Supreme Court lifts ban on Laine book

IN Judgements | 01/08/2010

Upholding the judgement of the Bombay High Court that the Maharashtra government could not establish which groups would suffer enmity by the publication of James Laine's book on Shivaji,

Justices D K JAIN and H L DATTU of the Supreme Court revoked the ban on the book

REPORTABLE

                 IN THE SUPREME COURT OF INDIA

                 CIVIL APPELLATE JURISDICTION

                CIVIL APPEAL NO.5205 OF 2010

        [Arising out of S.L.P.(C) No. 8931 of 2007]

State of Maharashtra & Ors.             --         Appellants

                              VERSUS

Sangharaj Damodar Rupawate & Ors.       --        Respondents

                            J U D G M E N T

D.K. JAIN, J.:

     Leave granted.

2.This appeal, by special leave, filed by the State of Maharashtra

and its functionaries, arises out of the judgment dated 26th April,

2007 delivered by the High Court of Judicature at Bombay in Writ

Petition No.1721 of 2004.      By the impugned judgment, passed in an

application under Section 96 of the Code of Criminal Procedure,1973

(for short "the Code") read with Article 226 of the Constitution of

India, the High Court has set aside and quashed notification dated

20th December, 2006, issued in the name of Governor of Maharashtra in

exercise of the powers conferred by sub-section (1) of Section 95 of

the Code, directing forfeiture of every copy of the book captioned

as "Shivaji  Hindu King in Islamic India" written by one Prof.

James W. Laine.

3.The three writ petitioners, who are respondents No.1, 2 and 3

herein, are respectively stated to be a well known lawyer and a

public activist in the Ambedkarite movement, intended to mobilize

the deprived sections of the society; (ii) a well-known film maker,

whose documentaries are stated to be known the world over for their

artistic finesse, conveying democratic and secular message and (iii)

a social activist.        Respondents       No. 4 to 6 impleaded as such vide

this Court's order dated 29th August, 2007 respectively are Prof.

James W. Laine, the author of the book, Oxford University Press,

India, the publisher through its              Constituted Attorney Mr. Manzar

Sayed Khan and Mr. Vinod Hansraj Goyal, proprietor of Rashtriya

Printing Press, Delhi, the printer of the book.

4.For   the   purpose     of   appreciation    of   the    questions   raised,   the

foundational facts may be noticed.            These are:

        On 28th May, 2003, respondent No. 5, the publisher entered

into    an    agreement    with    Oxford     University     Press,    U.S.A.    for

publishing in India a paper-bound book entitled "Shivaji  Hindu

King in Islamic India" authored by Prof. James W. Laine (respondent

No.4), a Professor of Religious Studies, Macalester College, U.S.A.

The said book was originally published by Oxford University Press,

Inc., U.S.A.             As per the terms of the agreement, respondent No.5

agreed to reprint the book without any changes or deletions.                                In

all, 803 copies of the book were published i.e. 488 copies in June

and 315 copies in October, 2003 and was released in July 2003 and

215 copies were sold in the month of July itself.

         On       10th    November     2003,     the     publisher      (respondent       No.5)

received a letter from four historians whereby the publisher and the

author      had     been       asked   to    retract     the    objectionable       statement

complained         of    and    tender      an   apology.      Mr.     Manzar    Sayed    Khan,

expressed regrets for the said statement and informed the objectors

that instructions had been issued to all his offices in India to

immediately withdraw all copies of the book from circulation.                             After

withdrawal of the book from circulation, a mob at Pune blackened the

face   of     a    Sanskrit      Scholar     Shri    Shashikant      Bahulkar     whose    name

appeared      in    the    acknowledgement          of   the   book,    having    helped    the

author, Prof. James W. Laine, by providing him with some information

during his visit to Pune.                This incident was widely reported in the

press.      On 28th December, 2003, the author Prof. James W. Laine sent

a fax,      apologising for the mistake, if any, committed in writing

the passage and stated that he only was responsible for the said

statement written in the book, and the publisher was not at all

responsible for the same.              On 5th January, 2004, a mob of 100 to 125

persons    allegedly          belonging      to    the     Sambhaji      Brigade      ransacked

Bhandarkar Oriental Research Institute (BORI), Pune and destroyed a

large number of books and rare manuscripts.                        This incident was also

widely reported in the press.

          On    7th    January,   2004,      respondent         No.4,    the    author      in    an

interview, explained the reason for writing the book and expressed

deep anguish at the destruction of rare manuscripts and books in

BORI,    Pune.         Four   days     after      the    alleged    incident     i.e.     on     9 th

January,       2004,    the    State    of     Maharashtra,        the   appellant       herein,

registered a first information report (for short "FIR") at Deccan

Police Station, Pune, against respondents No. 4 to 6 i.e.                                   Prof.

James W. Laine, the author,                  Mr. Manzar Sayed Khan, the publisher

and     Mr. Vinod Hansraj Goyal, the printer of the book under Sections

153, 153-A and 34 of the Indian Penal Code, 1860 (for short "the

IPC").

          On 15th January, 2004, in exercise of powers conferred by sub-

section (1) of Section 95 of the Code, the Government of Maharashtra

issued     a      notification         declaring         that      every       copy    of        the

aforementioned book shall be forfeited to the Government.                             The said

notification was challenged in the Bombay High Court by respondents

No.1 to 3 herein.     However, during the pendency of the petition,

this notification was withdrawn and another notification dated 20th

December, 2006 was issued.    The notification reads as follows:

                    "GENERAL ADMINISTRATION DEPARTMENT

                        Mantralaya, Mumbai 400 032,

                       dated the 20th December, 2006

                             NOTIFICATION

       CODE OF CRIMINAL PROCEDURE, 1973.

