TWO
The Case of Sita Ram Goel

IN THE COURT OF SH. S. K. KAUSHIK: ADDL.
CHMF MET'ROPOUTAN MAGISTRATE: DEUH

State Vs.

Sita Ram etc.
FIR No. 72/86
P.S. Darya Ganj
U/S 153A/295A IPC

ORDER

This order shall dispose of the question of charge in this case. The State has sought prosecution of accused Sita Ram Goel as publisher and Smt. Ram Kali as printer of a book published under the name of 'The Dead Hand of Islam' written by foreign author Colin Main, u/s 153A and 295A IPC, on the ground that the book contains highly objectionable and sacrilegious material/references at page from 2 to 15 which tend to hurt the religious sentiments of Muslim community and may promote disaffection and hatred between Hindus and Muslims.

2. The Ld. defence counsel Sh. Alok Kumar contended that the charge against the accused persons is groundless because it is not the opinion of the accused persons which is contained in the book; that the book was written by a foreign author of Australia; that even the author of the book has not given his opinion but it is the opinion of several eminent authors compiled by Colin Main in form of a booklet from the work of eminent authors and the Quran. The Ld. defence counsel also contended that the book is in English and contains as many as ninety references and even a layman after going through the book cannot hold the publisher or printer as responsible for creating any hatred, ill will etc. against Muslims. The defence counsel also submitted that the charge against the accused persons in view of the case law on the subject is totally groundless. He referred to the following authorities in support of his contention:

3. Now it is to be seen as to what law has been laid in the authorities relied upon by the Ld. defence counsel. In AIR 1927 All. 649 it has been held at page 652 that it must of course be recognized that in countries where there is religious freedom a certain latitude must of necessity be conceded in respect of the free expression of religious opinions together with a certain measure of liberty to criticise the religious beliefs of others, but it is contrary to all reason to imagine that liberty to criticise includes a license to resort to the vile and abusive language.

4. In AIR 1939 Rangoon 649 it was held at page 200 that: u/s 295A, however, the prosecution must prove more than u/s 298 IPC, they must show insult for the sake of insulting and with an intention which springs from malice and malice alone. To a charge under this section, therefore, it would be a defence to say that I had no malicious intention towards a class, but I did intend to wound or shock the feelings of an individual so that attention might, however rudely, be called to the reform which I had in view.

5. In AIR 1943 Patna 382 it his been held at page 385 that:
the essence of an offence u/s 153A, is malicious intention. I do not think this section was ever intended to apply to the case of the honest agitator, whose primary object is to secure redress of certain wrongs, rules or fancies, and who is not actuated by the base mentality of a mere mischief monger. If the writer is expressing views which he holds only, however wrong they may be, and has no malicious intention, I do not think he can be brought within the mischief of this section.

6. In 1957 SCR 860, the question for consideration by the Supreme Court was whether Section 295A IPC is ultra vires and unconstitutional. Das CJ., while holding Section 295A as constitutional held at page 867 as under:-

Section 295A does not penalise any and every act of insult to or attempt to insult the religion or the religious beliefs of a class of citizens but it penalises only those acts of insults to or those varieties of attempts to insult the religion or the religious beliefs of a class of citizens which are perpetrated with the deliberate and malicious intention of outraging the religious feelings of that class. Insults to religion offered unwittingly or carelessly or without any deliberate or malicious intention of outraging the religious feelings of that class do not come within the section. It only punishes the aggravated form of insult to religion when it is perpetrated with the deliberate and malicious intention of outraging the religious feelings of that class.

7. In AIR 1964 Madras 258, the matter for consideration before the court were three articles published in the paper 'Nathikam' on 16.12.1960, 6.1.1961 and 13.1.1961. The first article dealt with the punishment of stoning to death prescribed in Koran to persons found guilty of adultery. The second article was about the punishment prescribed in Koran for theft. The court did not consider the third article as it found it unnecessary for the purpose. In this case, the court laid down the following law while discussing Section 295A:

'The right of freedom of speech and expression guaranteed under Art. 19 (1) (a) of the Constitution will no doubt enable a citizen to criticise the religion and the religious beliefs of a class of persons. Article 25 of the Constitution confers a right on all persons to freedom of conscience and a right freely to profess, practice, propagate religion subject to certain conditions and a person is entitled to express and propagate his views so long as he does not affect the public order, morality and health or offend any of the provisions of the Constitution or laws of the land.'

