printed a purportedly “scurrilous pamphlet” titled Rangila Rasul. The author of the pamphlet remained anonymous, although researchers have since determined that the author was an Arya Samajist by the name of Pandit Chamupati. The publication quickly aggravated communal tensions between Hindus and Muslims within the region, with the first edition selling one thousand copies. Within a couple of months, protests and agitation by a particular community had alerted the Punjab government to its existence. Officials such as Governor Hailey of Punjab recognised the severity of the offence contained within the text of the pamphlet.

The level of unrest prompted the government to charge Rajpal under Section 153-A of the Indian Penal Code. The trial proceedings, prosecuting Rajpal under this section, commenced in October before the magistrate, but the final judgment of the Lahore High Court was not issued for three years. The writing in the pamphlet matched the salacious insinuations of its title, as it brazenly discussed the intimate relationships of the Prophet Muhammad.

During the trial, the defence argued that the “allegations in the pamphlet were true, as shown by the fact that they were based upon material in works by Muslim and European scholars.” The Magistrate found that Rajpal was guilty, but held that factual truthfulness would be relevant. The prosecution challenged the said finding. On November 13, 1925, Justice Martineau of the Lahore High Court, in a short judgment in Crown v. Raj Pal, 1925 SCC OnLine Lah 312 found that “it is relevant to show the intention of the accused in writing the pamphlet complained of, and also to prove that the allegations contained therein are based on facts as distinguished from rumour.”

Subsequently, the Magistrate determined that Rajpal’s publication had been “a wanton attack upon the Prophet of Islam to hold him up to ridicule and contempt, to ridicule his religion and thus to wound the feelings of his followers,” and that he was guilty under Section 153-A because “the natural result of the publication of such a pamphlet would be to incense the Muhammadans against the author of the book and those whom they conceive to be, rightly or wrongly, as the sympathizers of the author.”

Factoring in the lack of “mitigating factors” and acknowledging that “communal relations...were already tense” the Magistrate, issued a rather severe sentence of eighteen months' rigorous imprisonment and a fine of ₹1,000. On appeal before the Lahore Sessions Court, the judge, F Nicholas, upheld the Magistrate’s original judgment, but reduced Rajpal’s sentence to six months of rigorous imprisonment.

In appeal to the Lahore High Court, on May 4, 1927, Justice Dalip Singh in Raj Paul v. Emperor, [1927 SCC OnLine Lah 304: AIR 1927 Lah 590] delivered the final, landmark ruling in the Rajpal case, and one that would prove to have long-lasting consequences on criminal law related to religious offences within India.

The petitioner argued that the facts of the Rangila Rasul case “[did] not constitute an offence within the meaning of S. 153A,” on the grounds that “the word 'classes’ does not include religious denominations but means 'races,’” and that “criticism or satire on a religious teacher is not within the purview of the section.” Justice Dalip Singh, quoting the previous decisions of the judges from the lower courts, noted that the trial court found that the accused had no other intention except to make a wanton attack upon the Prophet of Islam, to hold him up to ridicule and contempt, to ridicule his religion and thus, to wound the feelings of his followers.

Justice Dalip Singh rejected the defence’s contentions that “the pamphlet [did] not show any such intention and that it was only meant to show the evils of polygamy and marriage between persons of disparate age” and concurred with each of the lower court judges’ respective positions that the pamphlet was in fact a “scurrilous satire on the founder of the Muslim religion,” but not an attack upon the religion as a whole.

Following this, the judge described another argument put forward by the government advocate who at that time effectively argued that there should be a different standard adopted for free speech depending upon the tolerance levels and the “fanatical” nature of the followers.

However, the judge immediately rejected this argument on the grounds that “ignorance or fanaticism of a particular community” should not “determine the nature of an act.” Although he acknowledged that such attitudes might “aggravate the offence in certain cases,” he viewed the consequence of this line of argument as unacceptable, stating that “The nature of the act, namely whether it is an offence or not, cannot be determined by the reaction of a particular class.” The said finding is critical, and in terms of the principle of rule of law and equal application of laws, a finding which would often be ignored in the future.

Finally, on the question of the applicability of Section 153A and on how the provision is to function in such difficult situations, the judge held that the
“section was intended to prevent persons from making attacks on a particular community as it exists at the present time and was not meant to stop polemics against deceased religious leaders however scurrilous and in bad taste such attacks might be.”

