No material to show disharmony or enmity: James Laine book
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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dated 15.01.2004 had been withdrawn forthwith.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
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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
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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
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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
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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
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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
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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.)