          No. BAP-2004/422/C.R.113/2004/XXXIV.  Whereas, Shri

     Chhatrapati Shivaji Maharaj is revered by various sections

     of the people domiciled in the State of Maharashtra;

          And Whereas, the Oxford University Press having its

     office at YMCA Library Building, Jai Singh Road, New Delhi

     110 001, has in the Year 2003, published a book, captioned

     as "SHIVAJI  Hindu King in Islamic India" written by one

     Shri James W. Laine, having ISBN 019 5667719 containing 127

     pages (hereinafter referred to as "the said Book");

          And Whereas, the said author has in his said Book,

     made several derogatory references specified in the

     Schedule appended hereto regarding Shri Chhatrapati Shivaji

     Maharaj, in particular about his parentage and the Bhosale

     family to which he belonged;

          And Whereas, publication of the said Book containing

     the said derogatory references is prejudicial to the

     maintenance of harmony between different groups and has

     disturbed the public tranquillity;

          And Whereas, the publication and circulation of the

     said Book, has not only already resulted in causing enmity

     between the persons who revere Shivaji and other persons

     who may not so revere; but is likely to continuously cause

     such enmity;

          And   Whereas,    the   said   author  has   in   the

     "ACKNOWLEDGMENTS" to the said Book has expressed gratitude

     to the "Bhandarkar Oriental Research Institute, Pune" and

     the librarian and other Scholars therein;

     And Whereas, after publication of the said book, there

was agitation against the said "Bhandarkar Oriental

Research Institute, Pune", by members of an association

called as "Sambhaji Brigade" and certain other people

revering Shri Chhatrapati Shivaji Maharaj;

     And Whereas, for publication of the said Book, an

offence under sections 153, 153A read with Section 34 of

the Indian Penal Code has been registered in the Deccan

Gymkhana Police Station, Pune as C.R. No. 10 of 2004.

     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 between such groups

and as such the said 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), read with Section 21 of the

General Clauses Act, 1897 (10 of 1897) and of all other

powers enabling it in that behalf and in supersession of

the   Government   Notification,   General   Administration

Department, No. BAP-2004/422/C.R.113/2004/XXXIV, dated the

15th January 2004, the Government of Maharashtra hereby

declares that every copy of the said Book shall be

forfeited to the Government.

                           Schedule

     1.   "So when Shivaji opened his eyes on the world, he

was nurtured by a mother who had been deserted by her

husband and left to give birth in a hill fortress 60 kms.

North of Pune." (Introduction page 4).

     2.   "Looking back from the coronation in 1674, the

Killing of Afzal Khan in 1659 was not simply an act of

courage, it was premeditated violence in the service of the

Brahmanic world order." (Chapter II, The Epic Hero, page

25).

     3.   "Thus Shivaji could argue that his family should

not be classified a Kunbi peasant or shudra clan, but was,

in fact, related to Rajput, Aryan Kshatriyas. This led to

a general ambiguity about the status of all Marathas."

(Chapter IV "The Patriot", page 66).

     4.   "Here we have a kind of Brahmin prejudice that

Marathas might make admirably fierce warriors but will not

have prudence of the Brahmins. Thus Ranade argues that the

national movement drew on the talents and loyalty of all

classes, but he maintains the critical importance of the

Brahmins Ramdas and Dadaji in his narrative. (Chapter IV

"The Patriot", page 76).

     5.  "In other words, Shivaji's secularism can only be

assured if we see him as motivated less by patriotism than

by simple quest of power." (Chapter IV "The Patriot", page

77).

      6.   "Shivaji's parents were married under trying

circumstances.    They were children, and Jijabai's parents

opposed the match, considering themselves, as Jadhava

(Yadavas), to be too aristocratic to accept a groom from

the Bhosles, a clan not accepted as one of ninety-six upper

class    Maratha  families.  (Chapter  V  "Cracks   in  the

Narrative", page 91).

     7.   "The repressed awareness that Shivaji had an

absentee father is also revealed by the fact that

Maharashtrians tell jokes naughtily suggesting that his

guardian Dadaji Konddev was his biological father."

(Chapter V "Cracks in the Narrative", page 93).

     8.   "One could assume, as Sarkar did, that he

(Shivaji) agreed to go to Aurangazeb's court in Agra

because he had hopes (sic) of being made Mughal Viceroy of

the Deccan.   Had he received such an honour (sic), it is

doubtful that he would have planned a coronation eight

years later, but would have conducted his career much as

his father did as an Aadil Shahi noble and Governor of

Bangalore." (Chapter V "Cracks in the Narrative", page 99).

          By order         and   in    the   name       of    the       Governor    of

     Maharashtra,

                                                        MANISHA MHAISKAR,

                                         Joint Secretary to Government."

5.In view of the said development, with the leave of the Court, the

petition   was   amended     and      challenge    to     notification          dated    20th

December, 2006 was laid mainly on the grounds that: (1) there was no

material to show that the publication of the book had resulted in

disturbance of public tranquillity or maintenance of harmony between

various groups as set out therein, and (2) the publication does not

disclose   any   offence    under     Section     153-A      of   the    IPC.      Finding

substance in both the grounds, as stated above, by the impugned

judgment, the High Court has quashed and set aside the notification

dated 20th December, 2006 by observing thus:

     "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 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.    <