Freedom of expression important, yet ban is justified

IN Judgements | 15/07/2010
The Bombay High Court justified a ban on the book, "Islam – A concept of Political World Invasion By Muslims" by R V Bhasin.
The judgement, delivered by Justices RANJANA DESAI, DR. D.Y.CHANDRACHUD and R.S. MOHITE.

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

IN ITS SPECIAL JURISDICTION UNDER

CR.P.C. SECTIONS 95 AND 96.

CRIMINAL APPLICATION NO.1421 OF 2007

R.V. Bhasin,

76, Bajaj Bhavan, Nariman Point,

Mumbai ??" 400 021, residing at

9/4, Bradys Flats, S.B. Road,

Colaba, Mumbai ??" 400 005.

)))))

.... Applicant

Versus

1 State of Maharashtra )

2 Marine Drive Police Station,

Mumbai.

))

... Respondents

And

1 Indian Union Muslim League )

2 Maharashtra Muslim Lawyers

Forum

))

3 Islamic Research Foundation )

4 Jamat-e-Islami-e-Hind )

5 Bombay Aman Committee )

6 Ishwar Prasad G. Khandelwal ) ... Intervenors

Mr. J.P. Cama, senior counsel with Mr. R.J. Cama i/b. Mr.

R.V. Bhasin for the applicant.

Mr. Ravi Kadam, Advocate General with Mr. S.R. Borulkar

and Mr. P.A. Pol, Public Prosecutor with Ms. M.M.

Deshmukh for the State.

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Mr. Y.H. Muchhala, senior counsel with Mr. Amin Solkar,

Mr. Shaikh Yakub and Mr. Mubin Solkar i/b M/s. Judicial

Law & Associates for intervenors 4 to 8.

Mr. I.G. Khandelwal ??" intervenor 3 - in person.

CORAM :SMT. RANJANA DESAI,

DR. D.Y. CHANDRACHUD &

R.S. MOHITE, JJJ.

DATE ON WHICH THE JUDGMENT IS

RESERVED : 14TH AUGUST, 2009.

DATE ON WHICH THE JUDGMENT IS

PRONOUNCED : 6TH JANUARY, 2010.

JUDGMENT :- (Per Smt. Ranjana Desai, J.)

1. Rule. Respondents waive service. With the consent

of the parties and at the request of the counsel, taken up

for hearing.

2. The applicant, who is an advocate, is the author of a

book entitled "Islam ??" A concept of Political World Invasion

By Muslims" ("the book"). The book was published in

2003 by National Publications, 76, Bajaj Bhavan, Nariman

Point, Mumbai of which the applicant claims to be the

proprietor. The book was translated into Hindi by Dr. Anil

Misr.

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3. In exercise of powers conferred by sub-section (1) of

section 95 of the Code of Criminal Procedure, 1973 ("the

Code") the Government of Maharashtra issued a

notification dated 9/3/2007 ("the Notification") and

declared that every copy of the book as well as of the

translation thereof shall be banned and forfeited to

Government. The Notification is as follows :

"NOTIFICATION

General Administration Department

Mantralaya, Mumbai ??" 400 032

Dated the 9th March, 2007.

Code of

Criminal

Procedure, 1973.

No.PUB2007-C.N.15/07-XXXIV ??"

WHEREAS the national Publications having

its office at 76, Bajaj Bhavan, Nariman

Point, Mumbai ??" 400 021, has published a

Book, in the year 2003, captioned as

"ISLAM ??" A Concept of Political World

Invasion by Muslims" written by one R.V.

Basin, Advocate Supreme Court of India,

containing 166 pages and translated in

Hindi by Dr. Anil Mishra captioned as

"ISLAM RAJNAITIK VISHWA PAR

MUSLIM AKRAMAN KI AVADHARANA"

containing 180 pages (hereinafter referred

as the said Book" and "the translated

Book" respectively).

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AND WHEREAS the author of the said

book (and in the relevant translation

thereof as "the translated Book") has made

several derogatory and false statements

about Muslim religion, Muslim community,

Mohammed Paigambar and Muslim priests,

as specified in Schedule appended hereto.

