No material to show disharmony or enmity: James Laine book

IN Judgements | 01/08/2010
The Maharashtra government has not shown any evidence that the publication of the book would foment enmity,
said a Bombay High Court judgement delivered by Justices F.I. REBELLO, V K TAHILRAMANI and A S OKA

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

ORDINARY ORIGINAL CIVIL JURISDICTION

WRIT PETITION NO. 1721 OF 2004

1. Sangharaj Damodar Rupawate,

Indian Inhabitant, residing at

Kapilvastu, 4, Kaki Court,

Cumballa Hill Road, Kemps Corner,

Mubai 400 036.

2. Anand Patwardhan, Indian

Inhabitant, residing at

22, Lokmanya Tilak Colony,

Marg No. 2, Dadar,

Mumbai 400014.

3. Kunda, Pramila, Indian

Inhabitant, residing at Nilkantha,

22 B/602, Bimbisar Nagar,

MHADA Complex, Near Mahendra Dairy,

Goregaon (East),

Bombay 65. ... Petitioners

Versus

1. Nitin Gadre, Joint Secretary

to the Government of Maharashtra,

Mantralaya, Mumbai 400 032.

2. The State of Maharashtra,

Government Pleader,

High Court, Mumbai 400032.

3. Manisha Mhaiskar,

Joint Secretary to the

Government of Maharashtra,

Mantralaya, Mumbai 400032. ... Respondents

Mr. P.A. Sebastian with Ms.M.Adenwala for

Petitioners.

Mr. A.A. Kumbhakoni, Associate Advocate General

with Mr. K.R. Belosey, Government Pleader and Mr.

Vishal Kanade for R. No. 2.

CORAM: F.I. REBELLO,

SMT.V.K. TAHILRAMANI &

A.S.OKA,JJJ.

DATED: 26TH APRIL 2007.

ORAL JUDGMENT (Per F.I. Rebello,J.):

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. This Petition is an application under Section 96

of the Code of Criminal Procedure, 1973. It is also

filed as a Petition under Article 226 of the

Constitution of India. We however, propose to treat

it and dispose it off as an application under Section

96 of the Code of Criminal Procedure, 1973. The

State of Maharashtra on 15.1.2004 issued a

notification under Section 95 of the Code of Criminal

Procedure, forfeiting every copy of the book

captioned "Shivaji-Hindu King in Islamic India",

written by one Mr. James W. Laine and was first

published in the year 2003 at Oxford University

Press, New York and Delhi. The matter was heard and

posted for judgment on December, 21, 2006. On that

date, the State Government filed an affidavit dated

17th January, 2006 setting out that notification

dated 15.01.2004 had been withdrawn forthwith.

Another notification dated 28th December, 2006 was

produced which has the same effect as the original

impugned notification.

. Considering the judgment of the Special Bench of

this court, in the case of Gopal Vinayak Godse Versus

The Union of India and Ors. AIR 1971 Bombay 56 we

permitted the Petitioners to amend the Petition to

challenge the Notification dated 28th December, 2006

and carry out all consequential amendments.

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. On March 07, 2007, when the matter came up for

hearing, the Associate Advocate General handed over

an additional affidavit dated 7.3.2007. One of the

objections raised therein was to the locus standi of

the Petitioners to maintain the present petition

considering Section 96 of the Code of Criminal

Procedure, 1973.

2. Before going into the merits of the matter, we

wish to deal with the contention as urged on behalf

of the Respondents in their oral arguments as also in

the written submissions, that the Petitioners have no

locus standi to file and maintain the present

petition. it is submitted that the Petitioners

cannot be said to be a "person having any interest"

in the book in issue. "A person aggrieved", " a

person having any interest" and "a person merely

affected" it is submitted, must be clearly

distinguished from each other for the purpose of

Section 96 of Cr.P.C. This distinction is required

to be drawn in the light of the nature of the book

and the rights, if any, claimed in that regard by the

Petitioner. A reader of a book cannot claim that he

is "a person having any interest" in terms of Section

96. Reliance for that is placed in Ramlal Puri Vs.

State of Madhya Pradesh, 1971 AIR 1971 M.P.152.

