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Friday, September 30, 2022

What are the chances of Nupur Sharma getting convicted of hate-speech? And why it’s dangerous to prejudge?

In the previous part, we saw how the principles of blasphemy law are actually shaped and applied in Bhartiya context – in case a dispute does manage to reach the court before Islamists behead someone according to Sharia law.

What are the tests and legal conditions to be satisfied, before the court declares someone guilty of Blasphemy under section 295A.

If you’re worried about some of your speeches/expressions/memes attracting ill-attention under the category of ‘hurting religious sentiments,’ you can run a basic test yourself against those principles.

Now, let’s try to see the speech of Nupur Sharma ji from these lenses I highlighted earlier. But first…

The slippery slope of law indulging belief – at the expense of truth.

What did Nupur Sharma ji say in the clip shared by the alleged fact-checker?

She cited some things written in Quran and Hadiths, and ‘asked’ whether she should mock them? ‘Asked’, do not even equate with ‘attempt’ – which is punishable – let alone ‘really’ making some kind of obscene remark against Islam or its founder. The only insult, if it could be called that, was directed at the man opposite her. (who remains unscathed to this day, from any attention of the law or Left Liberal media eco-system.)

Everything she said, is already public knowledge. The things she said, are written in Quran and Hadiths.

Another Pakistani Journalist raised an interesting point. Is it Islamists’ case that what’s written in Sahih-Al-Bukhari is not an authentic Islamic text and she was making this up (like Salman Rushdie did)? If that’s true, then it’s frankly their problem, not anyone else’s and Islamic Scholars should debate amongst themselves and settle this question about Aisha once and for all. Not just for themselves but for everyone’s benefit as well. So that no-one could make an excuse for committing blasphemy ‘unknowingly.’ And if that’s not their case, then why the outrage?

I know I said that truth of the claims made by an accused is not a valid defense in Bhartiyacourts (travesty of justice as it may be). But the reason I’m raising this point here is this: Even if Islamists and their left liberal apologists are saying that the debate is still ongoing about Aisha’s age (it’s not my claim, I’m just referring to what left liberal alleged news websites themselves had said about it). If they are positing that the matter of age of Aisha is still undecided (or at least that part of her life about which this controversy is) and so, mere referring to it can still hurt Muslim religious sentiments, then those who are calling the shiv-lingam a mere ‘fountain’ in wuzukhana of Gyanvapi disputed structure, where namazi’s wash their hands and feet and spit, are still capable of hurting Hindu religious sentiments even if it’s not yet decided whether the structure found during the survey is actually a shiv-lingam or not.

Because I could say the same: Without knowing the truth, you are saying that my shiva is a fountain for Namazis and worthy of only their spit.

It is completely wrong assumption when certain alleged journalists post Bhabha atomic research center as a possible shiv-lingam, insinuating that Hindus can claim any site as their god, depending on its shape. No. Wrong. That shiv-lingam is found inside a mosque that was built after an anti-hindu bigot Aurangzeb demolished a famous Shiva temple there. One of the 3 most holy sites for Hindus, Kashi is taken in the same breath as Ayodhya and Mathura. Its Hindu equivalent of Mecca and Medina. If any religious symbol is there, Hindus will regard that with very very high degree of religiosity, compared to any other place. And so, as much as Abrahamics love their prophets and won’t tolerate any non-sense against their beliefs, Hindus too, will be offended in equally high measure if you mock religious symbols found in some of their own, most important Hindu religious sites.

That’s why my religious sentiments get hurt very deeply too, when you call a Shiv-lingam a fountain, and that too, put in a wuzukhana used for washing feet and spitting, inside Gyanvapi disputed structure.

It’s not necessary for my beliefs to be substantiated by your standards of truth.

Get the slippery slope here?

Because the next step would be this: Should everyone who said it, including the people who run the Gyanvapi mosque and who said it as their legal defense, be booked under section 295A?