AND WHEREAS the author of the said

Book (and in the relevant translation

thereof as "the translated Book") has made

derogatory and false statements on page

number 4 referring to Muslim religious Book

Quaran that, Muslims should kill Kafirs (Non

??" Muslims) and if they do so it is stated on

page number 4 that, they would be given

72 beautiful girls and 72 handsome youth;

similarly, the author has stated on page

number 5 further that, where-ever Muslims

are ruling other religious people be killed

and on page number 10 thereof it is stated

that, Muslims do not consider and accept

other religious people equal to them and

that where-ever Muslim population is less

they are increasing it in an attempt to make

themselves equal with others, therefore it is

said that "Hum Panch, Hamaare Pachhis".

AND WHEREAS the author of the said

Book (and in the relevant translation

thereof as "the translated Book") has made

derogatory and false statements about

Jihaad, Quaran, Mohammed Paigambar,

Indian Muslims and conversion on page

numbers 12, 13, 15, 16, 17, 21, 23, 25, 28,

43, 45, 104, 136, 150, 151, 152, 155, 159

and 160 etc. which poses danger to social

harmony as well as law and order situation;

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AND WHEREAS on page number 23 of

the said Book in the relevant translation

thereof as the translated Book", "Khatme

Nawabac" (Nabuwat) has been written as

sentiments of Muslims;

AND WHEREAS this might raise a

question mark about the basic aim and

objective behind writing the book without

taking the Muslim sentiments into

consideration and without giving a

thorough consideration to the subject, the

Government has taken serious note of this

derogatory, tasteless and malicious

writings;

AND WHEREAS in column of Hindi

evening newspaper "Dopahar Ka

Saamana", dated 20th January 2007 an

article is published captioned as "Dharmki

Aadme Apna Hee Jugad" has referred the

translated Book, and an offence has been

registered against the Editor, Executive

Editor, Printer and Writer of the said Book

under sections 153A, 295A, 505 read with

34 of Indian Penal Code in Dadar Police

Station as C.R. No.34/07;

AND WHEREAS for the reasons

aforesaid the Government of Maharashtra

is of the opinion that the circulation and

sale of the said Book and relevant

translation thereof as the translated Book

contain abusive language bringing

meanness to Jihaad, Quaran, Mohammed

Paigambar, Indian Muslims and conversion,

as well as derogatory and false references

therein is likely to create hatred against

Muslims in the minds of non-Muslims

thereby promoting enmity between classes

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so also the said Book and relevant

translation thereof as the translated Book

outrages the fillings of a Muslim section of

society and maliciously insulting the

religion and religious beliefs of Muslims and

likely to lead to acts of violence and

disharmony and that any further circulation

and sale of the said Book and relevant

translation thereof as a translated Book is

likely to result in breach of peace and

public tranquility between classes and

groups, as such the said Book and relevant

translated Book should be forfeited;

NOW, THEREFORE, in exercise of the

powers conferred by sub-section (1) of

section 95 of the Code of Criminal

Procedure, 1973 (2 of 1974), in its

application to the State of Maharashtra, the

Government of Maharashtra hereby

declares that every copy of the said Book

"ISLAM ??" A Concept of Political World

Invasion by Muslims" as well as the

relevant translation thereof as the

translated Book ??" "ISLAM RAJNAITIK

VISHWA PAR MUSLIM AKRAMAN KI

AVADHARANA" shall be banned and

forfeited to the Government.

SCHEDULE

1. "Gandhi advocated pardon to the

Assassin Muslim who killed Swami

Shradhhanand, who was believed to have

written a book with its Title "rangeela

Rasul"? (Preface)."

2. "The Muslims believe and are ordained

by their holy religious texts to eliminate

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Kufr and the Kafirs from the surface of the

earth. Any bloody war that is fought by the

believers against the nonbelievers carries

the religious sanction of Islam".

(Introduction page numbers 3 and 4).

