This is an extract of Judgment---“The applicant, who is an advocate, is the author of a book entitled “Islam – A concept of Political World Invasion By Muslims” (“the book”). In exercise of powers conferred by sub-section (1) of section 95 of the Code of Criminal Procedure, 1973 (“the Code”) the Government of Maharashtra issued a notification dated 9/3/2007 (“the Notification”) and declared that every copy of the book as well as of the translation thereof shall be banned and forfeited to Government.
In Nawabkhan, the Supreme Court set aside the 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.
Manzar Khan, Manzar Khan the appellant was a constituted attorney of Oxford University Press India which published a book entitled Shivaji Hindu King in Islamic India authored by Prof. Laine. The police registered FIR against the appellant and Prof. Laine under Sections 153, 153-A read with Section 34 of the IPC inter alia on the ground that the offensive paragraphs of the said book contained scurrilous attack on Shivaji Maharaj and the circulation of the said book has resulted in causing enmity between various communities and has led to violence and disharmony. While quashing the FIR, the Supreme Court observed that the gist of the offence under Section 153-A of the IPC is the intention to promote feelings of enmity or hatred between different classes of people.
In Gopal V. Godse, G.V. Godse, the petitioner was the brother of Nathuram Godse, assassin of Mahatma Gandhi. The petitioner was arrested along with Nathuram Godse for murder of Mahatma Gandhi and was tried along with him. He was sentenced to life imprisonment. He was released from jail on 3/10/1964. He wrote and published a book titled “Gandhi-hatya Ani Mee”. On 6/12/1967, Governor of Delhi issued a notification under Section 99-A of the Code of 1898 forfeiting every copy of the said book on the ground that it contains matter which promotes feelings of enmity and hatred between Hindus and Muslims, the publication of which is punishable under Section 153-A of the IPC. On 1/2/1968, the Government of Maharashtra republished the notification of the Delhi Administration. The petitioner challenged the said notification under Article 226 of the Constitution of India and under Section 99-D of the Code of 1898. The Special Bench set aside the notification. The Special Bench observed that the High Court cannot sustain an order of forfeiture on grounds other than those mentioned in the said order. The High Court cannot add to the grounds given by the State in the notification, but can simply review the book on merits, to determine if it is satisfied with the grounds given in the order of forfeiture.
In Harnam, a Constitution Bench of the Supreme Court was considering somewhat similar provisions of the Code of Criminal Procedure, 1898 (“the Code of 1898”). The Government of U.P. had passed an order under Section 99-A of the Code of 1898 forfeiting two books on the ground that they contained matter, the publication of which was punishable under Sections 153-A and 295-A of the IPC. The Supreme Court set aside the notification on the ground that for a forfeiture notification to be valid, there must be an opinion of the Government and the Government has to state the grounds of its opinion.
legal principles from the above judgments- “a) The Notification must state the grounds of the Government’s opinion. (Harnam, Narayan Das, Lalai Singh Yadav) b) A formal authoritative setting forth of the grounds is statutorily mandatory. Appendix cannot make up for grounds of opinion. (Lalai Singh Yadav) c) Mere repetition of an opinion or reproduction of the Section will not answer the requirement of a valid notification. (Narayan Das) d) Grounds must not be stated at learned length. In certain cases a laconic statement may be enough while in others more detailed reasons may be required. Grounds may be brief but cannot be blank. (Lalai Singh Yadav) e) Grounds of opinion must mean conclusion of facts on which the opinion is based. Grounds must necessarily be the import or the effect or the tendency of the matters contained in the offending publication either as a whole or in portions of it, asillustrated by passages which Government may choose, (Narayan Das’s case where the Supreme Court referred to the Calcutta High Court’s judgment in Arun Ranjan Ghose with approval). f) The High Court must set aside an order of forfeiture if there are no grounds of opinion because if there are no grounds of opinion, it cannot be satisfied that the grounds given by the Government justified the order. If in such case, the High Court upholds the order, it would mean that the High Court itself made the order which the High Court cannot do. (Harnam) g) The High Court must set aside the order of forfeiture if it is not satisfied that the grounds on which the Government formed it’s opinion justify that opinion. (Harnam) h) The validity of the order of forfeiture would depend on the merits of the grounds. It is not the duty of the High Court to find out for itself whether the book contained any such matter whatsoever. The High Court cannot make a roving enquiry beyondthe grounds set forth in the order. (Harnam) i) The State cannot extract stray sentences of portions of the book and come to a finding that the said book as a whole ought to be forfeited. (Baragur) j) The matter charged as being within the mischief of the relevant sections of the IPC must be read as a whole. One cannot rely on stray, isolated passages for proving the charge nor indeed can one take a sentence here and a sentence there and connect them by a meticulous process of inferential reasoning. (Gopal Godse, Special Bench, Bombay High Court.) k) Section 295-A of the IPC does not penalize any and every act of insult to or attempt to insult the religion or religious beliefs of a class of citizens. There must be a malicious or deliberate intention to outrage the religious feelings of a class of citizens. (Ramji Modi, Balwant Singh, Manzar Khan, Bhagwati Charan Sharma Nagpur High Court, Gopal Godse Special Bench, Bombay High Court.) l) Intention of the author has to be gathered from the language, contents and import of the offending material. (Baragur, Gopal Godse