PART-I
Front cover of the book banned by Bombay High Court
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.
(1) Except as otherwise provided elsewhere in this Code, no court, shall take cognizance of an offence of the category specified in sub-section (2), after the expiry of the period of limitation.
(2) The period of limitation shall be-
(a) Six months, if the offence is punishable with fine only;
(b) One year, if the offence is punishable with imprisonment for a term not exceeding one year;
I Three years, if the offence is punishable with imprisonment for a term exceeding one year but not exceeding three years.
(3) For the purposes of this section, the period of limitation, in relation to offences which may be tried together, shall be determined with reference to the offence which is punishable with the more severe punishment or, as the case may be, the most severe punishment.”
No where 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.
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 havI 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 guaran’ee that the translation is as accurate as it could be, and a careful persual of the workerusal 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 d”ne 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 avai’able 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.”
Viewed as legitimate minority rights by Bombay High Court!
1 Indian Union Muslim League
2 Maharashtra Muslim Lawyers Forum
3 Islamic Research Foundation4 Jamat-e-Islami-e-Hind
5 Bombay Aman Committee
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!
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!
PART-III
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 be 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:
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.
“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”
We can clearly see from the above paragraph that the Bombay High Court does not want to recall even marginally the horrors of religious Partition of India and the Hindu Genocide that followed both in West Pakistan and East Pakistan. Like the anti-Hindu “secular” Government of India, they may not like to know the patent fact that the Hindu Genocide that was set in motion in West Pakistan and East Pakistan areas in 1947 by Mohamed Ali Jinnah is still continuing unabated even today in Pakistan (Original West Pakistan) and Bangladesh (original East Pakistan). This can very easily be proved by furnishing some data. Hindus in West Pakistan constituted 12% of the total population in that region on 16 August, 1947. Today the Hindus account for less than 0.1% of the total population in PAKISTAN. So much for Islamic compassion and Islamic Brotherhood in Pakistan. (West Pakistan immediately after Partition). The Hindus (the wretched Kafirs) according to the Holy Quaran are not part of this Brotherhood!
Likewise, the Hindus accounted for 30.8% of the total population in East Pakistan on 16 August 1947. Today they account for less than 9% of the total population in BANGLA DESH (East Pakistan immediately after partition). So much for Islamic compassion and Islamic Brotherhood in Bangladesh. Here also the Hindus (the wretched Kafirs) according to the Holy Quran are not part of this Brotherhood! I am presenting below a photograph to prove that organized Genocide of Hindus is taking place in Bangladesh even today on a day-to-day basis with the full knowledge and tacit approval of not only the Government of the Islamic Republic of Bangladesh but also the evangelical and pan-Islamic anti-Hindu “secular” Government of India. THREE CHEERS FOR FRADULENT INDIAN SECULARISM!!!
A Hindu being beaten by Muslims in a mosque in Bangladesh. He was captured outside the mosque while going home. After Friday prayerswere over, the Muslims came out and grabbed the first Hindu they could. Mr. Vimal Patak a Bangladeshi born Hindu was beaten to death with sticks as the Muslim mullahs chanted “Kill the kafir! (non-muslim).” He died begging for his life
To all our anti-Hindu Courts of Law all the above facts are irrelevant. Anyone can see how the world and humanity-embracing judges of the Bombay High Court have been moved and swayed by the noble edifice of Islamic Brotherhood raised in India after our Independence by the openly Islamic Nehru and his successors in office!
Let me now move on to another dimension relating to the “lofty idealism” and “spirit of self-sacrifice” displayed by the Muslims of India during the days of our struggle for freedom which have been commented upon by the Bombay High Court.