3. "Should he die in this pursuit, the God

assumed Almighty as per Quaranic

statements assures to such pursuer of faith,

an assured life joy and pleasure in the

heavens where he is promised to be served

by 72 beautiful maidens and 72 young male

children to beget pleasure. Such a person

is called as Shaheed. Should he survive

while pursuing this aim and live on the

earth, Quaran promises on behalf of the

God Almighty Allaha to enjoy the life on

earth by using all that he gets by way of

victory over the Kafirs." (Introduction page

number 4)

4. "Islam declares to its followers where

political governance is in the hands of the

believers, they are to act and crush any

counter idea and where it still lacks political

control then to lie on wait for the moment

when through all other means, Darul-Herb

gets converted into Darul-

Islam." (Introduction page number 5).

5. "Muslims do not and cannot accept

any non-believer as equal to them and

hence Modi of Gujarat too right when he

cautions Indian people UNITE to safeguard

themselves from the Muslim invasion who

are waiting only to convert India from Darul

Herb to Darul Islam and now openly say

and believe in HAM PAANCH ??" HAMARRE

PACCHIS."(page number 10).

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6. "This is one religion that supports its

spread by waging jehads including

justifying conducts of terrorism when it

says "show no mercy to the non-believers

(Kafirs) or the idol worshipers and lie in wait

for them to behead them when they appear

before you. (the believers i.e. the

Muslims)". (page number 17, para 2).

7. "Islam considers weaker sex of women

as a commodity meant for the use and

pleasure of men owing allegiance to Islam."

And "Those who embraced Islam in India,

mostly did so under the threat of sword or

were lured into it for its easy promise of

heavens where beautiful women and young

kids were promised as rewards to the

believers." (page number 28, para 2).

8. "HOWEVER ON GOING THROUGH

SEVERALS OF ITS AYATS, ITS ORDAINMENTS

GIVEN TO ITS FOLLOWERS ARE NOT ONLY

DANGERIOUS BUT IN FACT PROMOTE

HATRED IN THE SOCIETY, IT IS BOUND TO

CREATE BITTERNESS BETWEEN THE

MUSLIMS AND THE NON-MUSLIMS LIVING IN

AAA ``AINDIA" REF IS MADE TO IPC

SECTION 153A SUB-SECTIONS (a) & (b) YET

IT IS NOT APPLIED AGAINST MUSLIM'S HOLY

BOOK." (page number 104, para 4).

By order and in the name of the

Governor of Maharashtra,

Sd/-

(Manisha Mhaiskar)

Joint Secretary to the Government."

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4. The applicant has in this application, inter alia,

challenged the Notification.

5. Section 95 insofar as it is relevant reads thus:

"95. Power to declare certain

publications forfeited and to issue

search warrants for the same. - (1)

Where -

(a) any newspaper, or book, or

(b) any document,

wherever printed, appears to the State

Government to contain any matter the

publication of which is punishable under

section 124-A or section 153-A or section

153-B or section 292 or section 293 or

section 295-A of the Indian Penal Code (45

of 1860), the State Government may, by

notification, stating the grounds of its

opinion, declare every copy of the issue of

the newspaper containing such matter, and

every copy of such book or other document

to be forfeited to Government, and

thereupon any police officer may seize the

same wherever found in India and any

Magistrate may by warrant authorize any

police officer not below the rank of subinspector

to enter upon and search for the

same in any premises where any copy of

such issue or any such book or other

document may be or may be reasonably

suspected to be.

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(2) In this section and in section 96, -

(a) "newspaper" and "book"

have the same meaning as in the Press and

Registration of Books Act, 1867 (25 of

1867)

(b) "document" includes any

painting, drawing or photograph, or other

visible representation.

(3) No order passed or action taken

under this section shall be called in

question in any Court otherwise than in

accordance with the provisions of section

96".

6. Under Section 96 of the Code, a person having any

interest in any newspaper, book or other document, in

respect of which a declaration of forfeiture has been made

has to apply to the High Court and every such application

has to be heard by a Special Bench of the High Court of

three judges. Hence, this application filed under Sections

95 and 96 of the Code is placed before this Bench.

