Ex parte Choudhury — An Opportunity Missed

Publication Date01 Mar 1991
AuthorMarcus Tregilgas‐Davey
DOIhttp://doi.org/10.1111/j.1468-2230.1991.tb02655.x
Exparte
Choudhury
-
An Opportunity Missed
Marcus
Tregilgas-Davey
*
The question before the Divisional Court in
Ex
purte
Choudhuryi
was whether
‘The Satanic Verses’ amounted
to
a blasphemous or seditious libel. In respect of
the former,
the
draft summons by Mr Azhar accused the author, Salman Rushdie
and Penguin Books of publishing or causing
to
be published ‘The Satanic Verses,’
said
to
be a scurrilous attack on the religion of Islam and Christianity, and as such
a
blasphemous libel contrary
to
the common law of England. It also alleged the
publication
to
be a seditious libel in that the content of ‘The Satanic Verses’ raised
widespread discontent and dissatisfaction among Her Majesty’s subjects, also contrary
to
the common law of England.
The Chief Magistrate at Bow Street Magistrates’ Court had decided that ‘The
Satanic Verses’ was neither a blasphemous nor a seditious libel. Mr Azhar sought
an order of
certioruri
quashing this decision and an order of
mandamus
to
direct
the magistrate
to
the relief sought. In a single judgment delivered by Watkins
LJ,
the Divisional Court refused both orders and confirmed the decision of the Chief
Magistrate, stating that:
The
mere fact
that
the
law
is anomalous or evcn unjust does not
in
our vicw justify the court
in
changing
it,
if
it
is clear
. . .
(and) we have
no
doubt
that
as
the
law
now stands,
it
does
not cxtend to rcligions other
than
Christianity.z
Seditious
Libel
Mr Azhar argued that ‘The Satanic Verses’ amounted
to
a seditious libel for three
reasons. First, because
it
had created discontent among Her Majesty’s subjects.
Second, because
it
had created antagonism and hostility between different sections
of Her Majesty’s subjects, ie between British muslims who wished
to
see the book
banned, and non-muslim British citizens who are, on the whole, against restricting
the publication and availability of ‘The Satanic Verses.’ Third, because
it
has caused
the breakdown
of
diplomatic relations between the United Kingdom and Iran, and
has damaged relations
with
other Islamic states and generally generated hostility
towards the United Kingdom among followers of Islam throughout the world.
The Divisional Court held that the book was not a seditious libel because
it
had
not been shown there was an intention on the part of Salman Rushdie or Penguin
Books
to
incite
to
violence, or to create public disturbance or disorder against the
institutions of government
in
this country:
Not only must there be proof of
an
incitement to violcnce
in
this connection,
but
it
must
be violcncc or resistancc or dcfiance for the purpose of disturbing constituted authority.’
By
‘constituted authority,’ Watkins
LJ
had
in
mind some person or body holding
public office or
in
some way discharging a public function of the State.
*Lrcturcr
in
Law,
University
of
Southaiiipton.
I
2
Unreported
judginent.
3
ibid.
The
Ti~rres,
9
April
1990.
294

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