The Bombay High Court judges have waxed eloquently on the role played by several Muslim leaders in the freedom struggle of India as “FOLLOWERS OF MAHATMA GANDHI”. It is my public duty to invite their judicial attention to the “patriotic” role played by some of the Muslim leaders of India during the days of Khilafat Movement in 1921. Maulana Mohammed Ali Jauhar (1878-1931) who was the most important Muslim leader in the days of the Khillafat Movement immediately after World War I. Maulana Mohammed Ali Jauhar paid his truly Islamic tribute to Maha-Kafir Mahatma Gandhi in these IMMORTAL WORDS: “However pure Gandhiji's character may be, he must appear to me from the point of view of religion inferior to any Mussalman, even though he be without character. Yes, according to my religion and creed, I do hold an adulterous and a fallen Mussalman to be better than Mahatma Gandhi”. All this he said in 1921. It has to be borne in mind that Mahatma Gandhi was the President of the Khilafat Movement at that time.
Maulana Mohammed Ali Jauhar, the Muslim follower of the Mahatma Gandhi who had thus politically stabbed Mahatma Gandhi with Islamic fervour in the back even in the days of the Khillafat Movement was given the supreme honour of presiding over the Kakinada Session of the Congress in 1923. It was in that Session THAT THE FIRST ISLAMIC BLOW WAS STRUCK AT THE NATIONAL SONG OF INDIA ‘VANDE MATARAM’ BY THE CONGRESS PRESIDENT MAULANA MOHAMMAD ALI JAUHAR HIMSELF. During those years, (particularly from 1917 to 1922) the reputed singer and patriot Vishnu Digambar Puluskar of Maharashtra used to sway the inaugural session of Congress with his deep and resonant singing of ‘Vande Mataram’ song. However, when Puluskar came on the dais to sing at the Kakinada Session in 1923, he was stopped by the President Maulana Mohammed Ali. The the Muslim follower of the Mahatma Gandhi Maulana Mohammed Ali Jauhar exclaimed that singing of music was taboo in Islam and as such he would not permit the singing of VANDE MATARAM song. The entire Assembly was stunned; everyone, including the top leaders and stalwarts adorning the dais like Mahatma Gandhi, Madan Mohan Malaviya, and others sat dumbstruck, unable to think of a proper reply or retort to the Congress President. Paluskar, however stuck to his post of duty.
Such an Islamic traitor, such an anti-Hindu barbarian who had the temerity to insult and betray his leader Mahatma Gandhi was honoured by the “secular”, pan-Islamic and anti-Hindu Government of India with the issue of a commemorative Postage Stamp in his honour in 1978!!! Islamic traitors during the days of British Raj have been elevated to the level of true patriots as “Muslim followers of Mahatma Gandhi”!!!
1978 Postage Stamp of Maulana Mohammad Ali Jauhar (The ‘Muslim follower’ who abused Mahatma Gandhi)
Prafull Goradia (a former Member of Parliament, a historian and a great scholar) and K.R Phanda belonging to the Indian Economic Service have brought out a fully documented book titled ‘ANTI-HINDUS’. We can see how the great “Muslim followers” of Mahatma Gandhi were faithless traitors to the cause of Indian Nationalism and Indian independence in the closing years of British Raj in India. The Ali Brothers --- Mohammad Ali and Shaukat Ali ---, Suhravardy, Mohammad Ali Jinnah and Maulana Abul Kalam Azad used Mahatma Gandhi and Pundit Nehru as disposable political condoms when they indulged in their pious Islamic obligation of partitioning Kaffir ‘Hindu India’ on religious lines and establishing Pakistan as a military base the spread of “Darul-Islam” in the rest of India.
Front Cover of the book by Prafull Goradia and K.R Phanda.
We can see the two Islamic marauders pinning the unwitting Mahatma Gandhi from either side!! True “Muslim followers of Mahatma Gandhi” indeed!!!
So much for the patriotic “Muslim followers” of Mahatma Gandhi!!! The learned judges of the Bombay High Court have shown an incredible historic sense and vision when they have paid handsome tributes to the “patriotic” role played by the “Muslim followers of Mahatma Gandhi” in the days of our struggle for National Freedom!!! Perhaps the great American thinker Thoreau (1817-1862) who politically influenced Mahatma Gandhi had many of our High Court Judges in mind when he wrote: “It takes two to speak the truth; one to speak and another to hear.”