Section 96 of the Code reads thus:

"96. Application to High Court to

set aside declaration of forfeiture.-

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(1) Any person having any interest in

any newspaper, book or other document, in

respect of which a declaration of forfeiture

has been made under section 95, may,

within two months from the date of

publication in the Official Gazette of such

declaration, apply to the High Court to set

aside such declaration on the ground that

the issue of the newspaper, or the book or

other document, in respect of which the

declaration was made, did not contain any

such matter as is referred to in sub-section

(1) of section 95.

(2) Every such application shall,

where the High Court consists of three or

more Judges, be heard and determined by

a Special Bench of the High Court

composed of three Judges and where the

High Court consists of less than three

Judges, such Special Bench shall be

composed of all the Judges of that High

Court.

(3) On the hearing of any such

application with reference to any

newspaper, any copy of such newspaper

may be given in evidence in aid of the

proof of the nature or tendency of the

words, signs or visible representations

contained in such newspaper, in respect of

which the declaration of forfeiture was

made.

(4) The High Court shall, if it is not

satisfied that the issue of the newspaper,

or the book or other document, in respect

of which the application has been made,

contained any such matter as is referred to

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in sub-section (1) of section 95, set aside

the declaration of forfeiture.

(5) Where there is a difference of

opinion among the Judges forming the

Special Bench, the decision shall be in

accordance with the opinion of the majority

of those judges.

7. Though the Notification does not specifically state

which sections of the Indian Penal Code are attracted, it

mentions its likely effects such as creation of hatred

against Muslims, promoting enmity between classes,

likelihood of violence, breach of harmony, peace and

public tranquility. The case of the respondents in the

written submissions and in the oral arguments of the

Advocate General is that the book is forfeited on the

ground that it contains matter, the publication of which

would constitute offences punishable under Sections

153A, 153-B and 295-A.

8. The Indian Union Muslim League, Maharashtra,

Muslim Lawyers Forum, Islamic Research Foundation,

Jamat-e-Islami-e-Hind and Bombay Aman Committee filed

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intervention applications. Since the meaning and

interpretation of the Ayats from the Quaran are the

subject matter of the submissions made before this court,

on 20/3/3009, we allowed the intervention applications

with a view to getting suitable assistance in finding the

true meaning and content of the relevant Ayats upon

which the central theme of the book is based. Mr.

Muchala, senior counsel for the interveners informed the

court that he is representing the interveners noted above.

9. Mr. Ishwar Prasad G. Khandelwal, who is stated to be

the National President of a Non Governmental

Organization known as "the Right to Read Foundation"

filed an intervention application. Since, we had allowed

intervention applications filed by the aforestated

organizations/associations, we allowed the intervention

application of Mr. Khandelwal in the interest of justice, on

the same day.

10. Counsel for the petitioner submitted that (i) The

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applicant was not aware of the Notification till 5/4/2007

when his office was raided. The Notification must be set

aside as the applicant was not given a pre-decisional

hearing; (ii) The Notification states in substance that in

the opinion of the State Government, certain passages of

the book as reproduced in the schedule were false and

derogatory and "might have been" written without taking

into account `Muslim sentiments'. Counsel submitted that

the Notification gives no basis, reason or grounds for the

State to come to the aforesaid opinion and the mandate

of Section 95 is, therefore, violated; (iii) since 2003, when

the book was published, it was in circulation and the

Government had found no grounds to act under Section

95 until 9/3/2007 the respondents’ action is therefore

barred by law of limitation; (iv) The Notification is vague

because it does not mention which of the several sections

set out in Section 95 have been violated. This has

deprived the applicant of his right to fully and fairly

exercise his statutory right of making application under

Section 96 of the Code; (v) In paragraph 2 of the

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Notification only certain pages have been stipulated as

containing offensive material. The Advocate General

culled out certain passages from some of those pages

which, according to him, are offensive. There is nothing in

the State's affidavit to indicate that even these grounds

actually prevailed upon the Government on the date on

which the Notification was made. The basic or

fundamental precondition for the exercise of power

namely, an ex-facie exposition of the Government's

reasons is not established; (vi) The Notification does not

state Government's reasons to believe how a book

published four years' ago can suddenly upset Muslim

sentiment in 2007 or how the above mere "likelihood"

comes within the ambit of Section 153A and /or section

295A of the IPC; (vii) The motive of the applicant in writing

the book was to bring home to society certain features

and facets of Islam of which readers might not have been

aware. The book is a historical analysis of certain lesserknown

aspects of Islam and is not intended to promote

feelings of enmity or hatred among classes of persons or

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to cause insult to any particular class or community; (viii)