8. In AIR 1971 Bombay 56, the matter for consideration before the court was whether the book called "Gandhi Hatya Ani Mee" (Gandhi-assassination and I) written by Gopal Vinayak Godse was liable to be forfeited because it contained objectionable material. The court while holding that this book did not contain anything objectionable, laid down the following principles in para 64 of the judgement:

While inquiring whether such a charge can be sustained on the data disclosed in the order of forfeiture, namely, the offending passages read in the context of the book as a whole, it is important to remember that: (1) under Section 153A it is not necessary to prove that as a result of the objectionable matter, enemity or hatred was in fact caused between the different classes. (2) intention to promote enmity or hatred, apart from what appears from the writing itself, is not a necessary ingredient of the offence. It is enough to show that the language of the writing is of a nature calculated to promote feelings of enmity or hatred, for a person must be presumed to intend the natural consequences of his act. (3) The matter charged as being within the mischief of Section 153A must be read as a whole. One cannot rely on stray, isolated passages for proving the charge nor indeed can one take a sentence here and a sentence there and connect them by a meticulous process of inferential reasoning. (4) For judging what are the natural or probable consequences of the writing, it is permissible to take into consideration the class of readers for whom the book is primarily meant as also the state of feelings between the different classes or communities at the relevant time. (5) If the writing is calculated to promote feelings of enmity or hatred, it is no defence to a charge under Sections 153A that the writing contains a truthful account of past events or is otherwise supported by good authority. If a writer is disloyal to history it might be easier to prove that history was distorted in order to achieve a particular end as e.g. to promote feelings of enmity or hatred between different classes or communities. But adherence to the strict path of history is not by itself a complete defence to a charge under Section 153A. In fact, greater the truth, greater the impact of the writing on the minds of its readers, if the writing is otherwise calculated to produce mischief.

Ld. defence counsel also referred to para 253 of the judgement which reads as under:-

We have a fair acquaintance with the Marathi language but we must frankly confess that many a passage had to be read with more than ordinary care in order to appreciate why it is said to be of an objectionable nature. A common reader has, we suppose, neither the leisure nor the learning to digest the wealth of words which the book contains. He shall have to resurrect some stray incendiary material.

9. In the case reported as 1971 Cr. LJ 1973, the matter for consideration before the court was whether the book entitled "Samman Ke liye dharm Parivartan Karen" contained objectionable material causing insult to Hinduism or to promote disharmony and hatred between different castes so as to be punishable u/s 153A or u/s 295A IPC. It was contended before the court that this book promoted hatred between Sudras and Harijans on the one hand and members of the higher Hindu castes on the other hand. The court after considering the objectionable passages of the book held that a rational criticism of religious tenets, couched in restrained language, cannot amount to an offence either u/s 153A or Section 295A IPC. The court did not find anything objectionable in the passages which stated that the Hindu religion is blemished; that Hindus lack sympathy, equality and independence; that in Hinduism there is no room for feeling of humanity and that in Hinduism progress for the individual is impossible. The court also did not find anything objectionable in passages 13 to 19 because they commented adversely on Hindu scriptures viz, the Vedas and the Bhagvad Geeta. In this book the author asserted that the hymns of Vedas were composed by hundreds of people who were undeveloped and uncultivated. The court did not find it objectionable because this criticism was in the context of refuting the orthodox view that the Vedas are of divine origin. The court also held that there was nothing to take offence if the author of the book cited a certain Shabarswami as saying that the persons who composed the Vedas were fools or mad men. Regarding the comments on the Geeta in some of the passage in the book describing it as a 'song of shepherds' or as a 'political book' the court held that these comments were innocuous. The court also did not find anything objectionable in the book because it referred to Hanuman as unchaste. The court, therefore, held that after reading the book as a whole and bearing in mind its avowed purpose, none of the passages complained of could be said to be punishable u/s 153A or 295A IPC.

10. In the case reported as 1980 CrLJ 448, the matter under consideration before the court was whether the book entitled "Munaqib-e-Ahle Bait"1 written by Maulana Azizul Haq Kusar, which criticised the role of Amir Moavia who was held in high esteem by the Sunni Muslims, was likely to hurt the feelings of Sunni Muslims. The court held that:-

The criminality u/s 153A of the Penal Code does not attach to the things said or done but to the manner in which it is said or done. If the words spoken or written are couched in temperate, dignified and mild language and do not have the tendency to insult the feelings or the deepest religious convictions of any section of the people, penal consequences do not follow.