The simple truth seems to be this: The judges of the Bombay High Court seem to be unaware of the past or do not want to know anything about it. For men holding high judicial posts, the inspiring words of Sir Winston Churchill should act as their searchlights and not the truly secular, humane and compassionate verses of the Quran: “If you chose to ignore the past, you run the risk of not only losing your control over the present but also forfeiting your right to the future”. Both the BAR and the Bar of History are being treated with supreme contempt by many of our Courts of Law today!
Hon’ble Justice Learned Hand of America defined the overriding qualifications of ideal, impersonal, patriotic and fearless judges. His clinching words are worth quoting in this context: “I venture to believe that it is important to a judge called upon to pass upon a question of constitutional Law, to have at least a bowing acquaintance with Acton and Maitland, with Thucydides, Gibbon and Carlyle, with Homer, Dante, Shakespeare and Milton, with Machiavelli, Montaigne, Rabelais, with Plato, Bacon, Hume and Kant as with the books written specifically on the subject. For in such matters every thing turns upon the SPIRIT in which he approaches the questions before him. The words he must construe are empty vessels into which he can pour nearly anything he will. Men do not gather figs of thistles, nor supply institutions from judges whose outlook is limited by parish or class. They must be aware that there are before them more than verbal problems; more than final solutions cast in generalizations of universal applicability. They must be aware of the changing social tensions in every society which make it an ORGANISM; which demand new schemes of adaptation; which will disrupt it, if rigidly confined.”
Do we have such eminent judges cast in the grand mould as defined and envisioned by Hon’ble Justice Learned Hand, in our midst, today? Do we have such judges with cosmic universal vision who can particularise in terms of the general and generalise in terms of the particular, with uncanny ability to seize the abstract and the concrete in the same flight of judicial thought? The judgment of the Bombay High Court in the case relating to the banning of R.V Bhasin’s book gives us no grounds for such hope, however tenuous.
Sir.Walter Scott (1771-1832) was absolutely right when he wrote “A lawyer without history or literature is a mechanic, a mere mason. If he possesses some knowledge of these, he may venture to call himself an architect.” These observations of Sir Walter Scott pari pasu are more applicable to the Judges. Most of our judges today seem to be mere ‘legal’ mechanics or ‘political or ‘communal’ or ‘denominational’ masons. The poor common litigants of India can never hope to get any justice from the gigantic ‘Fraud-Mill’ of our moribund judiciary
When Justice Felix Frankfurter passed away in 1962, the New York Times wrote a timeless Editorial titled ‘The Frankfurter Legacy’: “History will find greatness in Felix Frankfurter as a justice, not because of the results he reached but because of his attitude toward the process of decision. His guiding lights were detachment, rigorous integrity in dealing with the facts of a case, refusal to resort to unworthy means, no matter how noble the end, and above all dedication to the court as an institution.” Alas! For India, we have the blessing of having judges of the moral fibre and calibre of Justice Dinakaran and Justice Ramaswamy to disgrace the Benches of the Higher Judiciary.
The book written by Shri Bhasin was merely meant to highlight the contents of what is in Quran. The book quotes the Quran verse after verse as defense. Now can the Advocate Muchchala or the 5 Islamic communal organizations that he represents refute the verses of the Quran? Openly admitting that the Quran is not well written is not accepted by or acceptable to Muslims who regard it as the very word of Allah. How can Allah write something that is not well-written, unclear or subject to interpretations unless it is the words of man? Islam demands total obedience verbatim without questions. Any deviation is branded as apostasy by the Muslim Clerics and they compete with each other in being the first to issue a ‘fatwa’ ordering the killing of the apostate. Innocent writers of international renown like Salman Rushdie and Taslima Nasreen have been the unfortunate victims of this kind of Islamic ‘fatwa’.
The FEAR induced by this kind of Islamic cruelty, at is the reason most Muslims will never question the logic and rationality of Quran. They will just accept Quran and obey. Shri Bhasin’s book in question quotes the verses of Quran as proof. Now let the opposing advocate Mr Muchchala actually read that book and refute the verses of the Quran in open Court. Will he dare do it? He will have a ‘fatwa’ by Muslim Clerics ordering his killing. So then what is the legal case about?
