[INDOLOGY] Against the petition against Prof. Pollock

Nityanand Misra nmisra at gmail.com
Fri Mar 4 00:32:08 EST 2016


Dear Prof. Williams,

There is no anti-sedition ‘law’ in the Indian constitution. Rather, there
is a ‘section’ (Section 124A) in the ‘Indian Penal Code’ (IPC). The IPC is
different from the Constitution of India. The Concurrent List (List III in
the seventh schedule) in the Constitution of India specifies that the
matters included in the Indian Penal Code and the Code of Criminal
Procedure are part of the Criminal law and Criminal procedure, respectively.

You are correct in saying that the section 124A of the IPC does not cover
hate speech. But there are other sections which do cover hate speech,
specifically sections 153A, 153B, and 295A of the IPC. Therefore, India
does not need any new laws on hate speech.

You may please refer the following links:
Section 153A: http://indiankanoon.org/doc/345634/
Section 153B: http://indiankanoon.org/doc/771276/
Section 295A: http://indiankanoon.org/doc/1803184/
You may also refer the Wikipedia article
https://en.wikipedia.org/wiki/Hate_speech_laws_in_India

These sections have existed for a long time and neither half of the BJP
(including current PM) nor half of RSS are in jail. Nobody has prevented
the opponents of RSS and BJP (and there are many in India) to invoke these
sections against RSS and BJP members including the current Prime Minister.
We have to keep in mind the principal of criminal jurisprudence which
applies in India: an accused is to be considered innocent until proven
guilty. Mere accusations or opinions are not sufficient.

Regarding the point that for Afzal Guru there was “no evidence that [he]
belonged to [sic] any terrorist group [sic] or organization,” (the exact
words were “there is no evidence that he is a member of a terrorist gang or
a terrorist organization”), this has to be read in the context of the court
ruling. The text of the full judgement is here:
http://indiankanoon.org/doc/1769219/

What the Supreme Court of India said was that Guru could not be convicted
under Section 3(5) of POTA (which is here:
http://indiankanoon.org/doc/1157621/) as there was no evidence outside the
confessional statement that Guru was a member of a terrorist gang or a
terrorist organization. But the Supreme Court of India did find him guilty
under other sections of the IPC including section 120B (criminal
conspiracy, read here: http://indiankanoon.org/doc/1897847/) and section
302 (murder, read here: http://indiankanoon.org/doc/1560742/).

Here is the relevant portion from the judgement
Quote
The conviction under Section 3(2) of POTA is set aside. The conviction
under Section 3(5) of POTA is also set aside because there is no evidence
that he is a member of a terrorist gang or a terrorist organization, once
the confessional statement is excluded. Incidentally, we may mention that
even going by confessional statement, it is doubtful whether the membership
of a terrorist gang or organization is established.
We shall then consider whether the conviction of Afzal under Section 120B
read with Section 302 IPC is justified. The High Court upheld the
conviction and gave death sentence to the two appellants under this
Section. We are of the view that the conviction and sentence on this count
is in accordance with law.
Unquote

Unless somebody knows the facts of the case and Indian law better than the
Supreme Court of India, there is no reason to consider their opinion above
the final judgement of the Supreme Court of India.

With kind regards, Nityanand
On Mar 3, 2016 10:16 PM, "Tyler Williams" <tylerwwilliams at gmail.com> wrote:

> To spare everyone an extended polemic, I will simply say for the moment
> that the 'anti-sedition' law of the Indian constitution is adopted directly
> from colonial law.  It *does not* address 'hate speech', i.e. the
> incitement of individuals or groups to commit violence against the
> country's citizens.  (This would indeed be a good thing, and if there were
> such a law, then half of the BJP and RSS, including the current Prime
> Minister Narendra Modi, would be in jail!)
>
> However, the anti-sedition law is vaguely worded and targeted against
> 'anti-national' activities, i.e. inciting action against the 'nation',
> whatever that may be construed as.  (This was used against freedom fighters
> during the anti-colonial struggle.)  The judgement in Singhal vs. Union of
> India has only made the language more vague.  The current government is
> using the statute in a novel way, using it to ban a variety of speech and
> other freedoms (like assembly) that are typically protected under law.
> Interpreted openly, it could be (and is being used to) prohibit forms of
> 'symbolic' violence or 'destabilization', like publishing maps of Kashmir
> not okayed by the Indian government, to chant the names of those executed
> by the Indian state, etc.
>
> A law prohibiting hate speech would be most welcome-- then citizens could
> then address the inciting rhetoric of many politicians and 'activists'
> against women, Dalits, religious minorities, and the LGBT community (see
> Martha Nussbaum's upcoming book on just this subject).
>
> And, for what its worth, half of those alleged 'slogans' quoted in the
> judge's report have recently been found to have been invented, manipulated,
> or incited by members of the right-wing AVBP at the event, or by political
> and media persons after the event.  They reflect Malhotra's and other's
> misrepresentation of Pollock and non-Indian scholar's comments in an effort
> to whip up existential fears and identity politics for narrow political
> gains.
>
> Perhaps others can weigh in.  In any case, I am not comfortable with this
> one JNU student being asked to pay for the supposed intellectual 'disease'
> of the students of his university, just as I am not comfortable with the
> idea that a man like Afzal Guru, though "no evidence that [he] belonged to
> any terrorist group or organization", should be executed for the purpose of
> "satisfying the collective conscience." (The words are taken from the
> court's execution order itself.)
>
> Best,
> TWW
>
>
> On Thu, Mar 3, 2016 at 5:02 AM, Nityanand Misra <nmisra at gmail.com> wrote:
>
>> Dear list
>>
>> Apropos Prof. Tyler Williams' first point, the judgement mentions on page
>> 6 that there were thirty slogans quoted in pages 3 to 5 of the status
>> report filed by the State. I do not have the status report, but Justice
>> Rani mentions on page 11 of her judgement seven of these slogans, which I
>> reproduce below along with my translations. The slogans eulogize Afzal Guru
>> (convicted by Indian courts for plotting a terrorist attack on the Indian
>> parliament), warn that India will be split into pieces, and call for
>> achieving freedom by the use of guns.
>>
>> 1. AFZAL GURU MAQBOOL BHATT JINDABAD.
>> English: Long live Afzal Guru and Maqbool Bhatt.
>>
>> 2. BHARAT KI BARBADI TAK JUNG RAHEGI JUNG RAHEGI
>> English: The battle will go on and on till India is destroyed.
>>
>> 3. GO INDIA GO BACK
>> English: No translation needed.
>>
>> 4. INDIAN ARMY MURDABAD
>> English: Death to Indian Army.
>>
>> 5. BHARAT TERE TUKKDE HONGE– INSHAALLAHA INSHAALLAHA
>> English: India, you will be split in pieces, Allah willing, Allah willing.
>>
>> 6. AFZAL KI HATYA NAHI SAHENGE NAHI SAHENGE
>> English: We will not tolerate the murder of Afzal Guru.
>>
>> 7. BANDOOK KI DUM PE LENGE AAZADI.
>> English: We will achieve freedom by the [use of] guns.
>>
>> The court ruling does not specify what exactly is anti-national here, but
>> I think it is pretty obvious that glorification of the mastermind of the
>> attack on Indian Parliament, calls for waging a battle till India is
>> destroyed or achieving freedom by violence are anti-India.
>>
>> In India, freedom of speech and expression is not absolute. As per clause
>> (2) of article 19 of the Indian Constitution (cited in Justice Rani's
>> judgement), existing laws can operate and new laws can be made to place
>> reasonable restrictions on the freedom of speech and expression “in the
>> interests of the sovereignty and integrity of India, the security of the
>> State, friendly relations with foreign States, public order, decency or
>> morality or in relation to contempt of court, defamation or incitement to
>> an offence.”
>>
>> The slogans above need to be seen in this important context. Do they
>> qualify as sedition? I think so, but the Indian courts will rule. We will
>> need to see how they apply section 124A of the Indian Penal Code and the
>> Supreme Court ruling in the case of Kedar Nath Singh vs State Of Bihar
>> (1962 AIR 955, 1962 SCR Supl. 2 769) in this case. The 1962 ruling
>> (available here: http://indiankanoon.org/doc/111867/) interpreted 124A
>> to be applicable to activities involving “incitement to violence or
>> intention/tendency to create public disorder or disturbance of law and
>> order/public peace.”
>>