The bonafides of the applicant are evident from his

statement at page 99 that we are a secular nation and

from the fact that he has avoided reference to some of

the `more provocative' Ayats. The book sets out certain

views on Islam of which the applicant became aware upon

his own research; (ix) In view of the law laid down by the

Supreme Court, the respondents are entitled to rely only

upon those portions of the book which have been

reproduced in the schedule annexed to the Notification.

The Notification must be read strictly to see if it sets out

not only the opinion of the Government but also the

grounds forming the said opinion. The onus is on the

respondents to first make out a case under Section 95 of

the Code for forfeiting the book. It is only after a

reasonable opinion based on objective grounds is shown

to exist that the onus of disproving the Government’s

stand arises. In the present case, there is only an

"opinion" but no "objective grounds" supporting them.

Certain passages which have been cited by the

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respondents are taken from printed historical and

religious writing. In this connection, reliance was placed

on certain passages from the books "The Islamic

Invasion" by Robert Morey, "Rongeela Rasool" by Pandit

Chamupati, "Sex & Violence" by Anwar Shaikh, "Islam &

Terrorism" by Anwar Shaikh. "Vedic Civilization" by Anwar

Shaikh, "The Islamic Word View" by Sujata Hazarika &

Ramya Murlitharan, "Jihad and Jannat in Hadiths" by Dr.

K.V. Palival, "Don't say we didn't warn you", "Great

Thinkers on Islam" compiled by Rana Pratap Roy,

"Islamization of India by the Sufis" by Purshottam, "Hindu

Chintan" by Anand Shankar Pandya and "Speeches of

Mohammed Ali Jinnah and Dr. B.R. Ambedkar and Anti

Hindus" by P. Goradia and K. Phanda; (x) Freedom of

expression is not founded on the wisdom of the opinion or

the amount of research put in before it is expressed; nor

is it dependent on the quality of the literature, the art or

the speech. It is founded on the inherent human right to

express one's views and is subject to a limited deterrent

that this shall not be permitted if it is aimed at social

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unrest, hatred, etc.; The freedom of expression of the

applicant must be protected by quashing the Notification

and lifting the ban on the book; (xi) What has been

stated in the book is not untrue or unknown and is

borne out by the recent events and publication in the

media. The concept of global jihad; the desire for

Islamisation of India, the belief of Muslim leaders that all

Muslims are born Mujahids and they expect all true

believers to give completely their possessions and

persons to jihad even in this day and age have been

published and circulated in newspapers. These are

common perceptions of Indian society. If these

newspapers have not brought about communal hatred,

the respondents must explain how the book with a

publication of about 10,000 copies is said to be ostensibly

aimed at achieving this objective. (xii) With the advent of

the internet, all information is available to everyone.

Banning a book would not achieve the desired effect

and, it would be a pointless exercise. Reliance was

placed on the judgment of the Supreme Court in Ajay

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Goswami v. Union of India & Ors. (2007) 1 SCC

143.

11. In support of his submissions, Counsel relied on the

Supreme Court’s judgments in Ramji Lal Modi v. State

of U.P., AIR 1957 SC 620; Harnam Das v. State of

U.P., AIR 1961 SC 1662; Narayan Das Indurkhya v.

State of M.P., AIR 1972 SC 2086; Nawabkhan

Abbaskhan v. State of Gujarat, AIR 1974 SC 1471;

State of U.P. v. Lalai Singh Yadav, AIR 1977 SC

202; Balwant Singh & Anr. v. State of Punjab, AIR

1995 SC 1785; Manzar Syeed Khan v. The State of

Maharashtra & Anr., (2007) 5 SCC 1 and Baragur

Ramchandra & Ors. v. State of Karnataka & Ors.

