Tuesday, February 28, 2017

Nathuram Godse’s right to write vs public order : By Madabhushi Sridhar

The Hans India‎‎‎: New Delhi: Tuesday, February 28, 2017.
An RTI request for a copy of the statement of Nathuram Godse, the killer of Mahatma Gandhi, made during the trial has necessitated examining whether disclosure would cause disturbance to public order; can there be a reasonable restriction on their freedom of speech and expression, and whether this more than 20-year-old information could be disclosed under Section 8(1)(a) of RTI Act? 
Nathuram Godse and Gopal Godse wrote extensively explaining reasons for murder. The statement of Nathuram during the trial was proscribed by the government. Gopal Godse’s book on (Gandhi Assassination and I) was ordered to be forfeited.
After the prosecution, the judge could give the accused under Section 313 of Code of Criminal Procedure an opportunity to explain without oath or punishment for refusal to answer etc. Nathuram used this opportunity to make a lengthy statement for five hours which was main content of the book by his brother and another accused Gopal Godse, who challenged the order of forfeiture in Gopal Vinayak Godse vs The Union of India & Ors decided on 6 August, 1969 (AIR 1971 Bom 56).
A three-judge bench gave the factual matrix:
On 30th January, 1948, Mahatma Gandhi was assassinated in Delhi. .. Nathuram, who pleaded guilty to the charge of murder, was sentenced to death along with another accused, Narayan Apte. Dr VD Savarkar, one of the co-accused, was acquitted by the trial court, while Gopal Godse and the other four accused were sentenced to imprisonment for life.
In appeal, the Punjab High Court acquitted two more – Dr Parchure and Shankar Kistayya – confirming sentence of other five. Nathuram had appealed against his conviction on the charge of conspiracy only. He neither challenged his conviction for murder nor the sentence of death passed on him. The statement made by him in trial court was proscribed by the Government of India.  Nathuram and Apte were executed in Ambala Jail on the 15th November, 1949. (Paras 4 to 7)
The Bench considered challenge to the constitutionality of Section 99A, which was inserted into the Code of Criminal Procedure, and held:  There is no doubt that the freedom of speech and expression includes freedom of the press and circulation but the right, as stated in Article 19(2), cannot affect the operation of any existing law in so far as such law imposes reasonable restrictions on that right, in the interests, inter alia, of public order.
Similarly assuming that the fundamental right of the petitioner under Article 19(1)(f) is violated as he cannot, on account of the order of forfeiture, acquire or hold a copy of the book that right, as provided in Article 19(5) cannot affect the operation of any existing law in so far it imposes reasonable restrictions in the interests of the general public, and the right of the publisher to carry on his business is subject, as provided in Article 19(6) or that the restrictions on the right of free speech and expression are in the interests of public order and those on the other rights are in the interests of the general public is undeniable  (Para 38).
The Bench upheld its constitutional validity saying it imposed reasonable restriction through law on the freedom of expression and examined whether writings of Godse will provoke enmity between Hindus and Muslims, a crime under Section 153A of IPC, on which ground book could be forfeited under this law.  Next question was about the validity of forfeiture order.
The Bench analysed the contents of the book: (i) the theme; (ii) the nature of the language – its drive and its power; (iii) the copious references to historical facts, to the abiding principles of Hindu philosophy and to mythological tales; (iv) the rather free use of similies, metaphors, innuendoes and the other figures of speech which not only give vitality to the author's prose but lend to it a sure beauty of form; and (v) the moral of the story which the author, perhaps, wants his readers to draw or which the readers could draw for themselves after going through the book with a certain degree of care and concentration.
The Bench said: “but we find ourselves unable to agree that it contains matter which "promotes feelings of enmity and hatred between Hindus and Muslims in India." We are clearly of the view that it does not contain such matter, not certainly such matter "the publication of which is punishable under Section 153A of the Indian Penal Code." We are also satisfied, if it be relevant', that the book does not contain any matter which is calculated to bring about enmity or hatred between Hindus and Muslims in India.
On a fair reading of the book, that is not the intention of the writer either, though we must hasten to add that the intention of the writer is not relevant if the writing is otherwise of a nature described in Section 153A.” The central conception is that Gandhiji's murder was not the act of a madman, that it was a political assassination and that the genesis of the murder was the policy persistently pursued by Gandhiji that Muslims must be appeased at all costs.
The country was partitioned as a measure of concession to the Muslims and even after the holocaust which occurred in the wake of partition, Gandhiji pursued the policy of appeasing the Muslims, steadfastly. Pakistani tribesmen invaded Kashmir and therefore the Government of India decided to withhold the payment of cash-balances to Pakistan.
Gandhiji however went on a fast on the 13th January 1948, partially to persuade the government to pay the amount and he broke his fast on the 18th, after the government had declared on the 16th that it had decided to honour its obligation to pay the sum of Rs 55 crore to Pakistan.
Madanlal Pahva exploded a bomb in Gandhiji's prayer meeting on the 20th and Nathuram Godse assassinated Gandhiji on the 30th. The best part of the book deals with these facts and events, the theme being that Gandhiji was assassinated for political, not personal, motives by those who loved their motherland as much as anyone else did.
The theme, in other words, is that Gandhiji's life is the price which was paid for the decision that the country be partitioned and the subsequent decision to pay the cash-balances to Pakistan in the face of its aggression on Kashmir. Though significant, this was not the sole theme of book. The Bench did not accept the argument that the theme of the book is that Mulims are essentially aliens and Hindus must arm themselves to meet their unjust claims.
Nathuram as Arjun?
The AG contended that the object of the author in glorifying Nathuram is to show that he and Gandhiji were on the same pedestal, that in fact Nathuram was on a higher pedestal, that he was like Arjun fighting evil at the call of duty and that his doubts resolved and his mind became composed as Arjun's became after listening to the discourse of Srikrishna. Nathuram, says the author, loved his motherland no less than anyone else and he committed the murder out of that love.
The Bench refused to take inference which the learned Advocate General wants HC to draw as rather farfetched. It held: In our opinion, such an inference would require a dissection far too meticulous to be within the reasonable bounds of a common reader. What a common reader would feel about the theme is that Nathuram committed the murder of Gandhiji, not out of any personal motives but because he felt that the country was partitioned on account of Gandhiji's policy of appeasement and the partition had caused untold sufferings. (Para 269)
Ill-effects on common men
Rejecting the contention of AG that the book inflames the feelings of Hindus against the Muslims by telling them that the Muslims are being pampered by the government and that the over-all effect of the book on the common man will be that Gandhiji was a hard-hearted monster who was concerned with the good of Muslims only…. Bench said: “But, frankly, the total effect of the book would not be to inflame communal passions”.
(Para 280) Forfeiture order was rejected as it violated Article 19(1)(a) of author and (g) of publisher.
Thus restriction under Section 8(1)(a) of RTI Act, cannot be invoked. (Based on decision dated 16.2.2017 in CIC/SH/A/2015/900266-SA in Ashutosh Bansal v. PIO, National Archives of India)