In the case of R.V Bhasin he became the victim of executive illegal “secular” fatwa issued by the Maharashtra Government in 2007 and equally illegal judicial fatwa issued by the Bombay High Court on January 6, 2010.
The contents of Shri Bhasin’s book cannot be or ought not in reality be objectionable to the Muslim fanatics. After all they have received, learnt and imbibed the very same anti-kafir (which in the Indian context means anti-Hindu) message in their Muslim Quranic schools or Madrasas. Saudi textbooks and Pakistani school textbooks printed by their respective Governments cite the verses of the very same Quran to teach young impressionable schoolboys to ‘Kill the kafir’. Shri Bhasin’s book is as accurate as the Official Saudi and Pakistani school text books in portraying the true nature of Islam. So then what is the problem? In Chennai when all the gory details of the barbarous, murderous Islamic Mughal history was sought to be displayed by Francoise Gautier, the Muslim fanatics led by the ‘Nawab of Arcot’ Muhammad Abdul Ali protested against it. NOT FOR THE CONTENT, BUT THE DISPLAY OF THE CONTENT! The Judges of the Bombay High Court should not choose to close their eyes to the public incidents of this kind of Islamic intolerance taking place with unfailing regularity in different parts of India.
What is written in the Official Saudi and Pakistani school text books is meant for the eyes and ears of Muslims only. This is their war strategy; the strategy of the Quranic injunction of Jihad or Islamic World domination using force wherever and when ever needed. This war strategy, needless to say should not be disclosed to the infidels, lest they rise up and take counter action. These facts fully backed by authentic documentary evidence have been brought into the public domain for valid reasons of national security and preservation of India’s territorial integrity by Shri R.V Bhasin in his now-banned book.
The standard Muslim tactics to counter such honest public exposure is PUBLIC DENIAL. They cannot of course deny the violent and brutal verses and barbarous message of the Quran but they try to prevent its public exposure to non-Muslims. Legal obstructions are one way to prevent this public exposure of the violent and brutal verses and message of the Quran. The 5 interloper or ‘Intervener’ Islamic communal organizations have used the Bombay High Court not to defend the law of the land or to secure justice for Indian citizens, but to fulfill the aim of Jihad or Islamic world domination. The Courts of Law in India should act to defend the Indian Constitution and to protect the rights of Indian citizens. They should not act as handmaidens to some foreign imperialist ideology, in this case, Global Islam.
Bombay High Court objected to the words used by Shri Bhasin in his banned book. According to the Bombay High Court, these words are calculated or will have the effect of hurting or wounding the religious feelings and sentiments of the Muslims of India. We can see the double standards practiced by our Courts of Law which can only be termed as blatant discrimination between the religious feelings and sentiments of the Majority Hindus of India and the religious feelings and sentiments of the Minority Muslims of India. Let me give some concrete examples to illustrate this point.
Justice Sanjay Kishan Kaul of Delhi High Court, while dismissing the criminal complaints against the pornographic Islamic painter M.F Hussein on 8th May 2008 said, “A painter has his own perspective of looking at things and it cannot be the basis of initiating criminal proceedings against him. In India a new Puritanism is being carried out in the name of cultural purity and a host of ignorant people are vandalizing art and pushing us towards pre-renaissance era.” If that be so, why did the Courts of Law in India keep quiet when the Muslim marauders in India went on a rampage destroying shops and public places in several towns and cities in Uttar Pradesh protesting against the cartoons of Mohammad the prophet drawn by a Danish painter in 2007? If M.F Hussein can have unlimited freedom to denigrate the Hindu Gods and Goddesses of India through his ugly and vulgar paintings, then the same freedom can be exercised by a Danish painter regarding Muslim God Allah!
