Thursday, October 21, 2021
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Can Zakir Naik be prosecuted?

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Bombay-based Islamic preacher and televangelist Zakir Naik is under the scanner for his speeches allegedly spewing communal hatred on his Peace TV channel. It is being projected that young men are increasingly getting attracted to and influenced by his furious renditions and taking up the gun to protect Islam. The media is agog with reports that one of the militants responsible for killing more than 20 people in Dhaka in the recent attack was inspired by Naik.

Naik has been virulently condemned on social media with calls for his arrest (although there is widespread support for him as well). However, the Indian government has refrained from taking any action against Naik who is still abroad and believed to have cancelled his return-home. The government according to media reports believes that it needs to dig into the speeches further with a fine toothcomb to gather irrefutable evidence against the ideologue to nail him.

That apart, looking from a legal perspective, can Naik be really prosecuted just on the basis of his speeches? The path is tough as the law is very clear on the issue and the courts are likely to take a cognizance of only “hard facts”. Perceptions do not matter. The speeches have to be examined at the macro level. Mere nitpicking at micro level will not suffice. Contradictory patterns in his speeches relating to supporting as well as condemning terrorism pose a big challenge for probing agencies to decipher the actual intent.

Article 25 of our constitution gives us the fundamental right of freedom of conscience and free profession, practice and propagation of religion. This is not an absolute right. It is subject to public order, morality and health and to the other provisions in Part III of the Constitution which sets out our fundamental rights.

Article 19(1) (a) gives us the fundamental right to freedom of speech and expression. This is also subject to restrictions which can be imposed in the interests of sovereignty and integrity of India, 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.

These reasonable restrictions find their voice in various laws including Sections 153A and 295A of the Indian Penal Code. Section 153A provides punishment for “promoting enmity between different groups on grounds of religion, race, place of birth, residence, language, etc., and doing acts prejudicial to maintenance of harmony.”It goes on to explain that among other ways in which such promotion of disharmony may be done is via words, spoken or written.

In order to arrest Naik, the police would need some evidence that his words “spoken or written” do indeed promote such disharmony.

Section 295A punishes stronger acts of disharmony in that it outlaws “deliberate and malicious acts, intended to outrage religious feelings of any class by insulting its religion or religious beliefs”. Again, such acts can be perpetrated by words “spoken or written” in addition to other means of propagation.

It remains to be seen whether the police will have enough evidence from Naik’s speeches and prima facie find that he can be arrested under these sections. Even if arrested, the case may fall flat in the courts of lawif what Naik says does not fit into the parameters of these sections.

India Legal Bureau


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