"I realise that some of my criticisms may be mistaken; but to refuse to criticize judgements for fear of being mistaken is to abandon criticism altogether... If any of my criticisms are found to be correct, the cause is served; and if any are found to be incorrect the very process of finding out my mistakes must lead to the discovery of the right reasons, or better reasons than I have been able to give, and the cause is served just as well."

-Mr. HM Seervai, Preface to the 1st ed., Constitutional Law of India.

Wednesday, July 14, 2010

Ban a book, keep the trouble out and the votes in

Case Comment on State of Maharashtra v. Sangharaj Damodar Rupawate. Decided on 09-07-10 by the SCI
(Judgment affirming the HC decision of quashing the direction of forfeiture of the book “Shivaji – Hindu King in Islamic India”)
It has been an easy way out for most of the Governments to ban any controversial publication and be on the safe side than protecting the freedom of speech and expression, which is constitutional mandate. Section 95 of the Cr. P.C is resorted to for ban of publications which appear to be containing a matter punishable under sections 124A, 153A, 153B, 292, 293, 295A of the Indian Penal Code, 1860. The State Government by a notification stating the grounds of its opinion, forfeit every copy of the document. Power is vested in the police to search and seizure such documents.
At a flash of any controversy, raised usually by fundamentalist outfits with fascist ideologies, about any work, the States silence the soft target- the author/publisher. Government always takes the plea of creation of hatred among the communities and slap charges under IPC against author/ publisher/ printer. Ironically, the same state which has the mandate to protect the freedom. Similar pattern was followed in this case as well. In the instant event where the reprehensible act of vandalism and burning of invaluable historic documents by Sambhaji Brigade, it is yet to come to light what action has been taken against the outfit and whether those action reached its logical conclusion. So much for the cherished freedom of free speech and expression! It is politically rewarding to ban a book and keep the potential voters in good humour than adorning the mantle of protector of fundamental rights.
The publisher of the book in the instant case got the FIR quashed and moved the HC under section 96 of Cr.P C and Art. 226. The HC nullified the forfeiture order against which this appeal was preferred.
The SC decision is an attempt to put some sense in the State Governments while issuing forfeiture orders henceforth. It has pointed out certain basic requirements to be followed and distinguished ‘opinion’ and ‘grounds’ that figure in section 95. The Government may have multiple opinions but requirement for an order under section 95 has to be clear about the grounds as to why the forfeiture is declared. It has to be based on certain solid foundations not on mere presumptions and surmises that there would be communal hatred and law and order problem.
The court has laid down course of action to deal with section 96 petitions as given below.
  1. The statement of the grounds of its opinion by the State Government is mandatory and a total absence thereof would vitiate the declaration of forfeiture.
  2. Grounds of opinion must mean conclusion of facts on which opinion is based.
  3. The validity of the order of forfeiture would depend on the merits of the grounds.
  4. 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.
  5. The intention of the author has to be gathered from the language, contents and import of the offending material.
  6. 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 kind 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 of the IPC.
  7. Section 95(1) of the Code postulates that the ingredients of the offences stated in the notification should “appear” to the Government to be present. It 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
  8. The onus to dislodge and rebut the prima facie opinion of the Government is on the applicant.
  9. The effect of the words used in the offending material 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. The class of readers for whom the book is primarily meant would also be relevant for judging the probable consequences of the writing.
My attention was drawn towards the last part of point 6 (Adherence to the strict path of history is not by itself a complete defence to a charge under Section 153-A of the IPC). It was unnecessary for the court to make such an opinion in this case where charge under section 153 is not an issue. Though it is a mere obiter, for a future judge this could be an indicator to read-in additional meaning to the words of Article 19 (2). Disowning history is never a creditable character for any civilisation.
The apprehension raised against the appeasement policies of the Governments is proved right by the declared stand of the State of Maharashtra. Soon after the judgment, the Government have reiterated its resolve to pass a legislation ‘to prevent defamation of state icons’ that state could continue its practice despite the judgment, which in effect will be censorship. It has thereby taken a public stand against academic freedom and fundamental rights.

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