Justice Dalip Singh acquitted the accused and held that the pamphlet may arise “contempt of all decent persons” and may even “wound the religious feelings of certain Mussalmans”, but cannot be held to have promoted feelings of enmity and hatred between different classes.

This distinction between distasteful content, which may even invite contempt by a class or community, as opposed to content promoting enmity or hatred, was a fine legal distinction carved out by Justice Singh. This fine distinction in application evidently results in protecting free speech. This distinction, propounded in the pre-constitutional era, has often been ironically blurred in the era of freedom of expression had constitutional protection.

Be that as it may, what followed was even more startling. After several unsuccessful assassination attempts on Rajpal, he was stabbed to death by a young carpenter named Ilm-ud-din on April 6, 1929. Ilm-ud-din was sentenced to death and the sentence was carried out on October 31, 1929. The judgment of the Division Bench of the Lahore High Court, in Ilam Din v. Emperor [1929 SCC OnLine Lah 379 : AIR 1930 Lah 157] records that Ilm-ud-din was represented by none other than Mohammad Ali Jinnah, a leading lawyer in Bombay at the time.

It is said that the eulogy at the funeral of Ilm-uddin was read by none other than Allama Iqbal [of Saare Jahan Se Aacha fame]. An interesting fact is that Rajpal was merely the publisher of the pamphlet, and was not the actual the writer of the contentious publication. However, despite constant death threats, he never revealed the actual writer, and paid the highest price for these heroics.

Vichitra Jivan and Risala-i-Vartman cases

Although Vichitra Jivan was published in November 1923, prior to the Rangila Rasul pamphlet, the government did not pursue action against it until September 1926, while Rajpal’s case was before the courts. In October 1926, the book was declared forfeit by the local government under section 99A of the Criminal Procedure Code (CrPC) on the grounds that the subject matter was punishable under Section 153-A. However, by this time, the book had already gone through three editions and approximately 6,000 copies had been published.

The case was first brought to the Agra District Magistrate, HR Nevill, but the defence counsel was able to secure a hearing in the Allahabad High Court to challenge the order of forfeiture. The trial in the High Court was presided over by two European judges - Justices Walsh and Lindsay - and one Indian judge, Justice Banerji. It was, however, Justice Lindsay that penned the judgment regarding the forfeiture of the book on February 24, 1927.

The author of the Vichitra Jivan was an Arya Samajist preacher by the name of Pandit Kali Charan Sharma, and the title of the book, as translated by the Allahabad High Court judge, Justice Lindsay, was the Strange Life: Strange and Diverting Episodes in the Life of Mohammad Sahib. The writer claimed that the primary object of the publication was missionary work, plainly expressed in the preface of the book.

On the issue of injunction under the CrPC [statutory forfeiture], the Allahabad High Court opined that in the case of the Vichitra Jivan publication, the “natural, indeed the inevitable consequence of …. this book is the excitement of enmity or hatred or both between the followers of the Hindu and Mahomedan religions.”

The somewhat different approaches of the judges can be culled out from the judgment in Emperor v. Kali Charan Sharma, 1927 SCC OnLine All 184 where different sensitivities of communities became the guiding factor. If some historical accounts are read, it was clear that the Agra case was deliberately made a test case to overrule the balancing approach the Lahore High Court took in the Rajpal case.

In the criminal proceedings, the case was then sent back to Magistrate Nevill, who ruled that Sharma was guilty under Section 153-A and delivered a “relatively heavy sentence of one year of rigorous imprisonment and a fine of one thousand rupees in lieu of an additional six months imprisonment”. In appeal, Justice Dalal delivered his final judgment on May 23, 1927 in Kali Charan Sharma v. King-Emperor, 1927 SCC OnLine All 187 wherein he adopted an approach which, with a broad brush, could declare vast portions of speech as problematic, and hence, liable for punishment.

The other case, the case of Risala-i-Vartman, took place several weeks after the conclusion of the Rangila Rasul case. The Punjab government had proscribed and initiated proceedings against “Sair-i- Dozakh” or “A Trip to Hell,” an article that had been published in the May issue of a newly established journal: the Risala-i-Vartman. Shortly after the appearance of the article in Amritsar in mid-May 1927, posters - purportedly created by the Mirza of the Ahmadiyya Muslims in Qadian - were distributed amongst Muslims, highlighting the blasphemous contents of the publication and directing public attention towards the journal.