11. In the case reported as 1983 CrLJ 1446, the matter for consideration before the court was whether the two articles published in the Marathi Weekly known as 'SHREE' were containing objectionable material so as to attract Section 153A IPC. In these two articles the author tried to show that in pre-Islamic times, the ancient Indian culture and Hindu religion were in vogue in Arabia and that the Islamic religion, culture and art were greatly influenced by the Indian culture and religion. Their Lordships after going through the articles found nothing objectionable and held that:-

It is true that sometimes in a given case even a truthful account may come within the mischief of S-153A of the Penal Code. But, this will be too broad a proposition. Different considerations will prevail when we are to consider a scholarly article on history and religion based upon research with the help of a number of reference books. It will be very difficult for the State to contend that a narration of history would promote violence, enmity or hatred. If such a contention is accepted a day will come when that part of history which is unpalatable to a particular religion will have to be kept in cold storage on the pretext that the publication of such history would constitute an offence punishable under Sec. 153A of the Penal Code. The scope of S-153A cannot be enlarged to such an extent with a view to thwart history. For obvious reasons, history and historical events cannot be allowed to be looked as a secret on a specious plea that if the history is made known to a person who is interested to know the history, there is likelihood of someone else being hurt. Similarly, an article containing a historical research cannot be allowed to be thwarted on such a plea that the publication of such a material would be hit by S. 153A. Otherwise, the position will be very precarious. A nation will have to forget its own history and in due course the nation will have no history at all. This result cannot be said to have been intended by the Legislature when S. 153A. of the Penal Code and S. 95 of the CRPC were enacted. If anybody intends to extinguish the history (by prohibiting its publication) of the nation on the pretext of taking action under the above sections, his act will have to be treated as malafide one.

12. In 1985 CrLJ 797, the matter before Patna High Court for consideration was whether the revised edition of the book "Vishwa Itihhas"2 in Hindi written as a Text Book for Inter class of Bhagalpur University and whether the book "Madhya Kalin Arab"3 were liable for forfeiture u/s 295A IPC. The author of "Vishwa Itihhas" in writing about Islam religion had relied on the authoritative Historical works like the "Outline of History" by H.G. Wells, the "Muhamad at Madina" by W.M.G. Watt and the "Middle East" by S.N. Fisher etc. In discussing the Muhammadan religion he had used his dispassionate expertise as a teacher of history and in fact had praised Prophet Hazrat Mohammad when there was occasion to do so. The court did not find anything objectionable in the book titled as "Vishwa Itihhas" because the views expressed in the offending portion of the book were not his own. Rather the author disagreed with the critical assessment and according to his own views Mohammad Sahib was not only the reformer but also a statesman. However, the court held that the offensive paragraphs of the book "Madhya Kalin Arab" were offensive in the extreme because the author projected the personal and private life of the Prophet in his own personal assessment in terms patently derogatory and denigratory. The court also held that the offending publication is to be viewed as a whole and the intent of the author has to be gathered from the broader prospective and not merely from a few solitary lines or quotations.

13. In 1955 (3) Supreme Court Cases, 214, the appellants were convicted under Sec. 124A and 153A IPC, for raising following slogans, on 31.10.83 the day when Mrs. Indira Gandhi was assassinated, in a crowded place in front of Neelam Cinema in Chandigarh:

(a) KHALISTAN ZINDABAD
(b) RAJ KAREGA KHALSA, and
(c) HINDUAN NUU PUNJAB CHON KHAD KE CHHADANGE, HUN MAUKA AYA HAI RAJ KAYAM KARAN DA.4

Regarding the charge under Sec. 124A IPC, it was held that the casual raising of slogans once or twice by two individuals alone cannot be said to be aimed at exciting or attempting to excite hatred or disaffection towards the government. Regarding the offence under Sec. 153A IPC it was held:-

"In our opinion only where the written or spoken words have the tendency or intention of creating public disorder or disturbance of law and order or affect public tranquility, that the law needs to step in to prevent such an activity. The facts and circumstances of this case unmistakenly show that there was no disturbance or semblance of disturbance of law and order or of public order or peace and tranquillity in the area from where the appellants were apprehended while raising slogans on account of the activities of the appellants. The intention to cause disorder or incite people to violence is the sine qua non of the offence under Section 153A IPC and the prosecution has to prove the existence of mens rea in order to succeed. In this case, the prosecution has not been able to establish any mens rea on the part of the appellants, as envisaged by the provisions of Section 153A IPC, by their raising casually the three slogans a couple of times. The offence under Section 153A IPC is, therefore not, made out."