>> I disagree with the observations made by Prof. Tyler Williams in his
>> points (2) to (4), and especially the term repressive and totalitarian
>> thought for a judgement by an Indian court.
>>
>> For point (2), I believe the point being made is that the Indian armed
>> forces ensure a safe environment. The word democracy is not used by the
>> Judge in the statement.
>>
>> For point (3), the previous paragraph is relevant: “The thoughts
>> reflected in the slogans raised by some of the students of JNU who
>> organized and participated in that programme cannot be claimed to be
>> protected as fundamental right to freedom of speech and expression. I
>> consider this as a kind of infection from which such students are suffering
>> which needs to be controlled/cured before it becomes an epidemic.” The
>> judgement specifically refers to the thoughts reflected in some specific
>> slogans on JNU as an ‘infection’ and not to any expression speech
>> questioning the government. I do not think this is fascist language or
>> pogrom logic.  The Indian government is questioned every day in both the
>> Lok Sabha and the Rajya Sabha the ongoing session of the parliament, and
>> the court ruling certainly does not apply to this.
>>
>> For point (4), curbing of what the court calls anti-national activity is
>> not the same as policing all thought on campus. Criticism of the elected
>> government is not an anti-national activity, it happens all the time in
>> India and nobody gets charged with sedition for the same.
>>
>> Thanks, Nityanand
>> On Mar 3, 2016 11:30 AM, "Tyler Williams" <tylerwwilliams at gmail.com>
>> wrote:
>>
>>> Dear colleagues,
>>>
>>> I must apologize in advance-- I would like to keep the discussion on a
>>> positive note, and concisely explore ways that we can continue to work
>>> together to not only protect intellectual freedoms but also to make the
>>> public more aware of the good work being done by Indian and non-Indian
>>> Indologists (many of you are already doing this important work that helps
>>> to avoid the kind of under-informed positions that are gaining currency).
>>> I also greatly appreciate the insights shared by Dominik, Ananya, Matthew,
>>> Anandavardhanan, Andrew and numerous others.
>>>
>>> Yet I find the suggestion that "The full judgement of Pratibha Rani
>>> should likewise be read by all those who signed the solidarity statement on
>>> JNU" because "they can learn a lesson or two from it," a bit troubling.  I
>>> agree that we should all read the statement-- it is a clear marker of how
>>> imperiled free speech and intellectual freedom at Indian universities are
>>> at the present moment.  However, the suggestion that scholars like Sheldon
>>> Pollock, myself, and many of you who signed the petition in support of JNU
>>> should 'learn' from Justice Rani's statement is deeply troubling.  Among
>>> the many problematic things Justice Rani has written, the following stand
>>> out:
>>>
>>> 1. "The thoughts reflected in the slogans raised by some of the
>>> students of JNU who organized and participated in that programme cannot be
>>> claimed to be protected as fundamental right to freedom of speech and
>>> expression. I consider this as a kind of infection from which such students
>>> are suffering which needs to be controlled/cured before it becomes an
>>> epidemic."  Neither does the Justice Rani specify exactly or convincingly
>>> what is 'anti-national' in the students' thought and speech, nor does she
>>> explain why it is anti-national.
>>>
>>> 2. "Suffice it to note that such persons enjoy the freedom to raise such
>>> slogans in the comfort of University Campus but without realising that they
>>> are in this safe environment because our forces are there at the battle
>>> field situated at the highest altitude of the world where even the oxygen
>>> is so scarce that those who are shouting anti-national slogans holding
>>> posters of Afzal Guru and Maqbool Bhatt close to their chest honoring their
>>> martyrdom, may not be even able to withstand those conditions for an hour
>>> even." This bizarrely-worded argument referencing Siachen glacier suggests
>>> that the exercise of military power ensures democracy, *not the actual
>>> exercise of democratic rights like the right to free speech.*
>>>
>>> 3. "Whenever some infection is spread in a limb, effort is made to cure
>>> the same by giving antibiotics orally and if that does not work, by
>>> following second line of treatment. Sometimes it may require surgical
>>> intervention also. However, if the infection results in infecting the limb
>>> to the extent that it becomes gangrene, amputation is the only treatment."
>>> This reference to the aforementioned 'epidemic' is a clear and chilling
>>> threat made to those who dare to question the government, echoing the
>>> language of fascist regimes and pogrom logic.
>>>
>>> 4. Justice Rani states that she grants bail to the jailed president of
>>> the JNU Students Union on the condition that "as President of JNU Students
>>> Union, he will make all efforts within his power to control anti-national
>>> activities in the campus" and elsewhere suggests that JNU faculty and
>>> administrators should curb anti-national thought on campus.  This amounts
>>> to nothing less than an order to police thought on the university campus