In response to the “considerable excitement” that this publication caused amongst Amritsar’s Muslim population, the government proscribed the publication under Section 99A of the CrPC and then charged Gian Chand Pathak, the editor, printer and publisher of the journal, and Devi Sharan Sharma, the author of the offending article, under Section 153-A of the Indian Penal Code.

It was under special circumstances of a communally charged atmosphere that the case was successfully transferred to the Lahore High Court and ostensibly to overrule the dictum of the Rajpal case. The trials against both Sharma and Pathak proceeded and while the trials were separate, the judges delivered a single judgment in both cases on August 6, 1927 in Devi Sharan Sharma v. Emperor, 1927 SCC OnLine Lah 454.

The Lahore High Court rejected its own approach in the Rajpal case and specifically tested the nature of the contents of the speech on the basis of the opinions expressed by common men who were made prosecution witnesses. In effect, criminal liability was foisted on two persons because the publication aroused a particular feeling in a select group of people handpicked by the prosecution. Therefore, the application of law, which should be consistent irrespective of the community that a particular content may hurt, depended on the subjective and variable sensitivities of a few prosecution witnesses.

As per the political accounts, the said ruling was necessary in order assuage the religious feelings of the Muslim community at that time (which had recently gathered and organised as a political entity across the sub-continent in support of Ottoman Caliph in the Khilafat movement).

Fast forward

On December 2, 2015, in response to the then Union Finance Minister's statements in support of decriminalization of homosexuality, Azam Khan, a politician of the Samajwadi Party, made certain distasteful remarks. In response to the same, one Kamlesh Tiwari made certain distasteful remarks against the Prophet.

What followed was almost a tinted re-hash of history. About one lakh protestors gathered in Muzaffarnagar and demanded death penalty for Tiwari. It was Tiwari who was arrested in Lucknow while the protest rallies against his statement spread in all parts of the country. Tiwari was at first charged under the Indian Penal Code Sections 153-A (promoting enmity between groups on the grounds of religion and doing acts prejudicial to maintenance of harmony) and 295-A (deliberate and malicious acts, intended to outrage religious feelings of any class by insulting its religion or religious beliefs).

To make matters worse and to prevent bail of any kind, Tiwari was placed in “preventive detention” under the National Security Act, which give the government the power to preventively detain persons to prevent them “from acting in any manner prejudicial to the defence of India, the relations of India with foreign powers, or the security of India.”

It was only after spending almost a year in jail and after prodding by the Supreme Court in Kamlesh Tiwari v. Union of India, (2016) 9 SCC 363, the detention order under the National Security Act was revoked by the Allahabad High Court on September 30, 2016. The Lucknow Bench, in Kamlesh Tiwari Thru. His Wife Smt. Kiran Tiwar v. Union of India, Habeas Corpus No. - 5369 of 2016, while quashing his detention on a technical plea, [as is often the case in detention matters] recorded that “State Government has failed to follow the provisions of the proviso to sub-section (3) of Section 3 of the Act, 1980, therefore, the petitioner's detention under the custody of Superintendent of District Jail, Lucknow is unlawful.”

Be that as it may, on October 18, 2019, Tiwari was murdered by two allegedly ISIS inspired assailants, Farid-ud-din Shaikh and Ashfak Shaikh, in his office-cum-residence at Lucknow. The duo had come dressed in saffron kurtas to give him a box of sweets. According to the post-mortem report, he was stabbed 15 times and shot once.

Kishan Bharwad is not the first, and may not be last. The real price of free speech has been paid by characters who have been relegated to the sidelines of our political and constitutional history.

Kanu Agrawal is an advocate at the Supreme Court of India.

Disclaimer: The views and opinions expressed in this article are those of the author's and do not necessarily reflect the views of Bar & Bench.

References:

Linda Edwards, “Once Upon a Time in Law”: 889

Thursby, G. R. Hindu-Muslim Relations in British India: A Study of Controversy, Conflict, and Communal Movements in Northern India. Leiden: Brill, 1975

Gail Minault, The Khilafat Movement: Religious Symbolism and Political Mobilization in India (New York: Columbia University Press, 1982)

The Magistrate’s ruling, quoted in Thursby, Hindu-Muslim: 46

Kali-Charan Sharma v. King-Emperor AIR 1927 Allahabad 650

https://www.dnaindia.com/india/report-here-s-why-1-lakh-muslims-are-demanding-death-penalty-for-kamlesh-tiwari-2154898