Content Regulation / Censorship, Hate Speech, Public Order, Religious Expression, Political Expression
Gündüz v. Turkey
Closed Expands Expression
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A petition was filed before the Calcutta High Court asking the State Government to show cause why a writ should not be declared to forfeit all copies of the Koran on the ground of public disorder created by it. The Court refused to direct the Government from forfeiture of copies of the Koran.
The petitioner approached the Calcutta High Court for a Rule Nisi, calling upon the respondent State to issue reasons why the Koran (or Quran) should not be forfeited under section 95 of the Code of Criminal Procedure (CrPC). This provision gives discretionary power to the State Government to forfeit any books that in its opinion is in violation of various penal provisions. The petitioners contended that the Koran incited violence, promoted hatred between religions, and disturbed public tranquility. The initial bench of the High Court (court of first instance) limited the hearing only to decide whether a Rule Nisi should be issued. The application was dismissed. The petitioner appealed before a larger bench.
The judgment was delivered by Justice Dipak Kumar Sen. The Court first undertook judicial notice of the fact that Islam is an accepted religion with a large following in India and that the Koran is its basic religious text. The followers of Islam believe that the Koran is of divine origin and is considered holy. The Court examined the preamble and Article 25 of the Constitution (freedom to practice religion) to arrive at the conclusion that section 95 of the CrPC cannot be invoked against holy religious books. Accordingly, the Court found that the judiciary cannot sit in judgment of the Koran, just as it would refuse to adjudicate on theories of philosophy or of science.
Crucially, the Court deemed the Koran as an “important historical document,” apart from being a religious book, thereby protecting its distribution and propagation. [para. 36] Effectively, the Court shielded the Koran from any governmental interference under section 95 of the CrPC. The Court also held that the power under section 95 of the CrPC was discretionary and in the hands of the Government. Thus, the Court could not interfere.
Importantly, while concluding, the Court held that “the mischief sought to be curbed under Sections 153A and 295A of the Penal Code and Section 95 of the Cr. P. C., 1973 would be aggravated and not controlled by pursuing the instant proceedings.” [para. 38] Sections 153A and 295A of the Indian Penal Code prohibit any form of hate speech or insult to religion causing disharmony between communities. Through the above quote, the Court practically laid down a cost-benefit analysis test to determine future instances when governmental forfeiture may take place under section 95 of the CrPC.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
This case expands freedom of expression because it maintains that Indian laws set in place to protect expression and religious freedom are applicable in this instance and that the Koran, as a religious and historical document, should not be regulated or censored by the government.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
Case significance refers to how influential the case is and how its significance changes over time.
The decision establishes a binding or persuasive precedent within its jurisdiction. High Court’s decision is binding on all lower courts within its territory.
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