If M.F Hussein can have his own perspective of looking at Hindu Gods and Goddesses, totally unmindful of the grievous hurt he is causing to the religious feelings and sentiments of the Hindus of India, then Shri R.V Bhasin should also be given the same artistic and intellectual freedom to have his own perspective on the different facets of Islam. This only proves my point. Both the Bombay High Court and the Delhi High Court are functioning like patently anti-Hindu Sharia Courts in Saudi Arabia and Pakistan!
In September 2008 the Supreme Court quashed all proceedings against the Islamic painter Maqbul Fida Husain, against his pornographic paintings depicting the nude figures of Hindu Gods and Goddess.
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While refusing to allow prosecution against the painter on obscenity charges, the Honourable Chief Justice of India K.G Balakrishan asked: “It (Hussain’s work) is art. If you don’t want to see it, then don’t see it. There are so many such art forms in the (Hindu) temple structures.”
If that be so according to the Supreme Court of India, then as a freelance journalist I would like to say to our “learned” Judges of Bombay High Court: “WELL THEN YOUR HONOURS, THE MUSLIM ORGANIZATIONS AND INDIVIDUAL FANATICS WHO DON’T WANT TO READ SHRI BHASIN’S BOOK NEED NOT READ IT AT ALL. SO THERE WAS NO CAUSE FOR A BAN ON HIS BOOK BY THE GOVERNMENT OF MAHARASHTRA IN 2007!”
Naked Bharat Mata Viewed as artistic freedom of M.F.Hussain by Honourable Justice Sanjay Kishan Kaul of Delhi High Court and what Honourable Chief Justice Balakrishnan
Further I would like to invite the kind attention of the Learned Chief Justice of India to the following two “Glorious” paintings of M.F.Hussain shown above. One painting shows a Muslim Aristocrat if not a terrorist emperor in Royal Dress drawing his Islamic (by no means artistic!) sword behind the back of a naked Hindu. We can see the Islamic eyes of hate and contempt oozing from his ‘compassionate’ eyes towards the helpless Hindu Kafir. The other painting shows Bharat Mata in the nude. I would like to put this simple question to the Honourable Chief Justice: “In how many Hindu temples do we have the painting of a Muslim marauder drawing his Islamic sword according to the Quranic injunctions behind the back of a naked Hindu? In how many Hindu temples do we have the nude paintings of BHARAT MATA? Can the Hindus of India have the same artistic freedom as M.F.Hussain to paint Allah in the nude? What are the Special Minority Rights and Privileges of M.F.Hussain in this regard?” I am mentioning these FACTS which are very relevant to the case in question. Did not the great American Judge Justice Oliver Wendell Holmes (1841-1935) declare for all time: “Truly, I can assert with authority, that to a clear eye the smallest fact is a window through which the Infinite may be seen.”
In my humble view, neither blessed with immortality nor holding any official public position of deathless authority, immortal painter like M.F.Hussain has no ‘artistic freedom’ to hurt the feelings touching upon the self-respect and self esteem of the Hindus of India by showing them in such a shameful plight. Nor has he any ‘artistic freedom’ to paint BHARAT MATA in the nude. Nor has he any ‘artistic freedom’ to superimpose the Dharma Chakra on the nude picture of Bharat Mata. As an unlettered and illiterate Hindu, I am shocked by the highly evolved and sublime aesthetic and cultural sensibility of the Supreme Court of India to these fundamentally ‘anti-Hindu and anti-national artistic creations’ of M.F.Hussain. It is a public fact that more than 1000 criminal cases have been filed against M.F.Hussain in different parts of India. He is now in hiding in the Middle East!
I am also presenting below two other great artistic creations of the Islamic evil ‘genius’ M.F.Hussain. One painting denigrates Goddess Lakshmi. The other denigrates Goddess Durga. If this can be viewed by Honourable Chief Justice Balakrishnan as an integral part of the artistic freedom of M.F.Hussain, then I would like to pose these questions to him: Will every Hindu painter have the freedom to depict Mohammed the Prophet in the nude? Will that also be viewed as a part and parcel of the artistic freedom of Hindu painters? If the answer to this question is ‘YES’, then the Supreme Court would have solved the Hindu Muslim religious and cultural problem once for all in one masterly stroke, mercifully not only for India but also for all mankind!
