Sunday, March 20, 2011
Monday, March 14, 2011
The Indian Constituent Assembly
BY Prof. M. VENKATA RANGAIYA M.A.
In commending to the All-India Congress Committee the ratification of the acceptance of the Cabinet Plan by the Working Committee, Mahatma Gandhi observed thus: “The proposed Constituent Assembly is not a free Assembly. There are many defects in the scheme, but since we have been fighting for the last so many years, why should we be afraid of defects?” In winding up the proceedings of the All-India Congress Committee on 8th July, Pandit Nehru stated as follows: “If I am asked to give my own point of view, I would say it (the Assembly) is not obviously something which we have desired and worked for. There are many difficulties and snags, and the scales are weighted against us. On the other hand, it is obvious also that it is not so bad....When India is free, India will do just what she likes….I do think that sometime or other in the future, we may have to summon our own proper revolutionary Constituent Assembly. That does not mean we should not take advantage of this and work it out to our own advantage.” It is clear from observations like these that, in the opinion of our national leaders, the Assembly in its present form and structure is rather defective and that we have to accept it only as a compromise, as we are at present not strong enough to dictate to all the parties concerned and get the kind of Assembly which we really need. In order to clarify this point a few observations may be made on the nature of the Constituent Assembly that is now meeting for framing the future constitution of the country.
1. This Assembly is something different from the kind of Constituent Assembly that has all along been demanded by the Congress–the only organization in the country that has been insisting on the right of India to have her constitution framed through such an Assembly. Twelve years ago in June 1934, the Working Committee resolved thus: “The only satisfactory alternative to the White Paper is a Constitution drawn up by a Constituent Assembly elected on the basis of adult suffrage or as near it as possible, with the power if necessary, to the important minorities to have their representatives elected by the electors belonging to such minorities.” At Tripuri the Congress resolved as follows in 1939: “The Congress declares afresh its resolve to achieve independence for the nation and to have a constitution framed for a free India through a Constituent Assembly, elected by the people on the basis of adult franchise and without any interference by a foreign authority. No other Constitutions or attempted solutions of the problem can be accepted by the Indian people.” In November 1939, the Working Committee passed the following Resolution. “The Committee wish to declare again that the recognition of India’s independence and of the right of her people to frame their constitution through a Constituent Assembly, is essential in order to remove the taint of imperialism from Britain’s policy and to enable the Congress to consider further co-operation……The Constituent Assembly should be elected on the basis of adult suffrage……” The resolution of the Working Committee on Cripps’ proposals in 1942 stated thus: “Even the constitution-making body is so constituted that the people’s right to self-determination is vitiated by the introduction of non-representative element. The complete ignoring of the ninety millions of the people of the Indian States and their treatment as commodities at the disposal of their rulers is a negation of both democracy and self determination. While the representation of an Indian State in the constitution-making body is fixed on a population basis, the people of the States have no voice in choosing those representatives, nor are they to be consulted at any stage while decisions really affecting them are being taken.”
It is clear from these resolutions that the Congress has all along been demanding a Constituent Assembly elected on the basis of adult suffrage by all the people of the country–in British India as well as in the States. It has always argued that it is the only democratic method of electing a constitution-making body and that only a body so elected would frame a democratic constitution for the country. The Assembly that has now been constituted is not elected by all adults. They have been elected indirectly by that small body of voters forming about 15% of the total population of British India enjoying franchise under the Government of India Act of 1935. And it is not known whether the people of the States will have any voice in choosing the States representatives. Even the Cabinet Delegation recognised the propriety of having the Assembly elected by adult suffrage in the following observations it made: “In forming any Assembly to decide a new constitutional structure the first problem is to obtain as broad-based and accurate a representation of the whole population as is possible. The most satisfactory method obviously would be by election based on adult franchise but any attempt to introduce such a step now would lead to a wholly unacceptable delay in the formulation of the new Constitution.” It is to avoid delay that Provincial Legislative of Assemblies had to be utilised as electing bodies. Perhaps, it is for the same reason that the Congress also accepted this mode of election and abandoned an important democratic principle. It remains to be seen whether the body thus elected will frame a really democratic constitution, especially when it has among its members the representatives of the Muslim League which does not believe in democracy being a suitable form of government for India, and the representatives of the States who are mostly nominated by the rulers.