Their Lorships also observed in para 12 of the judgement:

The police officials exhibited lack of maturity and more of sensitivity in arresting the appellants for raising the slogans which arrest - and not the casual raising of one or two slogans - could have created a law and order situation, keeping in view the tense situation prevailing on the date of assassination of Smt. Indira Gandhi. In situations like this, oversensitivity sometimes is counter-productive and can result in inviting trouble.

14. In 1995 CrLJ 1316, the matter under consideration was, whether the editorials published in the newspaper 'Samana' after riots took place in Bombay, as an aftermath of demolition of Babri Masjid contained objectionable material so as to attract provisions of Section 153A and 153B IPC. The petitioner moved Bombay High Court for a writ of Mandamus to the State to register cases u/s 153A and 153B IPC. Some of the offending portions of the editorials under consideration before the court were as under:-

i) "Samana 2nd December 1992.
Municipal Deputy Commissioner Mr. Khairnar risked his life to use bulldozer in Bhendi Bazar which has become a heaven of Pakistani infiltrators and anti-national Muslims, Moulvis and Mullahs have corrupted Bhendi Bazar. The position of treachery (anti-nationalism) is flowing through every vein (lane) of Bhendi Bazar. Is Bhendi Bazar a part of India (let alone Bombay) at all?"

ii) "And which is this minority community? The Muslim traitors who have partitioned this country and have not even allowed us to breathe ever since then."

iii) "Crush the traitors.
Muslims should draw a lesson from this fact (the demolition of the Babri Masjid) otherwise they will meet the same fate as the Babri Masjid. The 'Mini Pakistan' of Bombay inhabited by Muslims.....
Those Muslims who are indulging in the act of violence on the streets and are desecrating deities and temples are traitors. They have no religion, no country, no God, no culture."

iv) "Streams of treason and poison have been flowing through the cities and Mohallas of this country. These Mohallas are inhabited by fanatical Muslims. They are loyal to Pakistan. Riots occur only in those cities and Mohallas with a growing Muslim population. It is clear from this fact that the root cause of riots lies in the Muslim community and its attitude. There are 3%. Muslims spread all over Delhi. But they are concentrated in Old Delhi in areas surrounding Jama Masjid. Therefore, riots occur in this area. They also take place in Bhendi Bazar. Musafirkhana, Bhiwandi, Malagaon and Muslim majority areas of Bhopal. Riots break out wherever Muslims enjoy domination. They stop as soon as the Muslims are at the receiving end. A similar thing is happening today. Muslims revolt in their own areas. They beat Hindus, demolish temples and attack the police. The Government is appeasing these traitors. It is learnt that Pakistan has manufactured seven bombs. But the bomb that has been made in India with the blessings of Pakistan is more dangerous. Now Pakistan need not cross the borders for launching an attack on India. Twenty-five crore Muslims loyal to Pakistan will stage an insurrection. One of those seven bombs made by Pakistan lies hidden in Hindustan."

(v) "The fanatical traitors have launched an ugly dance of death. Loyal citizens of India have sacrificed their lives in this fire which has been spreading fast. In the Mohallas inhabited by fanatics which we call 'Mini Pakistan' were the centres where the cruelty and treachery of traitors caused havoc."

(vi) "How to solve the question? The country was partitioned on 15th August 1947 on the basis of religion. That part of the country which has come to be known as Hindustan is the country of Hindus which should be conceded by all. No objections need be raised about the presence of Muslims, Sikhs, Christians and people of other faiths. But if they indulge in- the name of religion in anti-national activities, such activities should be completely defeated. Muslims have been able to hold Hindus to ransom because the Central Govt. has not adopted a firm policy."

(vii) "The areas where the fires of riots are still smouldering are Deonar, Govandi, Nirmal Nagar, Dharavi and Behrampada. They have become heavens for traitors.

