Freedom of expression important, yet ban is justified

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

IN ITS SPECIAL JURISDICTION UNDER

CR.P.C. SECTIONS 95 AND 96.

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.

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

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

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 :

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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:

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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:

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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

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

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

Reliance was placed on the judgments of this court in

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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

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

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

by the applicant cannot be imported in the Indian

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

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

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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.

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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

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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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

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.

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18. We must also reject the submission based on

was taken in violation of principles of natural justice. In

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,

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.

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

counsel.

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

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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