7. The Review Application
THE REVIEW APPLICATION
MATTER NO. 297 OF 1985
IN THE HIGH COURT AT CALCUTTA
Constitutional Writ Jurisdiction
In the Matter of an application for condonation of delay in the submission of the review application.
In the matter of Chandmal Chopra & Anr.
The State of West Bengal
- The Hon’ble Mr. Satish Chandra, the Chief Justice and His Companion Justices of the said High Court.
The humble petition of the applicant above-named most respectfully
S H E W E T H :
That the judgment in the above matter was delivered on 17th May, 1985.
That the review petition which has to be moved within 30 days, ought to have been moved by 17th June, 1985, 16th June, 1985, being a Sunday and a holiday.
That the applicant got hurt in the palm of his right hand on 13th June, 1985, got a stitch and bandage and was advised not to move his right hand for some days. A medical certificate is enclosed, marked as annexure ‘A’.
That due to the aforesaid reason the review application has become delayed by a day.
It is therefore prayed that the delay of one day in the submission of the said application may kindly be condoned.
And for which act of kindness your petitioner as in duty bound shall ever pray.
MATTER NO. 297 OF 1985
IN THE HIGH COURT AT CALCUTTA
Constitutional Writ Jurisdiction
An application for review of judgement dated 17.5.1985.
Chandmal Chopra of 25, Burtolla Street, Calcutta - 7.
The State of West Bengal, represented by the Secretary, Department of Home, Govt. of West Bengal, having his office at Writers’ Building, Calcutta - 1.
Being aggrieved by some mistakes or errors apparent from the judgment dated 17.5.85 passed by His Lordship Mr. Justice Bimal Chandra Basak dismissing in limine the Court Application in Matter No. 297 of 1985 from which no appeal has been filed and due to the discovery of new and important matter which inspite of exercise of due diligence could not be produced by the applicant at the time when the matter was heard, the applicant above-named begs to file this memo of review against the aforesaid decision on the following amongst other
G R O U N D S
For that the findings in paragraph 28 of the judgment that the Koran is of divine origin and that the Koran has no earthly source, based as they are not on any evidence but on mere religious beliefs, are derogatory to the basic constitutional principle of secularism and are therefore unconstitutional.
For that the finding given in paragraph 34 of the judgment that a court cannot sit in judgment on a holy book is unconstitutional.
For that a book, even if it be a book held sacred by any community living in India, loses protection of Sec. 295 if its publication amounts to offences under Section, amongst others, 295A I.P.C. and should have been held accordingly.
For that the finding given in paragraph 31 that the Koran does not insult other religions is not correct in view of the various sayings of the book already quoted in para 6 of the Writ application.
For that the finding given in paragraph 37 of the judgment that Sec. 153A I.P.C. has no application in this case is not correct as the various sayings of the Koran, already quoted in para 5 of the Writ application, do promote, on grounds of religion, disharmony or feeling of enmity, hatred and ill-will between different religious communities.
For that the following submissions are not recorded nor dealt with in the said judgment:
(i) That Sec. 295 would not protect an object, even if held sacred by any class of persons, if the object happens to be a book and its publication amounts to commission of offences punishable u/s 295 I.P.C. itself apart from Secs. 153A and 295A I.P.C. inasmuch as whoever seeks protection of law must come with clean hands.
Some quotations from the book which exhorts its followers to take the idols (which are also the objects held sacred by other class of persons) to Hell for being burnt in hell-fire, were cited at the time of hearing.
(ii) In reply to a question which was raised by the Id. Judge, namely, could an object of art, even if somewhat obscene, be proscribed on the ground of obscenity, the following summary of a Supreme Court judgment in A.I.R. 1985 (S.C.) 881 given by Chittaley and Appu Rao, at page 2188 of their book on the Indian Penal Code was relied upon:
‘Where obscenity and art are mixed up, art must be so preponderating as to throw the obscenity into a shadow or the obscenity so trivial and insignificant that it can have no effect and may be overlooked.’
The volume containing the report of the said judgment of the Supreme Court was also produced before the Judge.
For that the finding in paragraph 37 of the judgment that the contention of the respondent that this application is motivated cannot be completely ruled out, is not correct.
For that the Id. Judge ought to have held that the petition had been filed with bonafide motives and in the interest of the country and the public good.
I certify that the above are in my opinion good grounds of review.