Special Bench, Bombay High Court). m) If the purpose of writing the book was a historical research based on a number of reference books and other material, it would be difficult for the State to contend that simple narration of history would promote violence, enmity or hatred. (Varsha Publications, Special Bench, Bombay High Court.) n) If the allegations made in the offending article is based on folklore, tradition or history something in extenuation could perhaps be said for the author. (Baragur) o) If the writing is calculated to promote feelings of enmity or hatred, it is no defence to a charge under Section 153-A of the IPC that the writing contains a truthful account of past events or is otherwise supported by good authority. Adherence to the strict path of history is not by itself a complete defence to a charge under Section 153-A. (Gopal Godse, Special Bench, Bombay High Court). p) Section 95(1) of the Code requires that the ingredients of the offences should appear to the Government to be present. Section 95 does not require that it should be proved to the satisfaction of the Government that all requirements of punishing sections including mens rea were fully established. (Baragur, Nandkishore, Special Bench of Patna High Court). q) The onus to dislodge the prima facie opinion of the Government that the offending publication comes within the relevant offence including its requirement of intent is on the applicant and such intention has to be gathered from the language, contents and import thereof. (Nandkishore, Special Bench of Patna High Court, approved in Baragur.) r) It is not necessary to prove that as a result of the objectionable matter enmity or hatred was in fact caused between the 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. (Gopal Godse, Special Bench, Bombay High Court.). s) For judging what are the natural or probable consequences of the writing, it is permissible to take into consideration the class of readers for whom the book is primarily meant as also the state of feelings between the different classes or communities at the relevant time. (Gopal Godse, Special Bench, Bombay High Court.) t) Whether the objectionable matter is meant for limited circulation, whether it is to cater to ignorant, illiterate inflammable mob or educated people would be a relevant consideration. (Bhagwati Charan Sharma – Nagpur High Court). u) The effect of the words must be judged from the standards of reasonable strongminded, firm and courageous men and not those of weak and vacillating minds, nor of those who scent danger in every hostile point of view. (Ramesh v. Union of India, AIR 88 SC 775, Manzar Khan, Bhagwati Charan Sharma – Nagpur High Court.)”
There can be no debate over the legal propositions. But, the law does not require verbatim reproduction of the section. In our opinion, the Notification does not lack the basic ingredients. The Notification identifies the classes of people who are likely to be affected by the book as Muslims and non-Muslims. It quotes the derogatory references to Muslim religion and inter alia states that the said references are likely to create hatred against Muslims in the minds of non-Muslims thereby promoting enmity between classes.
Freedom of speech and expression is a cherished right of every citizen. Every person has a right to express what he/she feels about any issue which according to him/her needs to be debated upon or brought before the public eye. Freedom of expression would also include freedom to criticize. Indian democracy has survived because of the protection its Constitution has granted to its people to express freely their views on affairs of the State and on other issues concerning religion, culture, civilization, literature and personalities, which are beyond the mundane affairs of the State. This list is merely illustrative and not exhaustive. Fearlessness is the hallmark of a vibrant, democratic and secular society like ours. While we have a right to criticize 80 each other, the criticism has to be healthy and not malicious. It must not lead to creating ill-will and hatred between different communities. Freedom of expression must be well utilized, it must lead to sensible dialogue but not senseless destruction of lives and property and breach of public order.
In Lalai Singh, the Supreme Court while stressing the importance of freedom of speech and expression observed that our Constitution makers respected Mill’s 81 famous statement from his essay “On Liberty” as under: “If all mankind minus one were of one opinion and only one person were of the contrary opinion, mankind would be no more justified in silencing that one person than he, if he had the power would be justified in silencing mankind”. The Supreme Court then quoted Voltair’s inspired assertion : “I disapprove of what you say, but I will defend to the death your right to say it”. (Attributed to Voltair in S.G. Tallentyre. The Friends of Voltair 1907). Having quoted the above passages, the Supreme Court turned to passages from Gitlow v. New Yor (1924) 69 Law ed 1138, which were quoted by Dr. Ambedkar in the Constituent Assembly. We may reproduce them: “It is a fundamental principle long established, that the freedom of speech and of the press, which is secured by the Constitution does not confer an absolute right to speak or publish, without responsibility, whatever one may choose or an unrestricted and unbridled licence that gives immunity for every possible use of language and prevents the punishment of those who abuse this freedom”. “That a State in the exercise of its police power may punish those who abuse this freedom by utterances inimical to the public welfare, finding to correct public morals, invite to crime or disturb the public peace, is not open to question ....”
In this connection, he has relied on an unreported judgment of the Supreme Court dated 30/8/1999 in Shiv Kumar v. Hukum Chand & Anr. In that case, the appellant/complainant 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 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.”
Islam – A concept of Political World Invasion By Muslims” pls tell me as to where can i buy this book??
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