If you say not now, then I’ll ask when? If you say later when courts decide it, then I’ll ask why not let court decide the matter for Aisha’s age as well? Why courts get to decide the matter of historicity about Bhartiya Gods but Islamic scholars get to decide about Aisha? Slightly off topic, you say? Fair enough, even if you exposed your hypocrisy and that of the constitutional provisions as well. I’ll still ask what about later? What if later it is actually established, without reasonable doubt, that it is an actual Shivlingam, by courts if necessary?

If you then say, ‘Oh, we didn’t know back then, you cannot prosecute me for saying what you yourself didn’t know for sure previously.’ But if you are going to say that, then why not extend the same courtesy to Nupur Sharma ji now? It is not her fault, if Islamists are undecided about the matter concerning aisha’s age. And if you are on the opposite side, and still insist that confusion about a historical fact does not matter and what she’s saying is still a punishable offense, then by that logic, everyone who says that the structure found inside wuzukhana is a fountain worthy of only namazis’ spit, should be booked under the same charge. Right?

What’s good for the goose should be good for the gander too.

Or in other words, Article 14 of Indian constitution. Equality before the law.

Was Nupur Sharma ji’s speech intentionally deliberate and malicious?

Now, there’s an interesting observation made by court in the case of Taslima ji.

The expression ‘deliberate and malicious” is indicative of the intention of the legislature. The conjunction ‘and’ conjoins both. It must be both deliberate and malicious i.e. deliberately malicious. If it is made knowingly, but with an intention not deliberate nor malicious, but with an intention oriented by clinching or revitalizing or striking a blow for the well being of the society or for emancipation of the women, which is necessary for the mankind, in that event, such outraging of religious feelings or insult to religion or religious belief, though may be intentional but cannot be termed deliberate and malicious even if it is not made unwittingly or carelessly. If it is inflicted in good faith by an author in his/her endeavour or object to facilitate some measure on social reform by administering such a shock to the followers of the religion, as would ensure notice being taken by any criticism so made, would not attract the mischief of Section 295A by reason of the phrase “with deliberate and malicious intention” qualifying the intention. In order to establish the ingredient of Section 295A to be applicable in a case it is to be established that the author had the requisite mens rea deliberate and malicious to outrage the religious feelings of a class of citizens of India and to insult or to attempt to insult the religion and religious beliefs of that class of citizens of India.

A bare listening of the clip by the alleged fact checker would make it clear to the most tone-deaf of the persons, and even that alleged fact checker would have to agree, that what Nupur Sharma ji was trying to convey is ‘What if?’ She was trying to highlight one and only one thing: Don’t hurt Hindus’ religious sentiments by this nonsense of Shiv-ling jokes (or worse), or calling it fountain or what not, because that candle will burn both ways. And you won’t like it when that happens.

Her intention, if anything, was to stress the fragility of hurt religious sentiments and, by senseless rioting, plus death and rape threats to her, and the recent, ghastly ISIS style terrorism, not just in Bharat but overseas as well, Islamists had proved her point 100%.

Maybe she used unsavory tone for doing this, but her intention was to maintain respect for all religions in the debate concerning what the survey found in Gyanvapi disputed structure and not extend it to only 1 religion while religious sentiments of 100 crore Hindus are taken for a ride by left liberal ecosystem and Islamists. Her intention was to bring civility back in the discourse regarding shiv-lingam in the Gyanvai disputed structure. (At least that’s what the facts available in public domains indicate to be her intention.)

She did not, randomly, went on a stage and screamed it from the top of her lungs, just to offend religious sentiments of Muslims. (Unlike what alleged fact-checker’s some of the problematic tweets indicate.) There was a certain context involved here and her intention should be judged according to that.

State’s responsibility to apply the law equally.

