That freedom of the press is inversely proportional to religious intolerance is proved by the fact that India has plunged eight places to 150 out of 180 countries in 2022, simultaneously with the threats of violence if loudspeakers were not removed from mosques. Even as former chief minister Devendra Fadnavis declared he was present in person to demolish the Babri Masjid on December 6, 1992. “No Shiv Sainik was present. I was lathi-charged and spent 18 days in jail,” he proudly declared. So, is the BJP or its ally-turned-foe, the Shiv Sena, a true votary of Hindutva?
Fadnavis, who is an advocate from Nagpur, where the former CJI Sharad Bobde visited the RSS headquarters, will know he is attracting sections 153 (A), apart from 295 A and 505 of the Indian Penal Code, 1860. Whether the police register an FIR against him because, like Raj Thackeray, he is not in power, remains to be seen. The Aurangabad police did register an FIR against the charismatic Raj Thackeray, who invoked the Sena icon, Bal Thackeray, to justify his call to play the Hanuman Chalisa loudly in front of mosques if their loudspeakers were not removed.
This leads us to the conclusion that the three heads of public order, public health, and morality which alone restrict the right to practice, profess and propagate any religion of your choice guaranteed under Article 25 with its concomitant right to free speech under Article 19 (1) (a) are available only to radical politicians who exploit religion to regain power. Critics state the MNS chief, Raj Thackeray, is trying to stage a comeback by first allegedly trying to drive out north Indians from Mumbai in 2008 and now to demand the removal of loudspeakers from mosques. His speeches are definitely provocative.
But inciting others to violence can bring any person within the ambit of the law of sedition which is why the attorney-general V. Venugopal has sought its abrogation because it is an outdated law used to convict Lokmanya Tilak and Mahatma Gandhi during the freedom struggle. Charisma apart, Raj Thackeray’s speeches appear to be fiery enough to attract section 124-A of the IPC which has been misused against journalists like Rajdeep Sardesai, and Vinod K. Jose apart from others like Congress MP Shashi Tharoor.
Kerala journalist Siddique Kappan who was jailed under the Unlawful Activities Prevention Act and also under the Information Technology Act had charges under sections 153 A, 295 A, and 505 of the IPC slapped against him. He was charged with being a front for the Popular Front of India, an extremist group, while on his way to report on the rape, murder, and cremation of a Dalit girl in Hathras in 2020. Two years later, before the municipal elections, Opposition leader Devendra Fadnavis and MNS leader Raj Thackeray made fiery speeches while Kappan never did so. Till date, Fadnavis appears not to have been booked while an FIR against Thackeray may never result in a conviction.
There have been attempts made by pseudo-scholars to abrogate the grounds of promoting enmity between groups incorporated in sections 153 A, 153 B, 295 A, and 505 from the penal code because they restrict free speech. Unlike the US Constitution, where their First Amendment widened their amplitude of free speech, the First Amendment to our Constitution nearly extinguished it. In the USA, any citizen can burn their flag or call for pogroms against the Jews. In India, our leaders routinely call for pogroms against the minorities — and get away with it. Our leaders transcend the Constitution and the law.
Interestingly, Shyama Prasad Mukherjee, who founded the Akhil Bharatiya Hindu Mahasabha between 1943 and 1946 and also the Bharatiya Jana Sangh in 1951, delivered a speech after independence calling for a war to be declared against Pakistan “if they wanted it” to reunify India and Pakistan.
This culminated in Jawaharlal Nehru adding three insensate grounds of “friendly relations with foreign states, public order, and incitement to an offence” to restrict free speech which at that time had only five grounds. It was in that bygone era of the early 1950s that Justice Sarjoo Prasad of the Patna High Court declared that even calls to violence or murder others was protected by the guarantee of free speech.
Two cases in the early 1950s that was published in the law journals as Brij Bhushan versus the State of Delhi and Romesh Thapar versus the State of Madras ensured Nehru amended Article 19 (2) to include further curbs on the right to free speech. Today, we realise the six judges who sat together en banc in the Supreme Court of 1951 to hear these cases, unwittingly gave Parliament the reason to neutralise free speech by adding the heads of friendly relations with foreign states, public order, sovereignty, and integrity of India to neutralise free speech under Article 19 (1) (a). But the First Amendment to the U.S. Constitution had the exact opposite effect.
That religion can never unite a nation is proved by the declaration of Maharashtra chief minister Uddhav Thackeray who declared at a question-answer session held by the Loksatta of the Indian Express group on May 1 that “in some ways, Balasaheb had this streak of innocence. But I am not like that. I will not allow the BJP to succeed in its agenda of using Hindutva to grab power. I have my eyes and ears on each of their actions and strategies,” the chief minister said. Hence, the chief minister has himself admitted in public that the BJP is exploiting Hindutva by neglecting Moditva.
Religion and politics make a deadly cocktail and when you add free speech to it, this deadly cocktail turns into a mocktail.
(Olav Albuquerque holds a Ph.D. in law and is a senior journalist-cum-advocate of the Bombay High Court. He tweets at @DrOlavAlbuquer1)