>>> and a threat that failure to do so will result in the cancelation of bail.
>>>
>>> Since this email is already lengthy, I will simply invite colleagues to
>>> read the document, but do wish to register my serious concern that this
>>> appears to be a step backward, not forward, in securing intellectual and
>>> political freedoms in the academy.  Let's please keep the conversation
>>> positive and moving forward, but we should also not let it go unremarked
>>> when it is suggested that we who have the temerity to speak up for academic
>>> freedom should 'learn from' repressive and totalitarian thought.
>>>
>>> Respectfully,
>>>
>>> Tyler Williams
>>> Assistant Professor
>>> University of Chicago
>>>
>>>
>>>
>>> On Wed, Mar 2, 2016 at 9:40 PM, Nityanand Misra <nmisra at gmail.com>
>>> wrote:
>>>
>>>> Dear list members
>>>>
>>>> Late last night, Mr. Rohan Murty stated to the Economic Times that
>>>> Prof. Sheldon Pollock will stay on the board of MCLI for “many years to
>>>> come”.[1] With this, the short-lived controversy is over and the chapter is
>>>> closed, and it is time for everybody to move on. While I do not personally
>>>> agree with one statement of Mr. Murty ("there aren't more scholars in India
>>>> capable of carrying out such translations from ancient literature"), I
>>>> respect his decision and am nobody to question it. Mr. Murty's comments
>>>> should be read by all petitioners, they can learn a lesson or two from
>>>> them.
>>>>
>>>> Concidentally, yesterday evening Justice Pratibha Rani granted a
>>>> six-month interim bail to JNU student Kanhaiya Kumar with some conditions
>>>> (he will not participate actively or passively in ... and make all efforts
>>>> within his power to control ... anti-national activities).[2] The full
>>>> judgement of Pratibha Rani should likewise be read by all those who signed
>>>> the solidarity statement on JNU, they can learn a lesson or two from it.
>>>>
>>>> [1] Divya Shekhar and Indulekha Aravind (March 3 2016), Rohan Murty
>>>> says American Indologist Sheldon Pollock to stay, Economic Times, URL:
>>>> http://economictimes.indiatimes.com/articleshow/51231553.cms
>>>>
>>>> [2] Justice Praibha Rani (March 2 2016), Kanhaiya Kumar versus the
>>>> State of NCT of Delhi, Delhi High Coury, URL:
>>>> http://lobis.nic.in/ddir/dhc/PRA/judgement/02-03-2016/PRA02032016CRLW5582016.pdf
>>>> On Mar 1, 2016 2:04 PM, "Caren Dreyer" <mail at caren-dreyer.de> wrote:
>>>>
>>>>> Dear all, isnt it time for an alphabetical blacklist to be regularly
>>>>> updated in order not to invite the wrong persons financed by public funds
>>>>> caren dreyer
>>>>>
>>>>> Sent from my phone.
>>>>>
>>>>> On 01 Mar 2016, at 13:31, Walter Slaje <slaje at kabelmail.de> wrote:
>>>>>
>>>>> ​ ​
>>>>> Dear List,
>>>>>>
>>>>>>
>>>>>>
>>>>>> it might be of some relevance to the community of Indologists that
>>>>>> among the prominent signatories of the Pollock removal petition Prof.
>>>>>> V. Kutumba Sastry ranks fifth on top of the list:
>>>>>>
>>>>>>
>>>>>>
>>>>>>
>>>>>> https://www.change.org/p/mr-n-r-narayana-murthy-and-mr-rohan-narayan-murty-removal-of-prof-sheldon-pollock-as-mentor-and-chief-editor-of-murty-classical-library
>>>>>>
>>>>>>
>>>>>>
>>>>>> That Prof. Kutumba Sastry signed this petition in his capacity of
>>>>>> the „President, International Association of Sanskrit Studies”
>>>>>> (IASS), has meanwhile attracted the attention of also the media, who
>>>>>> specifically single out his name and function:
>>>>>>
>>>>>>
>>>>>> http://indianexpress.com/article/india/india-news-india/murty-library-editor-petition-wants-us-scholar-removed-cites-jnu-remarks/
>>>>>>
>>>>>>
>>>>>> http://www.huffingtonpost.in/2016/03/01/sheldon-pollock-murty-lib_n_9345928.html
>>>>>>
>>>>>>
>>>>>>
>>>>>> In terms of Indological research, it is perhaps of no little
>>>>>> significance that the President of the IASS - a leading organization
>>>>>> carrying “International” as part of their name and arranging the "World
>>>>>> Sanskrit Conference" on a regular basis - publicly supports the text of the
>>>>>> debated petition in full and demands, among others, “Make in India” ethics
>>>>>> and “Swadeshi Indology” in contexts of research and academic publications
>>>>>> guidelines. Trying to be “international” and “swadeshi” at the same time
>>>>>> clearly equals a contradiction in terms.
>>>>>>
>>>>>>
>>>>>>
>>>>>> The IASS ought to state their position in this matter by clarifying
>>>>>> if, in promoting nationalist ideas of Indological research, their president
>>>>>> is acting on their behalf:
>>>>>>
>>>>>> http://www.sanskritassociation.org/board-members.php
>>>>>>
>>>>>>
>>>>>>
>>>>>> Thanks and regards,
>>>>>>
>>>>>> WS
>>>>>>
>>>>>
>>>>>
>>>>> -----------------------------
>>>>> Prof. Dr. Walter Slaje
>>>>> Hermann-Löns-Str. 1
>>>>> D-99425 Weimar
>>>>> Deutschland
>>>>>
>>>>> Ego ex animi mei sententia spondeo ac polliceor
>>>>> studia humanitatis impigro labore culturum et provecturum
>>>>> non sordidi lucri causa nec ad vanam captandam gloriam,
>>>>> sed quo magis veritas propagetur et lux eius, qua salus
>>>>> humani generis continetur, clarius effulgeat.
>>>>> Vindobonae, die XXI. mensis Novembris MCMLXXXIII. ​
>>>>>
>>>>>>>>>>>>
>>>>>
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>
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