. On the other hand, on behalf of the Petitioners,

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their learned counsel draws our attention to the

pleadings. Petitioner No. 1 is a well known Lawyer

practicing in this court since the year 1984 and has

been a public activist in the Ambedkarite movement

and other movements intended to mobilize the deprived

sections of the society. The Second Petitioner, it

is averred is well known film Maker, whose

documentaries are known all over the world for the

artistic finesse and the democratic and secular

message which they so effectively convey. The third

petitioner as per the pleadings, is a social activist

in different fields where the voiceless are given a

voice. It is the contention of the Petitioners, that

it is indispensable for the advancement of human

civilization that historians should have untrammelled

freedom to inquire, discover and disclose facts and

events of the past. It is further submitted that the

freedom of information and knowledge is guaranteed by

the Indian Constitution as well as the international

documents to which India is a signatory. Those who

rule this country do not have the monopoly of wisdom

and they can not decide what the sovereign people of

India should know or should not know. It is further

submitted that the Petitioners and other citizens of

India have a constitutionally guaranteed right to

read the book and to now the contents of the said

book irrespective of whether they agree with the book

or not. The State it is submitted, should not be

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allowed to take advantage of the activities of some

trouble makers and to negate the basic right of the

Indian Citizens to acquire knowledge and to express

their views which is an indispensable part of the

parliamentary democracy. The objection now raised

was not raised when the petition was first heard and

as such the Respondents should be estopped from now

raising this technical plea.

3. The question therefore, is whether the

Petitioners considering the language of Section 96 of

the Code of Criminal Procedure, are entitled to

maintain this application/Petition. The relevant

provisions of Section 96(1) of the Code of Criminal

Procedure, 1973 read as under :

"96. Application to High Court to set aside

declaration of forfeiture :- (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

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sub section (1) of section 95."

. Does the expression "any person having any

interest" merely means, proprietary or pecuniary

interest and excludes persons like the Petitioners

who claim a fundamental right of speech and

expression to purchase and read the book, the copies

of which have been forfeited under Section 95 of the

Code of Criminal Procedure.

4. We may firstly, consider the judgment of the

Supreme Court in K. Anbazhagan Versus Superintendent

of Police and Others, (2004) 3 Supreme Court Cases

767. The Hon’ble Supreme Court was considering the

expression "Party interested" under Section 406 of

the Code of Criminal Procedure. In that case,

transfer was sought of criminal proceedings from one

state to another state by a person who was not the

complainant. The Hon’ble Supreme Court was pleased

to hold that a Petition is maintainable at the

instance of the "party interested". It was argued

that the expression used was "party interested" and

not "person interested" and as such apart from the

Attorney General, it was a party interested who has

locus standi to file their application. The

Petitioner, not being party to the proceedings, was

not "party interested" and has no locus standi.

Rejecting the argument, the Supreme Court observed as

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under:

".................. It will be noticed that the

"party interested" has not been defined under

Cr.P.C. The words "party interested" are of a

wide import and therefore, they have to be given

a wider meaning. If it was the intendment of the

legislature to give restricted meaning then it

would have used words to the effect "party to the

proceedings". In this behalf the wordings of

Article 139-A of the Constitution of India may be

looked at. Under Article 139-A the transfer can

be if "the Supreme Court is satisfied on its own

motion or on an application made by the Attorney

General of India or by a party to any such case"

(emphasis supplied). Also if the provisions of

Chapter XXIX of the Criminal Procedure Code are

looked at, it is seen that when the legislature

intended a "party to the proceedings" to have a

right of appeal it specifically so stated. The

legislature, therefore, keeping in view the

larger public interest involved in a criminal

justice system, purposely used words of a wider

import in Section 406. Also, it is a well

settled principle of law that statutes must be

interpreted to advance the cause of statute and

not to defeat it. The Petitioner being a

political opponent, is vitally interested in the

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administration of justice in the State and is a

"party interested" within the meaning of sub

section (2) of Section 406 Cr.P.C."

. In our case, the expression used is "person having

any interest in any newspaper, book or other

document".

. We shall next,refer to the judgment of the Supreme

Court in D.C. Wadhwa Vs. State of Bihar, 1987 (1)

Supreme Court Cases 379.

"The rule of law constitutes the core of our

Constitution and it is the essence of the rule of

law that the exercise of the power by the State

whether it be the legislature or the executive or

any other authority should be within the

constitutional limitations and if any practice,

is adopted by the executive which is in flagrant

and systematic violation of its constitutional

limitations, petitioner 1 as a member of the

public would have sufficient interest to

challenge such practice by filing a writ petition

and it would be the constitutional duty of this

Court to entertain the writ petition and

adjudicate upon the validity of such practice.