In that sense, (and in that sense alone, because frankly I’m disgusted by such stifling laws), the responsibility for this whole controversy falls on respective state governments too. If they’d taken firm action against those who were repeatedly hurting Hindu religious sentiments with impunity, if governments had, instead of appeasing left liberal eco system and Islamists, put the fear of law in their hearts when they mocked shiv-lingam in gyanvapi structure, Nupur Shrma ji did not have to lead by example.

After all, they’d registered FIR against the likes of Mrs. Saba Naqvi and Mr. Asaduddin Owaisi later on, didn’t they? If they’d done that earlier and explained in no uncertain terms why it’s being done, perhaps the matter wouldn’t have reached this stage.

Was the clip in social media complete speech of Nupur Sharma?

Another point to be noted here is that midway during that speech, she was muted by anchor Navika Kumar ji as she tried, perhaps, to conclude the debate. So it’s not complete speech we heard. It’s possible that Nupur Sharma ji had said something else that could’ve clarified her position better. I’m not putting the blame on Navika Kumar ji either. I’m just trying to highlight the principles on which the court would rely, which will insist that full-speech, not partial tid-bits, must be scrutinized to determine whether the offences under hate-speech laws are made out or not.

What about emancipation of women?

In any case, if Islamists are widening the scope of debate so much, by misinterpreting her remarks to call for her hanging and even beheading, then Hindus should be allowed to extend it as well, at least within legal limits to interpret her remarks in a wider context.

UCC debate has recently been a hot button topic in Bharat, right?

In February last year, there was much hue and cry for allowing a Muslim 17-year-old girl to marry 36 years old man. Another issue was about a 15 year old girl marrying an 18 year old boy. In just last December the issue came up again, (when there was another bout of outrage especially because the groom was Hindu). But it goes further, because even from 2014, Courts have ruled that for a Muslim girl, minimum age for marriage is 15 or whenever she attains puberty.

So there’s certainly a case to be made about her remarks and Muslim personal law, and how it has affected UCC. And we all know where Muslim personal law gets its authority, don’t we? And if one thing could be said about UCC, it will enable emancipation of the women.

What about ‘what’s happening in the country?’

The first piece of major violence that happened was in Kanpur on June 3. Nupur Sharma ji made that speech on 26 may. A whole week before. If people were outraged about it, the violence should’ve happened spontaneously. Like the riots after the Islamists’ burning of Sabaramti express in Godhra. But it didn’t. Furthermore, the alleged mastermind of Kanpur violence, Zafar Hayat Hashmi, has a shady NGO that was active during Anti-CAA protests that culminated in anti-Hindu riots, and he has, allegedly gotten foreign funding of almost 50 crores from gulf countries. The other guy, Nizam Qureishi was a Samajwadi Party leader. Who is allegedly linked to notorious Islamist organization PFI and possibly even banned terrorist organization SIMI.

The 1st charge sheet for the riots accuses 47 people, with pre-planned and pre-assigned roles to different people and even children. All of it at a fixed rate. 500-1000 for stone pelting, 5000 for petrol bombing.

These people obviously have a political agenda, and a nefarious one at that, and the violence allegedly incited by them certainly reeks of a conspiracy, designed to cash in remarks made by Nupur Sharma ji for their own ulterior motives, and is not a violence of some spontaneous nature triggered by her remarks.

Because there are even allegations emerging now that the actual plan of the alleged masterminds of Kanpur violence, was to capture chandreshwar mohalla.

The same could be said for every piece of violence that erupted afterward—as far as the nexus between speech and violence is concerned. No immediate and direct cause and effect.

These are all my opinions. The matter would obviously be debated by extremely well known and famous lawyers on both sides and equally capable honorable judges.

The point I wanted to highlight is this:

Courts had acquitted both Akbaruddin Owaisi and Taslima Nasreen.

