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CRIMINAL APPELLATE JURISDICTION: Criminal Appeal Nos. 237-238 of 1974.

Appeal by special leave from the Judgment and Order dated 14-8-1973 of the Delhi High Court in Crl. Revision Nos. 146 and 153 of 1971.

A. K. Sen, Gobind Das, A. N. Karkhanis, Sridharan and Mrs. S. Bhandare for the Appellant.

H. S. Marwah and M. N. Shroff for the Respondent.

The Judgment of the Court was delivered by CHINNAPPA REDDY, J. Can political thesis or historical truth be so presented as to promote feelings of enmity, hatred or ill-will between different religious groups or communities, is the question which we are called upon to answer in these two criminal appeals. The appellant in the two criminal appeals is the editor, publisher and printer of a monthly magazine going by the name 'Mother India'. He wrote two articles under the captions "A tale of two communalisms" and "Lingering disgrace of history". On complaints filed by the Superintendent of Police, Delhi, under section 153-A of the Indian Penal Code, he was convicted in respect of each of these articles in separate cases and sentenced in each case to suffer simple imprisonment for a period of four months and to pay a fine of Rs. 1000/- by the Additional Chief Judicial Magistrate, Delhi. On appeal the learned Sessions Judge, Delhi, confirmed the conviction in both the cases but reduced the sentence of fine to Rs. 500/- in each case. This was confirmed by the High Court. The appellant has preferred these appeals by Special Leave of this Court.

Shri A. K. Sen, learned counsel for the appellant submitted that if the articles were read as a whole it would be patent that the article "A tale of two communalisms" was no more than a political thesis and the second article "Lingering disgrace of history" was no more than a protest based on historical truths against the naming of roads in Delhi after Moghul emperors. He contended that neither article contained any attack on any religion and, therefore, there was no question of promoting and attempting to promote feelings of enmity, hatred or ill-will between different religious groups on grounds or religion. The convictions under section 153-A were, therefore, wrong, he submitted.

The first of the articles "A tale of two communalisms"

does begin as a sort of political thesis. According to the author "communalism is an instrument of political minorities". His thesis is that militant minorities thrive on communalism. If he wanted to develop his thesis on those lines no-one could object. But, he referred to Muslims generally as "a basically violent race" and went on to say "communalism is, therefore, an instrument of a minority with a racial tradition of rape, loot, violence and murder as is found in India with a Muslim population of 12.7%. In Pakistan the Hindu minority is 6.6% but because its racial tradition is different it does not indulge in communal riots.... Three essentials are necessary for violent communalism. The community must be a minority, the minority must be sizable and the minority must have a tradition of murder and violence... We find these three essentials in the Muslim community of India". He then stated in the article that in Pakistan and particularly in East Bengal peace loving and terror struck Hindu minority was being eliminated by periodical killing and conversions on a mass scale. "Young Hindu males were compelled to undergo vasectomy operations, young and pretty Hindu girls became the victims of Islamic beds of lust". It is then said "It is not in the nature and religion of the Hindu of India to be intolerant and blood-thirsty like the followers of Islam". According to him the only answer to the problem of communalism was to declare India a Hindu State. In our opinion there cannot be the slightest doubt that the article is not even thinly veiled as a political thesis; it is an undisguised attempt to promote feelings of enmity, hatred and ill-will between the Hindu and the Muslim communities. It is designed to fan the sparks of ill-will and hatred on ground of community. The reference to the alleged Muslim tradition of rape, loot, violence and murder and the alleged terror struck into the hearts of Hindu minority in a neighbouring country by periodical killings, in the context of his thesis that communalism is the instrument of a militant minority can lead to no other inference.

Whether communalism is the weapon of an aggressive and militant minority as suggested by the accused or the "shield of a nervous and fearful minority", the problem of communalism is not solved by castigating the members of the minority community as intolerant and blood thirsty and a community with a tradition of rape, loot, violence and murder. Whether the Moghuls were rapists and murderers or not and whether the Delhi roads should be named after them or not it was wrong to present the Moghuls as the ancestors of today's Muslims and to villify the Muslims as the proud descendants of the "foul" Moghuls. We are convinced that both the articles do promote feelings of enmity, hatred and ill-will between the Hindu and Muslim communities on grounds of community and this cannot be done in the guise of political thesis or historical truth. The appeals are dismissed.