We must therefore, reject the preliminary

contention raised on behalf of the respondents

(-9-)

challenging the locus of the petitioners to

maintain these writ petitions."

. In Ramlal Puri Versus State of Madhya Pradesh

(supra),is a case, where a religious book was

forfeited by the Government under Section 99(A) of

the then Criminal Procedure Code. The Court was

considering the expression "person having an

interest". The court observed that the book is a

religious book on one aspect of an incident on the

Ramayana. The Petitioner there the publisher was

held to have enough interest. Another petitioner who

had sponsored the publisher of the Book was also held

to be a person interested and in so far as the

Petitioner in the third petition, it was held that

any person owing allegiance to a particular sect of

the said cult would certainly be a person interested

in seeing that his religious book ought not to be

forfeited on untenable grounds. The Special Bench of

the Madhya Pradesh High Court was pleased to hold as

under :

"We may observe that this test may not be

applicable to many other kinds of books, say

where a work of literary art is written and

published, every reader can not claim that he has

a personal interest. But the interest in our

opinion, ought to be substantial, which is

(-10-)

present in case of followers of the particular

sect of a particular cult."

5. In our opinion it will not be possible to place

such restricted meaning to the expression ’any person

having an interest’. The right of a citizen to be

informed is a part of our cherished fundamental right

of freedom of speech and expression. Even if Section

95 amounts to a reasonable restriction, yet the

Government must satisfy that the act of forfeiture

was according to law. A citizen therefore, having an

interest in the right to be informed, as a larger

part of his right of freedom of speech and

expression, will be a person having any interest.

Even otherwise after the judgment in Anbazhgan

(supra) the right of these petitioners as "persons

having an interest" cannot be denied. Our

fundamental freedoms contained in Part III, should

not be kept in wraps by using the outdated tool of

"locus standi". The Supreme Court has unwrapped the

expression locus standi, beginning Kamgar Union,

Fertilizers Corporation of Union of India, (1981) 1

S.C.C. 568. At any rate, the Code having not

defined the term, the Legislature had left it to the

wisdom and understanding of the times. Law is never

captive, it grows with the times. We therefore, have

no difficulty in rejecting the contention urged on

behalf of the Respondents by the learned Associate

(-11-)

Advocate General.

6. In so far as the challenge on merits is

concerned, on account of subsequent events, it is not

necessary to deal with the various challenges. The

requirement of passing an order of forfeiture of

a book, presupposes that the book contains any matter

the publication of which is punishable under Sections

124-A or 153(A) or 153(B) or 292 or 293 or 295A of

the I.P.C., for the State Government to declare that

every copy of such book be forfeited to the

Government. In other words the power can only be

exercised and the notification can only be issued if

the Government forms an opinion that the publication

contains matter which is in an offence under any of

the sections of the I.P.C. as aforestated.

. In the instant case, the notification issued on

dated 15.1.2004 has been withdrawn and the subsequent

notification of 28.12.2006, proceeds on the footing

that the publication of the Book was punishable under

Section 153A of the Indian Penal Code. After the

Petition was heard and posted for judgment the larned

counsel for the Petitioner as also the learned

Associate Advocate General informed the court of the

judgment passed by the Supreme Court in Manzar Sayeed

Khan Vs. State of Maharashtra and Others in Appeal

(Criminal) No. 491 of 2007 decided on 5.4.2007. The

(-12-)

Respondent State has been directed not to proceed

with the criminal proceedings against Professor

Laine, the Author of the Book including under Section

153A of the I.P.C. Whilst so holding, the court was

pleased to observe that the gist of the offence is

the intention to promote feelings of enmity or hatred

between different classes of people. The intention

to cause disorder or incite the people to violence is

the sine qua non of the offence under Section 153A of

IPC and the prosecution has to prove prima facie the

existence of mens rea on the part of the accused.

The F.I.R. filed against Professor Laine was under

Section 153, 153A and 34 of the Indian Penal Code.

The Supreme Court held that the writings in the Book,

"Shivaji, Hindu King in Islamic India" does not

constitute an offence under Section 153A of the

I.P.C. Once that be the case, the impugned

notification cannot stand and has to be struck down.