And as I write this, just the other day, Delhi High Court refused a plea by communist leader Brinda Karat (whose love for Islamist rioters is known by how she rushed in to protect alleged Islamist rioters in the aftermath of Janhangirpuri riots, which itself was part of a widespread and vicious anti-Hindu violence unleashed by Islamists where they attacked peaceful Hindu processions across 10 states, just because Hindus practiced their constitutionally guaranteed freedom of religion and freedom of movement inside what Islamists and Left Liberal eco system are hell-bent to declare as ‘Muslim Areas’).

Delhi High Court refused Karat’s plea to register even an FIR against union minister Anurag Thakur and MP Parvesh Varma, regarding their speech of ‘Desh ke gaddaro ko…’, upholding trial court’s order that not only ‘due process’ – something for which she and the left-liberal eco-system and Islamists are screaming endlessly in case of ‘Bulldozer Justice’ – was not followed by Karat and co in case of Anurag Thakur and Parvesh Varma, but Delhi Police also categorically said that no cognizable offence is made out against the BJP leaders.

So this is the list of popular names currently acquitted by court from hate-speech charges.

Akbaruddin owaisi, Taslima Nasreen, Anurag Thakur and Parvesh Varma. These are big names.

Sure, the issues for which they were dragged to court might be slightly different, depending on case to case basis, I agree.

However…

What about direct insult to Shiv-ling inside Gyanvapi disputed structure?

We have one direct example of how Court has upheld the liberty of individuals in case of derogatory remarks regarding Gyanvapi issue.

Remember DU professor Ratan lal’s case? The man made such distasteful remarks against Shivlingam found in the Gyanvapi disputed structure that any sane Hindu might feel offended. Remarks which did include ‘Muslim circumcision practices.’ Some people don’t get, that defacing and destroying Hindu idols and images is one of the core reasons for Hindus’ civilizational trauma against Abrhamics. And putting that in a way the professor did? Well, let’s all be grateful the Hindu society is not as violent as Abrahmic one. But within a week, he was granted bail. Court made several remarks in its bail order:

The feeling of hurt felt by an individual cannot represent the entire group or community and any such complaint regarding hurt feeling has to be seen in its context, considering the entire spectrum of facts and circumstances.

The Indian civilisation is one of the oldest in the world and is known to be tolerant and accepting of all religions, the presence or absence of intention to create animosity by words was subjective in nature as was the perception of the recipient who reads or hears a statement.

India is a country of more than 130 crore people and any subject can have 130 crore different views and perceptions, it said.

The court noted that the social media post of Lal, who teaches History at the Hindu College, may appear to be a failed attempt at satire regarding a controversial subject that has backfired, resulting in the FlR.

For another person, the same post can appear to be shameful but may not incite the feeling of hatred towards another community. Similarly, different persons may consider the post differently without being enraged and may in fact feel sorry for the accused to have made an unwanted comment without considering the repercussions, the court said.

It noted that it was true that the accused did an act that was avoidable considering the sensibilities of persons around him, and the public at large.

However, the post, though reprehensible, does not indicate an attempt to promote hatred between communities, the court said.

So there it is, failed attempt at satire for Hindu beliefs regarding a matter that remains undecided to this day; remarks which were definitely “avoidable and reprehensible” even in the eyes of court, however, do not indicate ‘intention’ to promote hatred between communities.

I’m not going into the religious debate, or theology, but surely, at least from legal standpoint, Court cannot treat one of the most important icons of Hindu religion as lesser than those of Muslims.

Because, again, Hindus have 33 ‘crore’ deities (as the popular myth goes, because 33 koti actually means a different thing in this context) but Shiva is considered by many to be one among the 3 most important ones. Brahma, Vishnu, Mahesh. We’re not talking about some random deity from other 33 ‘crores’ (who all, again, even if numbering in crores, deserve their respect nonetheless). Shaivite sects in Bharat had been equally influential as Vaishnaivite ones. Moreover, the place which we’re talking about, Kashi, remains a site equivalent to mecca and medina for Hindus. Kashi Vishwanath is one of the 12 jyotirlings.