They ignited fires in Bombay and they are still itching for a fight. Is the police going to protect them? Why do V.P. Singh, Chandra Shekar and Shabana Azmi keep visiting the Mohallas of traitors? Many Hindu habitations have been reduced to ashes due to the assaults launched by anti-national Muslims."

(viii) "That midnight violence erupted in Bombay. The Muslims of Bhendi Bazar, Null Bazar, Dongri and Pydhoni, the areas which we call 'Mini Pakistan' that are determined to uproot Hindustan took out their weapons.
Stop the armed bands of traitors before it is too late. Hand over the 'Mini Pakistan' of Bombay to the army. Unless the rioting traitors are not on the spot, the normalcy which the police refer to would not be restored."

(ix) "The ugly and violent form of Muslim traitors was witnessed by the city yesterday. During the twenty-six year tenure of M.K. Gandhi, Muslims from Malabar to Noakhali grew progressively violent and Hindus became non-violent.
Our prophecy has come true. A Muslim whichever country he belongs to, whichever position he occupies is first a Muslim. To him his religion is the first concern. Nation is of secondary importance to him. In the last two days patriotic people have been subjected to attacks. These attacks constitute attacks on the nation."

(x) "A special column appeared in daily Samna of 9.4.1993 under the caption Question to Chief Minister, Home Minister and Police Commissioner by Shivsena Chief.

Hindus will not be crushed to death by the politics or pressure tactics and Muslims terrorism.
The killing of Hindus in Bombay is the result of inaction on your part. If you cannot stop the way in which Muslims and in your language minorities are slaughtering us then we have to follow their ways for self-defence. This is not the instigation but indignation in my mind."

15. Their Lordships held that all the above offending portions of the editorials did not contain any material so as to fall within the purview of Sections 153A and 153B of IPC because the offending paragraphs, when read in the context and as a whole, do not refer to the Muslims as a whole but only to Pakistani infiltrators and anti-national Muslims. It was also held that the article criticising the tendency of those Muslims who treat religion as first and nation as secondary does not attract the provisions of Sec. 153A and 153B.

16. The law on the subject as appearing from the above authorities is that the offending material has to be read as a whole. One cannot rely on stray, isolated passages for proving a charge nor indeed can one take a sentence here and a sentence there for forming any inferential reasoning. For judging the offending writing it is important to consider the class of readers for whom the book is primarily meant as also the state of feelings between the different classes of communities at the relevant time. If the offending material is a scholarly article of history and religion based upon research with the help of a number of reference books then such material does not come under the purview of Sec. 153A and 295A. According to the verdict of Supreme Court the intention to cause disorder or incite people to violence is the sine qua non of the offence u/s 153A IPC and the prosecution has to prove the existence of mens rea in order to succeed.

Insult to religion offered unwittingly or carelessly or without any deliberate or malicious intention to outrage the religious feelings of that class do not come within Section 295A IPC. It is also important to bear in mind the language of the book. It is also important to consider while judging the offending material as to whether the views expressed in the offending writing were of the author or somebody else whom the author is using as a reference. Lastly it is also important to bear in mind as to whether the offending portion refers to the Muslims as a whole or to anti-national Muslims. With this case law on the subject now what has to be seen is whether the accused prima facie appear to have committed the offence u/s 153A and 295A IPC.

17. The offending passage in para 4 at page 2 of the book is: "It is undemocratic; it is puritanical; it is barbarously punitive; it oppresses women; its laws are cruel to animals; it is intolerant towards other religions; it is anti-intellectual; it places restrictions upon art." These lines cannot be viewed in isolation. These lines have to be read in the context. In fact what is told in these lines is, according to the writer, what Hadith and Koran contain therein. The writer tries to prove his viewpoint in the succeeding paragraphs by referring to 'The Kuran' translated into English by Yusuf Ali, 'Islam' by J.A. Williams. 'Dictionary of Islam' by T.A. Hughes, 'The Quran' and the book 'The Life and Times of Mohamad' New York 1970. Thus it is clear that writer wants to convey about what is written in these books. These lines when read in the context, in my considered view, do not contain any offending material so as to attract Section 153A and 295A IPC.

