October 13, 2001


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Dilip D'Souza

SIMI-larly, Let's Ban Partiality

Just read Arvind Lavakare's smooth knockout of those who question the ban on SIMI. (That's the Students' Islamic Movement of India, though none of those men look much like students to me.) Thanks to AL, we now know the explicit reasons our mighty government has banned SIMI. So I'm sure he won't mind if I use his expertly gathered material -- why gather it myself, I say, when it's been done? -- to make a few points of my own.

AL says the government is "empowered" to issue the ban order by the Unlawful Activities (Prevention) Act of 1967. He also informs us helpfully what an "unlawful association" -- like SIMI -- is, as defined by section 2 of that act. One definition he quotes of such an association: a group that "encourages or aids persons to undertake any [activity which is punishable under sections 153-A and 153-B of the Indian Penal Code] ... or [whose] members undertake any such activity". That is, if a group's members violate these sections of the IPC, that group can be declared an "unlawful association" under this act.

To make things even clearer, AL tells us, helpfully still, that "section 153-B [of the IPC] makes it an offence if anyone makes or publishes any imputation that any class of persons cannot bear true faith and allegiance to the Constitution of India". That is, among other things, you cannot call people traitors to the country because they follow a particular faith.

Having helpfully given us all this information, AL then wonders why there is such a fuss about the ban on SIMI. After all, it has quite openly undertaken activities that section 153-B says are unlawful. He also dismisses any call for corresponding bans on such bodies as the Bajrang Dal and the Shiv Sena. "What is unlawful," AL asks plaintively, "if Bal Thackeray's Sainiks demand that Muslims owing allegiance to Pakistan should leave India?"


Only, Bal Thackeray is on record as having said things that are just slightly different, and just slightly less innocuous than that "demand". Here are two such -- just two of many. These are excerpts from Thackeray's own editorials in his journal Saamna immediately before and during the riots in Bombay in December 1992.

December 5, 1992: Which is this minority community? The Muslim traitors who partitioned the country and haven't allowed us to breathe ever since.

December 9, 1992: Pakistan need not cross the borders and attack India. 250 million Muslims in India will stage an armed insurrection. They form one of Pakistan's seven atomic bombs.

Do you believe these violate section 153-B of the IPC?

Let me remind you what AL helpfully told us: Section 153-B "makes it an offence [to impute] that any class of persons cannot bear true faith and allegiance to the Constitution of India". What's more, as AL also helpfully told us, "an offence under section 153-B by an association makes it liable to be declared an 'unlawful association', with imprisonment for up to five years".

Did Thackeray's writings violate section 153-B?

Not sure? OK, let me spell it out. If you refer to "this minority community" as "traitors", if you say that all Muslims in India will "stage an armed insurrection" against India, that they are collectively one of Pakistan's "atomic bombs", have you then implied that Muslims "cannot bear true faith and allegiance to the Constitution of India"? That they are, in other words, traitors to India?

Still not sure? Well, consider what four of India's best-known and most respected legal scholars said about this very issue, about these very writings:

Fali S Nariman: [Sections 153-A and 153-B of the IPC] remain on our statute books to give assurance to the people of India that promoting enmity between different groups on grounds of religion will not be tolerated and will be visited with penal sanctions ... It is this assurance that was denied to the people of Maharashtra ... by the High Court of Bombay [when it refused in 1994 to direct the government to prosecute Thackeray for these writings].

The late H M Seervai: A clearer violation of sections 153-A and 153-B is difficult to imagine.

India's Attorney General Soli J Sorabjee: It is extremely unfortunate that the judiciary has not intervened in this case where the law has been openly flouted and communal hatred spread by Bal Thackeray through his mouthpiece Saamna.

Nani A Palkhiwala: The high court was in error in not [compelling] the government to sanction a criminal prosecution under section 153-A and section 153-B of the IPC, because there is clearly a prima facie case that the sections have been violated.

(All quoted in Communalism Combat, January 1995: also see my columns Years That Have Passed and Story of a Petition.)

Frankly, I don't even believe I need to quote these men's opinions. I find it difficult to imagine that anyone -- you, for instance, or AL -- would read both section 153-B and Thackeray's writings and still believe he did not violate that section. But still, taking just one of these scholars, H M Seervai believed that by writing these editorials, Bal Thackeray undertook activities that section 153-B defines as unlawful. Why then was Thackeray not imprisoned "for up to five years"? Why did he not attract the attention of section 2 of the Unlawful Activities (Prevention) Act, helpfully explained to us by AL?

After all, it's not as if our government is unaware of, or reluctant to use, the Unlawful Activities (Prevention) Act. It has just used that very act against SIMI.

Let me make a couple of things clear here. First, I don't like bans. They achieve nothing except underground sympathy and support for the banned, undermining the ostensible reason for the ban in the first place. Second, I don't like sections 153-A and 153-B of the IPC. I think they constrict free speech, which is a dangerous thing to allow a government to do. You don't fight hate speech with official bans. You fight it by publicly and repeatedly demonstrating the dangers of such speech and treating those who indulge in it as the outcasts they must be.

Yet, when people argue like this, helpful men like AL choose the easy route and pretend that they must be defending such bodies as SIMI. Indeed, AL aims his gun at the "secular wolves" and fires with skill and verve, not forgetting helpfulness. But he quite deliberately misses the point. Which is that nobody would object to the ban on SIMI if the government showed a scrupulous fairness in applying these acts and bans. (After all, nobody wants thugs roaming free -- yes, believe me, not even those "secular" journalists that make AL "puke"). If the government was indeed that fair, going by AL's own explanation of the ban on SIMI the government would clearly also have to ban the Sena.

Instead, that party actually is part of this government. Think of that for a moment. How much revulsion would AL feel, would I feel, would you reading this feel, if A B Vajpayee appointed members of SIMI as ministers? Yet members of the Shiv Sena are precisely that: ministers in Prime Minister Atal Bihari Vajpayee's Cabinet.

And since there is this transparent, brazen partiality in the application of the laws of our land, since helpful men like AL quote so extensively to actually defend such partiality, you will have to forgive those of us who believe this ban on SIMI had nothing to do with SIMI's criminal activities. It had everything to do with simple political expediency.

Political expediency has its problems any time. But these days it's worth remembering: it is just this kind of partiality that breeds the terror that we are so anxious to fight. Or, to put it another way, nobody will take our protestations about terrorism seriously -- which is just what we are seeing -- until we fight it within our country. Fairly and firmly.

I look at it this way. I have no particular liking for Dubya Bush or his politics or his policies, both before and after September 11. But I feel absolutely sure of one thing. Let's say a prominent American politician wrote these sentences in an article:

50 million blacks in the United States will stage an armed insurrection. They form one of Mexico's atomic bombs.

I don't believe he, or his party, would be rewarded with senior posts in Dubya's Cabinet.

Dilip D'Souza

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