(2007) 5 SCC 11 and on the judgment of the Nagpur

High Court in Bhagwati Charan Shukla v. Provincial

Government C.P. & Berar, AIR (34) 1947 Nagpur 1.

Reliance was placed on the judgments of this court in

Gopal Godse v. The Union of India & Ors., AIR 1971

Bombay 56; M/s. Varsha Publications Pvt. Ltd. &

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Anr. v. State of Maharashtra & Ors., 1983 Cri.L.J.

1446 and Anand Chintamani Dighe & Anr. v. State

of Maharashtra & Ors., 2002 (1) Bom.C.R. 57 and in

Sangharaj Rupawate & Ors. v. Nitin Gadre & Ors.

in Writ Petition No.1721 of 2004 decided on

26/4/2007.

12. The Advocate General submitted that (i) There are

three facets of a valid notification. They are (a) The

forfeited book must contain any matter; (b) Such matter

must promote or must be intended to promote feelings of

enmity or hatred between different classes of people; and

(c) The notification must contain a statement of the

grounds of the Government’s opinion. The first and the

second requirements are set out in the second last

paragraph of the Notification. The Notification promotes

enmity between Muslims and Non-Muslims and which may

outrage the feelings of the Muslims resulting in a breach

of peace and acts of violence; (ii) The grounds of the

opinion are stated in the Notification. The Notification

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satisfies all the requirements. It is not necessary to quote

verbatim the offending paragraphs in the notification.

Hence, the applicant cannot contend that matters not

specified in the Notification cannot be relied upon by the

respondents to substantiate their case; (iii) Grounds of

opinion mean the conclusions of facts on which the

opinion is based. Grounds can be brief and the

Notification clearly indicates the grounds on which the

respondent formed an opinion that the book contains

matter which attracts the penal provisions of the IPC; (iv)

The strict requirement of proving mens rea in criminal

proceedings initiated under Section 153-A or 295-A will

not apply to a notification under Section 95 because

Section 95 only states that it has `to appear’ to the

Government that a particular book contains matter

punishable under the IPC; (v) After the respondent shows

that the requirements of a valid notification are met, the

onus shifts to the applicant. The applicant is bound to

dislodge the opinion of the Government and if he fails to

do so, the Notification must be sustained; (vi) The

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intention prescribed by the relevant Sections of the IPC

can be gathered from the language, contents and import

of the offending material and standard of proof is of lesser

strictness; (vii) The test is whether the book read as a

whole attracts the relevant penal provisions of the IPC.

Throughout the book scurrilous and malicious statements

have been made by the applicant to outrage the religious

feelings of the Muslim community; (viii) The two classes in

the Notification are identified as Muslims and Non-Muslims

and hence Section 153-A of the IPC is attracted. The

applicant calls upon Hindus to protect themselves against

the alleged ordainment of Islam upon all Muslims to kill or

convert Non-Muslims. Hence, the book clearly attracts

Section 153-B(1)(b) and (c) of the IPC; (ix) The applicant’s

case that the book contains matter which is part of

folklore, tradition, history; that the author has merely

relied on contents of other books to substantiate his view;

that his interpretation is supported by several Ayats in the

Holy Quaran must be rejected because the passages of

the Quaran are torn out of context and the book is a

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deliberate misreading of the Quaran solely to promote

feelings of ill-will through publication in the guise of

political thesis or historical truth. Even truth is no defence

to a charge under Section 153-A, 153-B or 295-A of the

IPC; (x) The plea that the book was published in 2003 and

till its forfeiture there has not been a single instance of

violence or disturbance of law and order so as to warrant

forfeiture is not tenable; (xi) the applicant not having

raised the plea of limitation in the application, he may not

be permitted to raise it at this stage; [Narne Murthy v.

Ravula (2005) 6 SCC 614 and Municipal Corporation

v. Sri Niyamatullah (1969) 2 SCC 551] (xii) The

validity of Section 95 of the Code has been upheld by the

Supreme Court in Baragur and the contention that there

has been a violation of the principles of natural justice

must be rejected. The power under Section 95 of the

Code is preventive and not punitive. Section 95 does not

contemplate any hearing prior to the taking of a decision,

for that may defeat the purpose of Section 95 of the Code.

