Book bans: Tale of three books

IN Media Freedom | 01/08/2010
Judicial pronouncements in three recent cases on book bans and curbs on books for allegedly causing enmity or communal disharmony have upheld freedom of expression in different ways,
making for an interesting study in contrasts, says GEETA SESHU

Coincidentally or otherwise, the judicial decisions delivered this year on three books by different authors that were banned or sought to be banned for causing enmity and disharmony between communities were located in Maharashtra and the response to all three is an interesting study in contrasts.

In the case of  James Laine’s "Shivaji - The Hindu King in Muslim India", the Bombay High Court as well as the Supreme Court of India struck down notifications banning them and the Bombay High Court struck down a criminal complaint against first-time writer Murzban Shroff’s book of short stories ‘Breathless in Bombay". In the third instance, the Bombay High Court upheld a ban on Supreme Court lawyer R V Bhasin’s "Islam — A concept of Political World Invasion".

Controversy dogged the publication of "Shivaji - The Hindu King in Muslim India", written by Laine, a professor of religious studies, in 2003, by the Oxford University Press in New York and New Delhi. In an atrocious act of vandalism, 150 cadre of the Sambhaji Brigade, a political outfit alleged to be close to the Nationalist Congress Party (NCP), ransacked the office of Bhandarkar Oriental Research Institute (BORI) in Pune and destroyed books and priceless historical documents on January 5, 2004.

Barely ten days later, the state government issued the ban on January 15, 2004 under section 95 of the Criminal Procedure Code, 1973. The section empowers the State government to forfeit the publication of any newspaper, book or document that run afoul of penal provisions under Sec 124A, Sec 153 A, Sec 153 B, Sec 292, Sec 293 or Sec 295 A of the Indian Penal Code(respectively dealing with sedition; promoting enmity between different groups on grounds of religion, race, place of birth, residence, language, etc; Imputations, assertions prejudicial to national-integration, obscenity and injuring with a view to insult a place of worship).

On April 26, 2007, Justices F.I. Rebello, V K Tahilramani and A S Oka of the Bombay High Court quashed the notification, 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.


(Click here to read judgement)


An appeal against this order was filed by the state government before the Supreme Court but the High Court’s judgement was upheld by a bench comprising Justices D K Jain and H L Dattu on July 8. The judgement stated that:


It is manifest that the notification does not identify the communities between which the book had caused or is likely to cause   enmity.  Therefore, it cannot be  found  out from the notification as to which communities got outraged by the publication of the book or it had caused hatred and animosity between particular communities    or    groups.   We   feel that the statement  in the notification to the effect that the 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" is too vague a ground to satisfy the afore-enumerated tests.


Moreover, the High Court has also noted that the learned Associate Advocate General was unable to produce or disclose any material or information    to    find   out   as    to    which     were  the   groups       based  on religion, race, language or religion or caste or communities who donot revere Shri  Chatrapati Shivaji Maharaj. If that be so, no fault can be found with the finding of the High Court to the effect that there is nothing on record on the basis whereof the Government could   form   the    opinion     that       the    book    was       likely    to    promote disharmony or feeling of enmity between various groups or likely to cause disturbance to public tranquillity and maintenance of harmony between various groups.


(Click here to read judgement)


For around a fortnight thereafter, political parties and political groups in Maharashtra condemned the Supreme Court’s judgement. While political parties like the Shiv Sena and the BJP pilloried the Cong-I and NCP run state government for their ‘failure’ to put forth a legal fight, other political groups  held demonstrations against the judgement and maintained that the book insulted Maratha sentiments was a conspiracy by Brahmins to malign the Maratha ruler, Shivaji.


The state government secured an assurance from the book’s publishers that the book would not be sold in the state and the storm over the judgement has, presently, died down.


Adv P A Sebastian, who argued the case before the Bombay High Court, says that hardly anyone who opposed the book by James Laine and demanded a ban on it, had read the book. Those who have, maintain that, in fact, the book lauds Shivaji as a hero. "But actually, when the book was banned, nobody bothered to protest it," he rued. There is a general fear or indifference about such issues and the Sambhaji Brigade’s protest gave people the feeling that popular reaction was in favour of a ban.


Adv Sebastian, who is a well-known civil liberties lawyer and head of the Committee for the Protection of Democratic Rights (CPDR), is no stranger to struggles for freedom of expression. For several years, he fought cases for Patwardhan to demand that the public service broadcaster, Doordarshan , telecast the latter’s award-winning films.


He strongly felt a petition should be filed challenging the ban. He asked several people if they were they were willing to file a petition, but they were reluctant. Finally, he approached documentary film-maker Anand Patwardhan.


Two other petitioners joined in – advocate Sanghraj Rupawate and social activist Kunda Pramila, incidentally a Dalit and a Maratha, respectively.  As Patwardhan said, "All of us represent different castes but that’s because we are for freedom of expression. We decided to make our petition as widely representative as possible for precisely this reason." 


Concurs Kunda Pramila, "It is undemocratic to ban or censor any content. Let readers decide the merits or de-merits of any argument. I am totally against any such ban."