18. The next offending writing in the book is in para 3 at page 3 running from "The Koran seems to regard sexual misdemeanours as being more reprehensible than murder. For killing another human being, one has only to make a compensation to the relatives of the person killed. These are the only references I could find in the Koran to punishment, so for most crimes we have to rely on the Hadith." This alleged offending writing is nothing but a reference to 'The Kuran' translated into English by Yusuf Ali. The other alleged offending lines are on page 4 of the book. These lines are: "The Dictionary of Islam says that stoning 'has become almost obsolete in modern times.' So this religion is becoming more repressive, not less. The victims will be happy to know that they will get full funeral rites." "So a man can have sex with one of his wives at any time, and in any way that he wants" and "As Ramon Lull said of it, 'What will their paradise be but a tavern of unwearied gorging, and a brothel of perpetual turpitude?'." I have gone through these portions at page 4 of the book. There is nothing in these lines to show that it is the opinion of the author, printer or publisher. Rather the author has given in these lines what 'The Dictionary of Islam' 'The Kuran' and one Ramon Lull say on the subject.

19. The other offending material is on age 5 which runs from the lines:

"The Muslim Religion is completely hypocritical on sexual matters and it is all in favour of the men. The mere performance of ceremony permits a man to have sex with any of his four wives in any manner and at any time.

"Also the Koran permits men to use women captured in war for their sexual amusement. They can also be bought. Mohammed himself received two slave girls as a present from the governor of Egypt. One he gave to a man called Hassan, and the other he kept for himself, and she subsequently had a son by him. The Koran allows a Moslem to have as many concubines as he wants" and "Though he placed such severe restrictions on women, Mohammed himself had as much sex as he wanted. His wife Ayesha who he married when she was 10, and he was 53 said of Mohammed: 'He loved three things, women, perfume and food, and of the first two he had his heart's desire'."

This alleged offending material in these lines on page 5 is in fact not the opinion of the author but only the reference to 'The Kuran' and 'Dictionary of Islam' by T.A. Hughes. Next under consideration is the paragraph on page 6 running from "Woman are also oppressed in other ways, and are regarded as being very much inferior beings. The Koran says that men are a degree above them and that they should be obedient to their husbands, and that for disloyalty they can be beaten." This offending portion has been taken from scripture No. 2.228 and 4.34 of 'The Quran'. Thus again it is not the opinion of the writer.

20. The other offending writing, according to prosecution is at page 7 of the book running from:

"The Islamic law says this of circumcision and clitorectomy: 'It is an obligation for men and women to do it for themselves and their children, and if they neglect it, the Imam may force them to it for it is right and necessary.'

In The Sydney Morning Herald of January 16, 1979 there was an article on clitorectomy (female circumcision) in Egypt. Nawal Alsa'adwi, the Egyptian gynaecologist and psychiatrist, was reported to have said: 'You can't separate sexual oppression from political and religious oppression.'"

I have gone through this writing appearing at page 7 of the book. This writing is not the opinion of the author but it is what has been said by author J.A. Williams in his book, 'Islam' and the article appearing in 'The Sydney Morning Herald' of January 16, 1979 which have been referred by the author in this offending portion. In my considered view there is nothing in this paragraph to attract the provisions of Section 153A and 295A IPC.

21. The next offending portion under consideration is as given on page 8 of the book from "Islam is the only religion in the world which teaches that converts can be won at the point of a sword." I have considered these lines. These lines cannot be considered in isolation from the succeeding paragraphs appearing under the heading 'Intolerance Towards Other Religions'. Whatever has been stated by the writer in these lines is with reference to scripture No. 47.4 of 'The Quran' and the book 'The Social Laws of the Quran' written by R. Roberts. Thus, it is not the opinion of the author but what has been stated on the subject in 'The Quran' and in the book referred by the author.

22. The other offending portion of the book is on page 9 which runs from "It should be remembered that the Moslems delivered an entirely unprovoked attack on many Christian countries" and "This is sometimes considered to be justified, as most people are ignorant of the nature of the religion of Arabia before Islam. The image conjured up is of hideous idols, and human sacrifices, and corrupt priesthood. This is not borne out by the facts." I have gone through these lines as well. The author has written these lines by referring to the book 'The Rise of Islam'. written by A. Bullock and the book 'The Life and Times of Mohammed' written by John Bagot Glubb. These lines when considered in the context and the reference book, in my considered view do not attract any provision of Section 153A and 295A IPC.