Section 96 of the Code provides a post decisional

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challenge. The aggrieved person has an opportunity to

assail the order of forfeiture; (xiii) The restrictions placed

on the exercise of powers under Section 95 of the Code

are reasonable restrictions under Article 19(2) of the

Constitution. The term `in the interest of public order’ as

mentioned in Article 19(2) is of a very wide amplitude and

includes restrictions imposed by Section 95 of the Code;

(xiv) The constitutional validity of Section 295-A of the IPC

has been upheld by the Supreme Court in Ramji Lal

Modi, The doctrine of `clear and present danger’ invoked

by the applicant cannot be imported in the Indian

Constitution; (xv) The petitioner’s reliance on Balwant

Singh and Manzhar Khan is misplaced because they

were cases where offence was registered under Section

153-A of the IPC wherein the degree of proof required to

establish mens rea is greater than in cases where a

publication is forfeited under Section 95 of the Code.

Considering the constitutional mandate of adherence to

the principles of secularism, this court should strike a

balance between protecting the fundamental right of

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freedom of speech on one hand and public interest on the

other and dismiss the application.

13. Since the interveners were allowed to intervene for a

limited purpose, we do not propose to deal with the

submissions which travel beyond the scope of

intervention. It is urged that the courts may refer to

religious scriptures but should not put its own

interpretation over the text or scriptures. The Constitution

protects freedom of conscience and when a question

arises as to what constitutes essential part of religion, the

same should be primarily ascertained with reference to

the doctrine of that religion.

14. When this court has to perform its duty in terms of

Section 95(1) read with Section 96(4), to consider whether

a declaration of forfeiture of any book is to be set aside or

not and when that book happens to be a critical analysis

of a religion, an overview of religious tenets and

philosophy by the court becomes inevitable. We are not

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for a moment contemplating importing our own views on

the scriptures. We shall deal with the rival submissions

keeping in mind the judgments cited by Mr. Muchhala.

Mr. Muchhala has taken us through the relevant Ayats and

explained their context. As and when necessary, we shall

refer to Mr. Muchhala's submissions.

15. Another intervenor, Mr. Khandelwal, who is

appearing in person has raised an objection to our

allowing Mr. Muchhala to intervene. In this connection, he

has relied on an unreported judgment of the Supreme

Court dated 30/8/1999 in Shiv Kumar v. Hukum

Chand & Anr. In that case, the appellant/complainant

wanted the counsel appointed by him to conduct the

prosecution in the Sessions Court. The public prosecutor

had consented to it. The High Court rejected the prayer.

After considering the relevant provisions of the Code,

particularly Section 301 thereof, the Supreme Court

endorsed the High Court's view after observing that the

prosecution in a Sessions Case cannot be conducted by

AJN

27

anyone other than the public prosecutor. The Supreme

Court observed that if a private counsel is allowed a free

hand to conduct a prosecution he would focus on bringing

the case to conviction even if it is not a fit case where the

accused could be convicted. That is the reason why

Parliament has subjected his role strictly to the

instructions given by the public prosecutor. This

Judgment has no application to the present case. Here we

are not concerned with Sessions trial, nor have we

allowed Mr. Muchhala to intervene so as to act as counsel

for the State. We have already clarified that we have

allowed Mr. Muchhala to intervene with a view to getting

suitable assistance in finding out the true meaning and

content of the relevant Ayats. Beyond that, he has no role

to play. It is pertinent to note that since we allowed the

intervention of the organizations represented by Mr.

Muchhala, in the interest of justice, we also allowed the

intervention application of Mr. Khandelwal. The objection

raised by Mr. Khandelwal is, therefore, rejected.

AJN

28

16. Mr. Khandelwal has tendered written submissions.

They are in tune with Mr. Cama's submissions. Mr.

