Justice Rohinton Fali Nariman Slams Modi for 'Aurangzeb-Shivaji Binary', Silence on Hate Speeches

The former Supreme Court judge proposed amending existing laws to prescribe a minimum punishment for those who deliver hate speeches.

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New Delhi: Former Supreme Court judge Justice Rohinton Fali Nariman hit out at Prime Minister Narendra Modi, without naming him, for his recent comments on Aurangzeb and Shivaji in a communal angle, and his stoic silence in the wake of rising hate speeches, The Leaflet has reported.

“We heard the other day from the very head of the ruling party a juxtaposition of a Mughal emperor known for being a bigot, namely, Aurangzeb as against Shivaji who was known to be a secular leader…”, Justice Nariman said on January 14 during his keynote address delivered on the occasion of the inauguration of D.M. Harish School of Law, Mumbai (watch and read the full speech).

On December 13, 2021, inaugurating the Kashi Vishwanath Corridor project – weeks ahead of Uttar Pradesh elections where the Prime Minister was seen overtly involving himself in elaborate Hindu rituals – Modi played up “Aurangzeb-Shivaji binary”, aimed at pitting ‘good’ Hindu rulers against ‘bad’ Muslims “invaders”.

“Invaders attacked this city, tried to destroy it. History is witness to Aurangzeb’s atrocities, his terror. He tried to change civilisation with the sword. He tried to crush culture with fanaticism. But the soil of this country is different from the rest of the world. Here if a (Mughal Emperor) Aurangzeb comes, a (Maratha warrior) Shivaji also rises,” Modi had said.

Also read: By Raising Aurangzeb-Shivaji Binary at Kashi Vishwanath, Modi Indicates Divisive Agenda

To this Justice Nariman said, “Now if as a matter of fact, fraternity is a cardinal value in our constitution and you want to engage persons in brotherhood, I would have thought you should have chosen a Mughal emperor such as Babar or his grandson Akbar. Akbar was famous for perhaps being one of the most secular rulers that any nation ever known at any point in time.”

Building on Babar’s tolerance, Justice Nariman read out a letter Babar had written to his son Humayun in which the former had advised the latter to deliver justice as per the tenets of each community and not to allow the sacrifice of cows.

In another veiled attack aimed at the BJP leadership on the issue of rising hate speeches, the former Supreme Court judge said, “We also have unfortunately other higher echelons of the ruling party not only being silent qua hate speech but almost endorsing it.”

Without actually naming it, Justice Nariman referred to the recent Haridwar Dharma Sansad, lamenting that there was a lot of reluctance among the authorities to book those who give hate speeches calling for a genocide of an entire community.

“Not only it is unconstitutional, but it also happens to be a criminal act. It is criminalised in 153A and 505 (C) of the Indian Penal Code (IPC),” he added.

Proposing that the parliament should amend laws to prescribe a minimum punishment in the case of hate speeches, he said, “Unfortunately, in practice, though a person can be given up to three years of imprisonment, this never really happens because no minimum sentence is prescribed. If we really want to strengthen rule of law as contained in our constitution, I would suggest strongly that parliament amend these laws to provide minimum sentences, so that it creates deterrence for others who make hate speech.”

The former Supreme Court judge also expressed concern over the fact that youngsters, students, comedians and those critical of the government are being booked under harsh laws, including under sedition.

“When you have 19(1)(a) being administered as it is being administered today there is a big red signal that is put up so far as the rule of law is concerned. It is time to do away completely with the sedition laws and allow free speech so long as ultimately, it does not exhort somebody to violence and end up as being hate speech,” he noted.

He also criticised the authorities concerned for failing to enforce the Sabarimala judgment, and added that despite five judges having allowed the entry of women of all age groups to the temple, no woman was let in.

“Most unfortunately, the Supreme Court itself sent this judgment by way of review petition – something unheard of – to a bench of nine judges to decide along with other matters and thereby Sabarimla now has gone into limbo,” Justice Nariman said.

At this point, he noted that often the constitutional rule of law in the country was taken for granted. “It is very important to remember that eternal vigilance is necessary not only for liberty but for liberty enforced by courts, which is the rule of law of this country,” he said, emphasising the need for independent judiciary in the country.