23. The state has also relied upon the material appearing on page 10 of the book which runs from: "Also the God concept of Islam can hardly be an improvement on paganism, as even though Allah is called 'the merciful, the beneficent', this is hardly borne out by his action in torturing all non-believers in hell for ever. A description of the Moslem hell will give some idea of the nature of the sort of god they believe in" and "The intolerance of Islam towards polytheism (the worship of more than one god) has drowned the world in blood. This was particularly the case in India. In most parts of the world the pagans found it easier to give in and become Moslems. But the Hindus were prepared to fight."

I have carefully gone through these lines. The lines running from 'Also the God……… they believe in' have to be read in the context and that context is in the succeeding paragraph given in the book about 'The Moslem Hell'. The author has described the 'Moslem Hell' by referring to scripture No. 4.56, 22.19, 37.65 to 67, 22.19, 14.17, 43.74, 43.75, 43.77 and 22.21. Thus the description of the hell is not of the author but what is appearing in 'The Quran' itself. The other offending portion which runs from 'The intolerance……… were prepared to fight' is also to be considered in the context of the succeeding paragraphs which are based on the book 'A Short History of India' by S. Wolpert. These offending lines cannot be viewed in isolation from the succeeding paragraphs and when these lines are viewed in the context, I do not find anything which may bring these lines under the purview of Section 153A and 295A IPC. In my considered view, there is nothing offensive in the writing as appearing on page 10 of the book.

24. The next writing under consideration is on page 11 which runs from "One myth that is widely believed is that Islam promoted knowledge, but this is not the case. In later centuries a high civilisation did develop in Moslem countries, but this was despite Islam, not because of it." These lines have to be read in the context of what the author has stated in the succeeding five paragraphs on page 12 of the book. In these five paragraphs, the author has referred to the book 'Mohammedanism' written by H.R. Gibb, 'The Arab' written by A. Nutting, 'The Life and Times of Mohammed' written by John Bagot Glubb and the book 'Mohammed' written by Pike & Royston. Thus, the author has not given his opinion in these lines on page 11 of the book but this is the opinion of the various authors referred by the author of these lines in the succeeding five paragraphs on page 12. In my considered view, there is nothing offensive in these lines.

25. The next paragraph under consideration is as given on page 12 and 13 of the book running from:

"The Islamic world has sunk back into ignorance again, and even in such great universities as Al-Azhar at Cairo - the largest Moslem university in the world - the Koran is the basis of education. In many schools the children learn nothing else. The Koran remains the basis of Law, and the foundation of the Moslem legal, judicial, and political system, and the guide to every aspect of life.

"Another myth about Islam is that it promoted equality. In reality Islam permitted the ultimate inequality - slavery. As Muir says of Mohammed: 'He rivetted the fetter.' 'There is no obligation whatever on a Moslem to release his slaves.' Mohammed himself had slaves - seventeen men and eleven women."

In fact, these lines are not of the author but these lines have been taken from the book 'Mohammed' written by Pike & Royston and 'The Social Laws of the Quran' written by R. Roberts. I have carefully considered these lines. In my considered view there is nothing in these lines which attracts the provision of Section 153A or 295A IPC.

26. The next offending lines are as given on page 14 of the book from: "The example of the life of Mohammed is taken, with the Koran as a guide to how life should be lived. It is therefore very important to consider his character, and acts. When I began writing this pamphlet, I did not think that I would like Mohammed. But the more I read about him the less attractive did I find him."

These lines again have to be read in the context and the context is provided by the succeeding paragraphs appearing on page 15 and 16 of the book. Here, the other offending portion of the book appearing on page 15-16 can also be considered which runs from:

"Mohammed had people killed for the most trivial reasons. A man called Kinana ibn Ali al-Huquiq, who was the leader of a Jewish tribe whose fort was captured by the Moslems, tried to conceal the fact that he had gold. When an informer told Mohammed of this he had Kinana tortured by having hot coals put on his chest till he was nearly dead, and then he was killed.

"A man called Al Nadhr, who was a teller of tales, used to say of Mohammed to his audiences: 'Are not my stories as goods as his?' For this Mohammed ordered that his head be struck off. After the battle of Bedr a man called Uqba was taken prisoner. When he was being taken away to be executed, he said to Mohammed: 'What will become of my little children.' Mohammed replied: 'Hellfire.'