So surely the honor of my Shiva at Kashi Vishwanath remains, if not more than the honor of founder of Muslim religion, than at least equal, in an Bhartiyacourt of law.

If by any stretch of chance, Nupur Sharma asserting that fact becomes criminal in law and she has to forego her life and liberty because of it while Ratam Lal gets to enjoys his unhindered, then there can’t be a bigger travesty of justice in India.

At any rate, the above precedents should make one thing clear above all else:

The bar for punishable speech, that too for such powerful persons who could afford equally big celebrity lawyers, is very high.

And, even if BJP ditched her as “fringe element” out of political expediency and cowardice, we should never forget that Nupur Sharma ji has been a politician. She had served as a BJP spokesperson for a long time. And yes, it’s true that politicians give inflammatory statements from time to time knowing full well they could cause outrage, the key here is ‘knowingly’. Much more than that, in case of Nupur Sharma ji, she’s been a lawyer herself. She must have not just an instinctive but calculated understanding of what constitutes illegal speech and what does not.

So, all in all, there’s every chance she could be acquitted for the charges of 153A, 295A and 505B or those which are used when it comes to offences against religion. At least that’s what I’m speculating.

And this is my point in this lengthy exercise, to highlight 2 things, apart from the above possibility of her acquittal:

The slippery slope of blasphemy laws, and the fates awaiting all those who made fun of shiv lingam but want Nupur Sharma imprisoned – or worse.

The lack of complete facts in public domain. We must, all of us, always assume that courts will have more admissible facts than any common man. Police will investigate the case. After which it might discover the kind of facts that none of us know, possibly.

For example: What if it discovers in her laptop/electronic devices, and by talking to other witnesses that it was all part of a plan? What if that plan was to force Nupur Sharma to say those things? What if there was a threat to her or her family before hand? Or conversely, what if she was the one who threatened the Maulana opposite her to insult the shiv-lingam? So she could shrug all responsibility? What if police discover material that could lead to other offences at the behest of foreign players? Like we saw in case of alleged fact checker, how, the investigation into his accounts reveled that he allegedly received foreign funds from Muslim countries in contravention of FCRA laws?

What if it was an international conspiracy hatched by Left-Liberal eco-system and American deep-state, to seek revenge for how the outrage in India had led to dismissal of American sanction mastermind Daleep Singh, and they were seeking dismissal of one of BJP’s star spokesperson in return? Apart from pressuring the government to condemn Russian ‘special military operation’ and to stop the cheap oil purchase, by threatening to cut oil supply from arab world or at least make it complicated, by linking it to one figure about which Muslim nations are known to abandon all international diplomacy?  

The point is : we know only what is in public domain, and we can only speculate about her guilt – like I did, but even based on established legal principles, it’s just that: unqualified speculation. Because I’m not a judge, neither am I a police officer. I don’t know all there is to know about this case. And the real intention of a speech, will always be revealed after an investigation.

We must let police and court do their jobs, before judging anyone guilty ourselves, whether its Nupur Sharma, Mahua Moitra or alleged fact-checkers. Not just because we’re not competent enough to do that, not just because we don’t have all the facts either, but because such prejudging – the likes of which was done by alleged fact checkers against Nupur Sharma ji when he and his followers practically declared her guilty of blasphemy before the court has any chance to examine all the facts… it has led to such a medieval, uncivilized, witch-hunt scenario where even supporting Nupur Sharma ji online are attracting death threats and gruesome ISIS style beheadings.

Do we want to become barbarians like that or do we want to live in a Democracy governed by Rule of Law? That’s the question.

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Abhinandan Pande
Abhinandan Pande
Abhinandan Pande is an aspiring Spy Thriller writer who sees the threats to Bharat as they are - An institutionalized Abrahmic/Left-Liberal revulsion for Hindus' Right to Exist.

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