Naked Goddess Lakshmi (Note how Ganesha’s Tilak is Lakshmi’s 
Goddess Durga in sexual union with tiger
I have given the pictorial examples of M.F Hussein’s paintings above to bring out the fact of double standards prevailing in our Courts of Law in so far as the fundamental rights of Hindus and the fundamental rights of Muslims are concerned. According to our Supreme Court only the Muslims can have all rights of artistic expression. Only their religious sensitivities and sensibilities are important and paramount. It would be religious blasphemy for the Hindus of India to demand equality of rights with the Muslims of India. The Muslims only have the right to obtain these rights through acts of violence and terrorism let loose against the Hindus from time to time or moving through Courts of Law for getting their Islamic and sectarian benefits through the benevolent and safer path of ‘JUDICIAL TERRORISM’.
What Honourable Justice Sanjay Kishan Kaul of Delhi High Court and what Honourable Chief Justice Balakrishnan have failed to note is that the pornographic nude paintings of M.F.Hussain of Hindu Gods and Goddesses are not only totally perverse but abominably atrocious. M.F.Hussain’s barbarous paintings are shockingly stark symbols of his ethnic bestiality, religious perversity and cultural barbarism. THROUGH HIS VULGAR PAINTINGS HE HAS CAUSED A GRIEVOUS HURT TO THE EMOTIONS AND FEELINGS OF ALL THE HINDUS OF THE WORLD. How can this patently public fact be ignored by our Courts of Law in the blatantly dictatorial manner of an oriental potentate like Ghengis Khan or Kublai Khan or Timur or Aurangazeb? Are not our learned Judges worried about only the ‘Minority Rights’ of M.F.Hussain and other Muslims of India? Are they not riding roughshod over the legitimate religious feelings of Hindus in majority in India! Are the religious feelings and sentiments of the Hindus of India legally irrelevant to our Courts of Law without Justice?
How can our Courts of Law view M.F.Hussain’s vulgar paintings as an integral and legitimate part of his minority rights on the one hand and of his unassailable freedom of creative and artistic expression as an independent artist on the other? In this context I have to dwell at length on different facets of artistic freedom. Here I am guided by a brilliant essay on artistic freedom written by Kishore Asthana. Let me quote his brilliant and appropriate words in this context: "An artist creates art from three primary sources. The first, of course, is the heart. What emerges from an Artists heart can indeed be called ART. The second is the brain. Sometimes an artist creates art, like a student who writes an essay. This is essentially poster-art and is deliberately crafted. This should be called SmArt. Then there is the third source, the organs of procreation. When the primary motivating factor for art arises out of the artist's genitalia, then it can be termed FArt. Of course, in any work of art, there may be different proportions of Art, SmArt and Fart"
All responsible intellectuals and citizens would always be champions of artistic freedom, but within reasonable and civilized limits and not divorced from the accepted tradition of social, spiritual and cultural values. So long as these limits are respected, I am all for Artistic freedom. Whatever arises out of the heart of the artist must be inviolate for he has no discretion in it. We may criticize it but we do not have the freedom to ban it. SmArt-work is deliberately created. SmArtistic freedom should not be defended as vehemently, because, unlike Art, the artist has discretion in creating SmArt. If it makes us think, we should appreciate it. If it succeeds in raising our aesthetic sensibility, we should applaud it. However, if it goes against the grain, we should condemn it.FArtistic freedom is like telling us that everyone is free to keep letting out either odoriferous or foul smelling farts in a crowded room and no one should object to these because every artist must have freedom to create FArt. In my view M F Hussain's paintings are in the nature of foul smelling noisy farts in a crowded room and that is why thousands of people in India, and more particularly the Hindus, have expressed themselves so violently against the so called artistic FArts of M F Hussain, with many of them dragging M H Hussain to several courts of law.