MATTER NO. 297 OF 1985
State of West Bengal
S U B M I S S I O N S
May It Please Your Lordship
This is an application for review of the judgement delivered in the above matter on the 17th May, 1985, which it is submitted is based, amongst others, on the following premises:
(1) (As) the ‘Koran’ is of divine origin, so are the religion and its tenets and the philosophy and the legal principles which the ‘Koran’ inculcated. The Koran has no earthly source. (Paragraph 28).
(2) The Court cannot sit in judgment on a holy book… (Paragraph 34).
(3) It cannot be said that Koran offers any insult to any other religion. (Paragraph 31).
(4) Section 153A of the Indian Penal Code has no application. (Paragraph 37).
I now propose to deal with the grounds of review according to the serial in which they appear in my review petition.
GROUND NO. 1
- The findings that the Koran is of divine origin and that it has no earthly source are based on religious beliefs and not on evidence. Unlike in a theocratic state (where Government is run by priests claiming to rule with divine authority), the courts of law in a secular state, it is respectfully submitted, cannot give their findings based on religious beliefs. Rather, the courts of law in a secular state, in giving findings and in arriving at conclusions must necessarily act in disbelief, or disregard, of religious faiths and beliefs. The term ‘secularism’ as defined by Webster’s New World Dictionary, Second College Edition, 1972, means ‘a system of doctrines and practices that disregards or rejects any form of religious faith ’ and, secondly, secularism ‘is the belief that religion and ecclesiastical affairs should not enter into the functions of the state ’ According to Funk and Wagnalls New Standard Dictionary of the English Language, 1963, a secularist is ‘one who believes that religion should not be introduced into the management of public affairs.’ According to Webster’s Third New International Dictionary, Unabridged (1971), secularism means ‘a view of life or of any particular matter based on the premise that religious considerations should be ignored or purposely excluded.’ According to the Concise Oxford Dictionary, the word ‘secular’ means ‘sceptical of religious truth.’ Accordingly, it is respectfully submitted that in consonance with the principle of secularism, this court should have disbelieved or disregarded, all religious beliefs about Koran.
It is therefore submitted that the findings given about the divine origin of Koran are derogatory to the basic constitutional principle of secularism and are therefore unconstitutional.
GROUND NO. 2 ****
(1) Unlike in theocracy, as already defined above, in a democracy, the people govern themselves according to their own will as expressed through their representatives and not according to any divine book, and if the will so expressed ordains that a book, under certain circumstances, is liable to be forfeited, then any book, whether classic or epic, religious or temporal, old or new, is liable to be so forfeited provided only that those circumstances are present. And if a question arises whether those circumstances are present in the context of a particular book, courts of law, it is respectfully submitted, are the only forum to decide the question. Even otherwise also, under Article 226 of the Constitution, our High Courts are vested with the power to issue, amongst others, writs of Mandamus to any authority or Government in all appropriate cases. Accordingly, the finding given in para 34 that the courts cannot sit in judgment on holy books, being an abdication of the express constitutional power is, it is respectfully submitted, derogatory to the Constitution, and, in particular, to Article 226 thereof, and is therefore unconstitutional.
GROUND NO. 3
(1) Section 295 I.P.C. no doubt protects objects held sacred by any class of persons from destruction. But this section, in the first place, does not override the provisions of Sections 295A I.P.C. nor of Section 153A I.P.C. In other words, Section 295 I.P.C. does not prevent a Government from acting under Section 95 Criminal Procedure Code, if the Government finds that the publishers of a book have violated the provisions of Sections 295A and 153A I.P.C. This is clear from the language of Section 295 itself inasmuch as the protection of Section 295 is available against those persons who destroy any sacred object ‘with the intention of insulting the religion of any class of persons.’ When a Government acts u/s 95 Cr. P.C. it does not act, it is submitted, with any such intention. Rather, the intention is to prevent the publisher of a book from committing offences under Sections 295A and 153A I.P.C., etc.
GROUND NO. 4
- The finding that Koran does not insult other religions, is not, it is respectfully submitted, correct in view of the various quotations from the book given in para 6 of the Writ Application, in particular the following, none of which, it is respectfully submitted, undergoes any change in its meaning even if read in its context:
(a) ‘Unbelievers are those who declare, Allah is the Messiah (i.e. the Christ), the son of Mary. Say, ‘Who could prevent Allah from destroying the Messiah, the son of Mary, together with his mother?’