Khandelwal has inter alia contended that in the book, not

a word is stated by the author to instigate Hindus to

violence. According to Mr. Khandelwal, the book is

banned by self appointed arbiters who have decided what

to read and what not to read. He submitted that the book

contains fair criticism of Islam. Mr. Khandelwal has cited

instances of books like "Shivaji the Hindu King in Islamic

India" and "Da Vinci Code" and films like "Jodha Akbar",

"War and Peace" and "Chand Bujh Gaya" where the High

Court and the Supreme Court have zealously guarded

freedom of speech and expression of people by not

approving bans on those books or films. According to Mr.

Khandelwal, in the present case, the ban has not been

imposed on valid constitutional grounds, but is imposed to

serve the interests of different political and religious

groups.

17. Before we examine the present case in the light of

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29

the judgments cited before us, it is necessary to deal with

the point of limitation which was raised by counsel for the

applicant during the course of hearing. He submitted that

the book was published in 2002. Hence, the prosecution

of the applicant is barred under Section 468 of the Code.

This point is not raised in the application nor is it taken in

the written submissions. Though Section 468 of the Code

prescribes period of limitation, under Section 473 of the

Code, cognizance of the offence can be taken after the

expiry of period of limitation, if the court is satisfied in the

facts and circumstances of the case that the delay is

properly explained. In this case, the point having not

been raised, the respondents could not have explained

the delay. We find substance in learned Advocate

General’s submissions based on judgments of the

Supreme Court in Narne Murthy and Sri Niyamatullah,

that the question of limitation being a mixed question of

law and fact the plea must be pleaded and raised at the

outset. In the circumstances, we reject this submission.

AJN

30

18. We must also reject the submission based on

Nawabkhan that action under Section 95 of the Code

was taken in violation of principles of natural justice. In

Nawabkhan, the Supreme Court set aside the

externment order passed against the accused on the

ground that there was a failure to give him a hearing

under Section 59 of the Bombay Police Act. Section 59 of

the Bombay Police Act contemplates a hearing. Section

95 of the Code does not provide for a hearing. Therefore,

Nawabkhan cannot be applied to the present case.

Moreover, the legislature has taken care to protect the

aggrieved person from arbitrary orders of forfeiture by

providing a post-decisional challenge under Section 96 of

the Code. The intention of the legislature in enacting

Section 95 is to empower the State Government to deal

with an emergent situation which is likely to lead to

breach of public order. If the submission of the applicant

is accepted that will frustrate the object behind Section

95. This submission of must, therefore, fail.

AJN

31

19. We shall now turn to the judgments cited by learned

counsel.

20. In Ramji Modi, the Supreme Court was dealing with

a challenge to the constitutional validity of Section 295-A

of the IPC. It was, inter alia, argued that insults to religion

or the religious beliefs of a class of citizens of India may

lead to public disorder in some cases but in many cases

they may not do so and, therefore, a law which imposes

restrictions on the citizens’ freedom of speech and

expression by simply making insult to religion an offence

will cover both varieties of insults i.e. those which may

lead to public disorders as well as those which may not. It

was argued that the law insofar as it covers the first

variety may be said to have been enacted in the interests

of public order within the meaning of Clause (2) of Article

19, but insofar as it covers the remaining variety will not

fall within that clause. The Supreme Court rejected this

submission and observed that in the first place, Clause (2)

of Article 19 protects a law imposing reasonable

AJN

32

restrictions on the exercise of the right to freedom of

speech and expression "in the interest of public order",

which is much wider than "for maintenance of public

order". If, therefore, certain activities have a tendency to

cause public disorder, a law penalising such activities as

an offence cannot but be held to be a law imposing

reasonable restriction "in the interest of order" although

in some cases those activities may not actually lead to a

breach of public order. The Supreme Court observed that

Section 295-A does not penalize any and every act of

insult to or attempt to insult the religion or the religious

beliefs of a class of citizens but it penalises only those

acts of insults to or those varieties of attempts to insult

the religion or the religious beliefs of a class of citizens

which are perpetrated with the deliberate and malicious

intention of outraging the religious feelings of that class.

It was further observed that insults to religion offered

unwittingly or carelessly or without any deliberate or

malicious intention to outrage the religious feelings of that

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