"It might be thought that I am quoting from books which are hostile to Mohammed. This is not so. Only Muir's book is slightly hostile to him. All the others go out of their way to portray him in a favourable light. We have enough evidence in the Koran of Mohammed's cruel nature, in the punishments he ordered, in his descriptions of hell, and in his incitements to his followers to kill people.

"Karl Brockelmann, in his book, History of the Islamic Peoples, says that Mohammed's death was brought on by 'an excess of pleasure-taking in the harem.'

"The only thing that can be said in his favour was that he did on occasion refrain from killing people. I can't myself see that that is a particularly exceptional virtue.

"It might be wondered how a man with this sort of character could become so admired, and could attain the position he did. What is not realised is that many people of the time detested him.

"After ten years of preaching in Mecca he had acquired only 70 followers. When he secured a base at Medina, he used force to establish his religion. All the accounts that tell us of him are biased in his favour, as death or evil awaited anyone who criticised Mohammed or the Koran when Islam became the state religion of Arabia.

"It might be said that Mohammed was a man of his time. But we must judge him according to the standards of today, not those of 1200 years ago because Moslems claim that Islam is a religion for our time. Therefore it is by the ideals of this century that we should measure it, not by those of the 7th century.

"According to these standards Mohammed was merciless and fanatical. He introduced religious hatred into large parts of the world that before were tolerant on such matters. He curtailed the freedom of women. He endorsed slavery. He broke up families. He ordered cruel punishments. The world would have been, a better place if he had not succeeded in spreading his 'religion'."

When the offending lines on page 14 are considered in the context, it becomes clear that whatever the writer wants to convey in these lines is with reference to the explanation appearing in succeeding paragraphs on page 15 and 16 of the book and by referring to the books of various authors discussed in the foregoing paragraphs of the order.

27. The alleged offending portion on page 15 is nothing but a reference to the book. 'The Life and Times of Mohammed' and 'Life of Mahomed'. The author has explained that all the books except one by Muir have praised Mohammed and he has quoted these lines from the books which portray Mohammed in a favourable light. Thus, the author is not giving his opinion but he has given the opinion of various authors and the books mentioned in the foregoing paragraphs of this order. The offending portion of the page 16 is again a reference to the book 'History of Islamic People' written by Karl Brockelmann. The other book referred by author is 'The Arabs' written by A. Nutting. Thus, it is not the opinion of the author but it is opinion of Karl Brockelmann and A. Nutting. Ld. Prosecutor Sh. Vipin Sanduja submitted that the last line of the book which reads: 'The world would have been a better place if he had not succeeded in spreading his religion' is offending and attracts the provision of Section 153A and 295A IPC. I have carefully considered this submission of Ld APP Sh. Vipin Sanduja. The author has not stated in these lines that India would have been a better place if he (Prophet) had not succeeded in spreading his religion. In fact the author is talking about the world. However, the author has drawn his conclusion by referring ninety references from various books including 'The Quran'. The author has said in para 3 of page 15 of the book:

'It might be thought that I am quoting from books which are hostile to Mohammed. It is not so. Only Muir's book is slightly hostile to him. All other go out of their way to portray him in a favourable light.' In my view there is no merit in the submission of Ld. APP.

28. The above discussion shows that the alleged offending portions of the book, when read as a whole, do not lead to the inference that it promotes enmity or hatred between different classes. The nature of the writing is not of a nature calculated to promote feeling of enmity or hatred. The language of the book is mild, tempered and dignified. The words used have no power to sling or stoke communal violence, hatred, enmity, disharmony or illwill. The book is based on a number of reference books of history and religion. The conclusions drawn are not desultory. The book is meant for reading by philanthropists and elite section of the society.

It is hard to believe that the elite would rake up communal violence, after going through this book. The elite have their own way of reacting to socially sensitive issues. It is not a matter of past when the elite of our country, by and large, defended M.F. Hussain, when the latter painted nude painting of Indian Mythological deities. The only purpose of the author is to discourage, in all humility, the growing consciousness of religious identity which is leading to fundamentalist and separatist attitudes in the world.

For the foregoing reasons, I hold that the charge against the accused persons is groundless. I hereby discharge both the accused.

ANNOUNCED IN OPEN COURT
on 17 May 1997
Attached two copies

(S.K. KAUSHIK)
ACMM/Delhi
17/5/97