(b) ‘The unbelievers among the people of the Book (i.e. the Christians and the Jews) and the pagans shall burn for ever in the fire of Hell. They are the vilest of all creatures.’
(c) ‘He answered: Would you then worship that, instead of Allah, which can neither help nor harm you? Shame on you and on your idols.’
(d) ‘You and all your idols shall be the fuel of Hell; therein you shall all go down. Were they true Gods, your idols would not go there; but in it they shall abide for ever. They shall groan with pain and be bereft of hearing.’
(e) ‘Then Allah will say, ‘Jesus, son of Mary, did you ever say to mankind, worship me and my mother as Gods besides Allah?’ ‘Glory to You,’ he will answer, ‘How could I say that to which I have no right? If I had ever said so, You would have surely known it. You know what is in my mind, but I cannot tell what is in Yours. You alone know what is hidden. I spoke to them of nothing except what You bade me. I say, Serve Allah, my Lord. I watched over them whilst living in their midst, and ever since You took me to You, You Yourself have been watching over them. You are the witness of all things. They are Your own bondsmen. It is for You to punish or to forgive them. You are the Mighty, the Wise One’.’
(f) ‘On the day when He assembles them with all their idols, He will say: ‘Was it you who misled My servants, or did they wilfully go astray?’ They will answer: ‘Allah forbid that we should choose other guardians besides You. You gave them and their fathers the good things of life, so that they forgot Your warnings and thus incurred destruction.’ Then to the idolaters Allah will say: ‘Your idols have denied your charges. Those of you who have done wrong shall be sternly punished’.’
GROUND NO. 5
The finding that Section 153A has no application in this case is not, it is respectfully submitted, correct, as the various quotations from Koran already given in paragraph 5 of the Writ Application including the following, none of which, it is respectfully submitted, undergo any change in its meaning even if read in its context, do promote, on grounds of religion, disharmony, or feelings of enmity, hatred and ill-will between different religious communities:
(a) ‘We renounce you (i.e. idol-worshippers); enmity and hate shall reign between us until you believe in Allah only.’
(b) ‘Believers! do not befriend your fathers or your brothers, if they choose unbelief in preference to faith. Wrongdoers are those that befriend them.’
(c) ‘Therefore, We stirred among them (i.e. the Christians) enmity and hatred, which shall endure till the Day of Resurrection.’
(d) ‘Believers! take neither Jews nor Christians for your friends. They are friends with one another. Whoever of you seeks their friendship shall become one of their number. Allah does not guide the wrong-doers.’
GROUND NO. 6
The two submissions, as summarised in ground No. 6, were, it is respectfully submitted, made in course of petitioner’s reply, but have not been recorded and may, therefore, it is prayed, be recorded now.
GROUND NO. 7
In paragraph 37 a finding has been recorded that the petitioner may be said to have committed offences under Sections 153A and 295A I.P.C. In this connection, it is respectfully submitted that the petitioner came across a book, the publishers of which, according to the petitioner’s humble view, violated the law of the land, in particular, that laid down in Sections 153A and, 295A I.P.C. He accordingly requested a responsible Officer of the Government to act under Section 95 Cr. P.C. If the Government so acts under Section 95 Cr. P.C., the Government could not, it is respectfully submitted, be said to commit any offence under Sec. 295 I.P.C. for the reasons already submitted above, and since the petitioner has not requested any street urchins to destroy any sacred object but a responsible Government Officer to act under Section 95 Cr.P.C. his culpability if any, it is respectfully submitted, is co-terminus with that of the Government. Accordingly the conclusion that the application may have been motivated may kindly be reviewed.
GROUND NO. 8
The petition was not filed, it is respectfully submitted, in a sudden fit of religious frenzy. But it was filed after a hard labour of one and a half years. It could thus be said, it is respectfully submitted, to be moved with bonafide motives only unless there is any evidence to the contrary.
Re: Jurisdiction of Writ Court to bear Review Application.
Lastly, in support of my humble plea that this Hon’ble Court has ample jurisdiction to entertain a review application, I may submit that in Shivdeo Singh - vs - State of Punjab (A.I.R. 196 S.C. 1909, 1911) the Supreme Court has held that ‘the power of review inheres in every court of plenary jurisdiction to prevent miscarriage of justice or to correct grave and palpable errors committed by it.’
18th June, 1985