7. Apart from that, from the language of Section

153A of the Indian Penal Code, requires that the

words must promote or attempt to promote on grounds

of religion, race, place of birth, residence,

language, caste or community or any other ground

whatsoever, disharmony or feelings of enmity, hatred

or ill-will between different religious, racial,

language or regional groups or castes or communities.

The first notification issued by the State Government

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stated that the publication with reference to

material in the Book, has severely affected the

sentiments of the people, not only in the State of

Maharashtra, but in the entire country as Shree

Chhatrapati Shivaji Maharaj is held in high esteem as

a Rashtriya Purush and is revered by all and sundry

in the country irrespective of his own religion,

race, caste etc. This would indicate that it was the

opinion of the State itself that Chhatrapati Shivaji

Maharaj was revered by all persons in the country and

there was no group not holding him in high esteem.

This notification was withdrawn, and the second

notification came to be issued on 28th December,

2006. In this notification it is stated as under :

"AND WHEREAS. for the reasons aforesaid, the

Government of Maharashtra is of the opinion that

the circulation of the said Book containing

scurrilous and derogatory references against

Shri. Chhatrapati Shivaji Maharaj has resulted

in causing enmity between various communities and

has led to acts of violence and disharmony and

that any further circulation of the said Book is

likely to result in breach of peace and public

tranquillity and in particular between those who

revere Shri. Chhatrapati Shivaji Maharaj and

those who may not and cause disturbances to

public tranquillity and maintenance of harmony

(-14-)

between such groups and as such the said Book

should be forfeited."

. We called upon the learned Associate Advocate

General to show us any material in their possession

which would indicate, that the publication of the

book is causing enmity between various communities

and which were those communities. The learned

Associate Advocate General was unable to produce or

disclose any such material or which were the groups

based on religion, race,language or religion or caste

or communities who do not revere Shree Chhatrapati

Shivaji Maharaj. The only answer was, that the order

is based upon the grounds set out in the

notification. In our opinion, to make a legal order

under Section 95 of the Code of Criminal procedure,

apart from the fact that offence as set out therein

must be indicated, the notification must disclose the

grounds based on which the State has formed an

opinion, that the author by his publication sought to

promote or attempted to promote disharmony or feeling

of enmity between various groups as set out therein.

All that is pointed out to us is, that subsequent to

the publication of the book, there was an agitation

against Bhandarkar Oriental Research Institute, Pune

by members of an Association called as "Sambhaji

Brigade" and certain other people revering Shree

Chhatrapati Shivaji Maharaj. We pointedly asked the

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learned Associate Advocate General whether the

employees of the Bhandarkar Institute Pune

constituted that group or class. It was fairly

conceded before us that it was not so. Whether a

group of employees would constitute a group is not

required to be answered. In other words, there is

nothing on record to show that the publication was

likely to promote disharmony or feeling of enmity

between various groups, as likely to cause

disturbance to public tranquillity and maintenance of

harmony between various groups. Bhandarkar Oriental

Research Institute Pune, enjoys an international

reputation as a research institute in the State of

Maharashtra. It was unfortunate that for whatever

reasons the said institute was vandalized and

precious documents destroyed History is the loser.

9. We are, therefore, clearly of the opinion that

the impugned notification has to be quashed, both on

the ground that the publication does not disclose any

offence under Section 153A of the Code of Criminal

Procedure and also as there was no material to show

that the publication has resulted in disturbance of

public tranquillity or maintenance of harmony between

various groups as set out therein. Various

authorities were cited before us. In our opinion,

considering the subsequent events, and the Hon’ble

Supreme Court directing the State not to proceed

(-16-)

against the author of the Book Shri. James W. Lane.

We need not discuss those judgments. The

application/Petition filed by the Petitioner must be

allowed.

10. In fact after the judgment of the Supreme Court

holding that no offence was disclosed under Section

153-A of the I.P.C, the very basis on which the

Notification was issued no longer survived. In these

circumstances as a Government bound by the rule of

law, the State Government itself ought to have

withdrawn the Notification. That would have been the

proper constitutional course.

11. In the light of our discussion the impugned

notification dated 28.12.2006 is quashed and set

aside. The respondents are directed to forthwith

release all the books which were forfeited and seized

by the respondents.

(A.S.OKA,J.)(MRS.V.K.TAHILRAMANI,J.)(F.I.REBELLO, J.)

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