THE IMAGES OF NAKED MOTHER INDIA, NAKED LAKSHMI AND SPREAD-EAGLED DURGA WITH SOMEONE EMERGING FROM HER VAGINA ARE ALL EXAMPLES OF M F HUSSAIN'S FOUL SMELLING FArt.
Let me now give one more instance. Recently on November 12, 2009, the Uttar Pradesh government banned a book in which an "imaginary picture" of Prophet Mohammad was printed by the publisher. The book titled ‘Udiyaman Bhartiya Samaj Mein Sikshak’, which carried an imaginary picture of Prophet Mohammad, was banned by the State Government. The Government said that the ban was imposed for the reason that printing picture was against the tenet of Islam and could hurt religious sentiments of the Muslims, which may lead to a break down of law and order. This book in Hindi written by Karn Singh, a retired teacher, was published by Govind Prakashan from Lakhimpur Kheri district. The government directed all the district magistrates and SPs to seize all the copies of the book in circulation. Later Karn Singh, the author of the book was also arrested by police for distorting facts about Islam. We can see the blatant discrimination being made between the pornographic paintings of Hindu Gods and Goddesses by M.F Hussain and a harmless picture depicting Mohammad the Prophet in Karn Singh’s book. If Karn Singh can be arrested, by the U.P Government, then M.F Hussein should also be arrested by the Government immediately. If Karn Singh were to go to the Supreme Court with a writ petition, will the Supreme Court of India extend the same mercy to him as it has done in the case of M.F Hussain? This is the moot question that is being asked by all the enlightened Hindus of India today.
In my view the peace-loving Hindus of India are being used as disposal fodder in the heavily loaded mill of judicial activism. They are becoming helpless victims of judicialization of administration, judicial populism, judicial dictatorship, authoritarian judicialism, judicial adhocism, judicial excessivism, judicial overreach, judicial despotism, judicial trespass, judicial adventurism, judicial tyranny and even judicial terrorism. Here I cannot help quoting the words of Justice HR Khanna, one of the greatest judges of world class India has produced after her independence: “Judiciary should not ‘transgress’ into the executive and legislative spheres. Judges should not take over the country’s governance. This can disrupt the constitutional balance and end in a disaster. A non-elective body, the judiciary’s role is limited to being the Constitution’s guardian. Of all the different kinds of despotism, judicial despotism is the most illogical, irrational and inexcusable”. The same view has been expressed by Justice V.R. Krishna Iyer: “Judicial usurpation erodes constitutional division of powers among the different instrumentalities. Our country has not entrusted governance to Justices or legislation to Courts of Law”. Here the words of Lord Bacon, Lord Chief Justice of England become relevant: “Let the judges remember that Solomon’s throne was supported by lions on both sides: let them be lions, but yet lions under the throne”.
‘Political’ Judicial activism is not merely inconsistent with the Rule of Law, it is a total negation of the Rule of Law. If cases are decided on the personal philosophies or subterranean political affiliations of judges, then in reality there is no LAW. If the Constitution has no objective meaning but means only what judges think it ought to mean, it is not a Constitution at all but an empty symbol, a sort of national totem. History shows that vague laws, subjectively interpreted and arbitrarily applied, are the tools of tyrants. The equation is as old as the human race---power minus responsibility equals despotism.
The law is not the private property of lawyers, nor is justice the exclusive province of judges and juries. In the final analysis, true justice is not a matter of Courts and Law Books, but of a commitment in each of us to liberty and mutual respect.
To conclude in the beautiful words of Honourable Justice Warren E Burger (1907-1995): “Ideas, ideals and great conceptions are vital to a system of justice. Concepts of justice must have hands and feet or they remain sterile abstractions. The hands and feet we need are efficient means and methods to carry out justice in every case in the shortest possible time and at the lowest possible cost. This is the challenge to every lawyer and judge in America.” These words are no less applicable and relevant to the Indian judicial system which is in a state of terminal cancer today. The four solid planks of the Indian Judiciary today seem to be Judicial Adhocism, Judicial Adventurism, Judicial ‘Errorism’ and Judicial Terrorism.
(concluded)
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