The contents of the book and the allegations of those in favour of a ban that the book was a ‘Brahmin conspiracy’ to cast aspersions on Shivaji’s parentage simply did not figure in the arguments before the High Court, said Adv Sebastian, adding that Sec 95 is a ‘very drastic’ one, giving the state government the power to forfeit any publication that the government may ‘suspect’ can cause enmity between two groups.


Read along with Sec 96 (1) of the Code of Criminal Procedure, 1973, which states that any person having any interest in the publication or document may apply to set aside the declaration of forfeiture, Adv Sebastian argued that the petitioners’ freedom to gather knowledge and information was denied to them. He also argued that, when the state government contended that the publication of the book would cause enmity between two groups, it must be specific about the idenitity of these ‘groups’.


"Can anyone come forward and state that they do not revere Shivaji? Is there any ‘community’ that the state government can state will do so? On this basis alone, the notification was found to be invalid. Today, the Maharashtra Government has ensured that there are no sales of the book in the state and they can issue another notification banning it, but they will still have to mention the community that does not respect Shivaji," he said, adding that there was no question of either the Bombay High Court or the Supreme Court going into the content of the book.


Ban justified if it is a ‘mala fide exercise to stir communal passions’


Not so with the book written by R V Bhasin. On January 6, 2010, the Bombay High Court upheld a ban on a book by Supreme Court lawyer R V Bhasin entitled "Islam — A concept of Political World Invasion". The book, published in 2003, was banned on March 9, 2007, after a Maharashtra government notification. Bhasin challenged the notification before the High Court and a full bench comprising Justice Ranjana Desai, Justice Dr D Y Chandrachud and Justice R S Mohite, maintained that, while every person has a right to criticise, criticism must be healthy and not malicious.

However, if a book reeks of hatred for a particular community, if it contains rabid material and there appears to be no sincere handling of the subject but a malafide exercise to stir communal passions, one must pause and consider whether it is in the interest of general public to allow its circulation. In such a situation, the restriction imposed on the freedom of speech and expression by the Constitution must spring into action, the court observed.

In the case of Bhasin’s book, the court said: ‘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’


(click here to read judgement)


Upholding the ban, the judges said, that while the author was free to ‘criticize’ Islam, the criticism here was not academic and the author passed "insulting comments on Muslims with particular reference to Indian Muslims. That

is most objectionable". The judgement adds that the latter are painted as villains and talks of the inevitability of a war between Muslims and non-Muslims and asks: "With such exhortations, can we say that the book will not promote enmity between two religions or that it is not intended to outrage the religious feelings of Muslims or that it is not likely to create dis-harmony or feelings of enmity, hatred or ill-will between Hindus and Muslims?"


Citing the judgement on the Gopal Godse case, the judges felt that while the book was in circulation for a long time, it was not necessary to prove that ‘as a result of the objectionable matter enmity or hatred was in fact

caused between different classes. It is enough to show that the language of the writing is of a nature calculated to promote feelings of enmity or hatred.


No enmity or disharmony here


When Murzban Shroff published a book of short stories ‘Breathless in Bombay’, little did he imagine that it would be taken as a book promoting enmity and disharmony between Maharashtrians and North Indians!  


It all started when a private complaint filed by a social activist Vijay Mudras, before the Metropolitan Magistrate’s Court at Dadar in central Mumbai, alleged that Shroff had committed an offence under section 153-B of the Indian Penal Code as, in the short story titled ‘The House of Mine’, he had made scandalousand derogatory remarks on Maharashtrians by referring to them by the ‘derogatory and offensive’ word "Ghatti".


According to the complainant, the statements in the book were sufficient to cause disturbance and damage communal harmony. According

to the complainant, the term "Ghatti", when used by people from North India, has come to acquire a derogatory connotation. It was further alleged that the book titled "Breathless in Bombay" had a tendency of fomenting and promoting disharmony, feelings of enmity, hatred and ill-will on the grounds of place of work, residence and language.


Shroff was shocked when the magistrate upheld the private complaint and an FIR was lodged before local police on April 17,2009. He wrote to the police, clarifying his position. The slang ‘ghat’, was uttered by one character in a moment of drunkenness and he was even admonished for this by another character in the story. There was no intention to cause any sort of disharmony, Shroff said.


Satisfied by his explanation, the criminal complaint was disposed off by the magistrate on January 20, 2010. But Mudras filed a protest petition ten days later before the Magistrate and the latter directed the Social Service Branch of the Mumbai police to further investigate the matter.


In response, Shroff filed a petition before the Bombay High Court to quash the criminal complaint. Justice V M Kanade, who heard the matter, contended that ‘even if these paragraphs are read in isolation and out of context, then also they would not come within the purview of section 153-B’.


Justice Kanade upheld the author’s fundamental right to freedom of speech and expression and cited from the judgement by Vivian Bose in Bhagwati Charan Shukla v.Provincial Govt. (the effect of the words must be judged from the standards of reasonable, strong-minded, firm and courageous men, and not those of weak and vacillating minds, nor of those who scent danger in every hostile point of view....) and Justice Hidayatullah in the K A Abbas vs Union of India about the power of pre-censorship.


(click here to read judgement)


In the final analysis, as the indefagitable Adv Sebastian said, any book must be read in its entirety and banning a book is not an answer. "All it takes is for a few people to stand up and register a voice of dissent.






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