2. The Indian Constituent Assembly is wanting in homogeneity. It contains within it a number of heterogeneous elements and some of these have a distinctly communal outlook. Communalism has been the bane of Indian politics ever since the introduction in 1909 of separate or communal electorates. The essence of communalism consists in the preference shown by an individual to the interests of his community over the interests of the nation, and in elections to any office being determined not by the personal merits of the candidates concerned but by the communities to which they belong. In a vast country like India with a population of four hundred millions, there is nothing surprising in people being divided by differences of race, religion, language and culture into numerous communities. But the mistake lies in regarding these communities as having no common political interest and taking them as units for determining the composition and structure of political institutions. It is now a matter of common knowledge that this was deliberately done by the British as a part of their policy of ‘Divide and Rule’. It took the form of communal electorates which were originally restricted to the Muslims but subsequently extended to the Sikhs, the Indian Christians, the Anglo-Indians and the Scheduled classes (in a modified form) even though, all along, the British authorities have been condemning them as undemocratic. The British should have realised by this time that genuine democracy would not be possible unless the system of communal electorates is abandoned. The Cabinet Delegation really showed a good deal of boldness in not including the Christians, the Anglo-Indians, the Scheduled classes and the aborigines among the ‘main’ communities and in merging them in the ‘General’ community. As Mahatma Gandhi pointed out, this was really an advance on the policy traditionally followed by the British. But the Delegation had not the courage to merge the Muslims also in the ‘General’ community for political purposes and to recognise, what almost every political thinker now recognises, that it is best that the distinction between ‘Nation’ as a cultural group and ‘Nation’ as a political group is observed. By such merging the real interests of the Muslims would not have suffered at all. The system of proportional representation would have secured to them their full quota of representatives. Now that they have been returned only by the members of their own community, there is no moral necessity for them to look at questions coming before the Assembly from the stand-point of non-Muslims also. They become a separate section and will fight for their separate interests. In this connection it is well to remember that the communal outlook has become so all-pervasive that even the Congress which claims to be a national body finds it impossible to completely ignore it. In all the resolutions passed by it on the subject of the Constituent Assembly, it expressed itself in favour of separate electorates in the case of communities that demanded them. And in the directive which the Working Committee issued to the Premiers in the Congress Provinces regarding the selection of candidates to the Constituent Assembly, it called on them to give consideration to the special claims of minorities like the Harijans, the Indian Christians, the Anglo-Indians and women. The result is that, in the actual choice of candidates, communal considerations played a much more important part than the personal merits of the candidates or their services to the country. Even the Congress, therefore, should be prepared to rise above these communal considerations. Otherwise there is a great danger of communalism creeping into the constitution that the Assembly has to frame. One of the most important questions that the Assembly will have to solve is that of Joint versus Separate Electorates. It is only a robust national outlook that will give a right solution to this question.
The presence of a number of nominated representatives of the States is another factor that makes the Constituent Assembly heterogeneous in its character. On many questions of fundamental importance their outlook is different from that of the representatives elected by the people of British India. This adds to the complexity of the situation. To add further to this complexity, there are several individual members on the Constituent Assembly who do not technically belong to any of the major or parties, even though they secured their election through the support of these parties. Many of them are eminent as jurists and as administrators and scholars of wide experience. But the defect with such eminent people is that they may not be prepared to easily surrender their individual convictions to the demands of party discipline, and a great deal of skill has to be shown by party leaders in handling them.
3. It is considered to be a merit of the Constituent Assembly that it consists of only Indians. There are no British or any other non-Indian members on it. In this respect it is an improvement on the Round Table Conference. But it is only physically that the British are out of the Assembly. Politically they are in it and they are bound to exercise a large amount of influence on its deliberations and decisions. This is due to the fact that, while the Assembly is sitting and carrying on its work, the British will continue to be the sovereign rulers of the country. All Governmental power will be in their hands, and who can deny the scope that is always open to those in power to do good or evil? One should not forget in this connection that the British will continue to exercise the rights of paramountcy over the Indian States during the interim period. This means that through the Residents they can influence the opinions of the rulers of the States and their nominees on the Assembly. Very many of these nominees will serve as mouthpieces for the British. Moreover, among the Dewans of Indian States there are several who in their political and official career have so completely identified themselves with the British authorities that it will be difficult for them now to look at things from a non-British and nationalistic standpoint. No man can completely get rid of his past. It follows him like his own shadow, however unconscious he might be of it. This is not to question the patriotism or the sincerity of the representatives of the States, but to remind ourselves that an Assembly consisting only of Indians need not necessarily be free from British influence under existing circumstances.
4. The Constituent Assembly is not constructed so as to facilitate quick decisions. This is due to the presence of heterogeneous elements on it and to the fact that no one element commands a working majority on it. It is true that, at the start, the Congress party will be in a majority, if by that time the representatives of the States do not join the Assembly. In a situation like this, it may become difficult to achieve agreement on the kind of constitution to be framed for the Indian Union, the Congress and the League being generally in mutual opposition, with the States’ representatives trying to hold the balance between them. Of course, there is less of this danger in the framing of Constitutions for the Provinces and for the Groups, as at that stage the work is done not by the Assembly as a whole but by the members of each section sitting separately. In sectional meeting the Congress will have a majority in Section A, while the League has a majority in Sections B and C.
The danger of prolonged debates and discussions leading perhaps even to stalemates and deadlocks looks to be all the greater owing to the particular procedure that the Cabinet Delegation has laid down in advance for the Assembly. The Statement of May 16th issued by the Delegation says thus in Para 19. VII: “In the Union Constituent Assembly resolutions varying the provisions of paragraph 15 (containing the basic provisions for the future Government of India) above or raising any communal issue shall require a majority of the representatives present and voting of each of the two major communities. The Chairman of the Assembly shall decide which (if any) of the resolutions raise major communal issues and shall, if so requested by a majority of the representatives of either of the major communities, consult the Federal Court before giving his decision.” The Cabinet Delegation was not prepared to agree to the view of the Congress Working Committee that the above procedure should be followed only in respect of major communal discuss. The provisions of para 15 relate to a number of questions on which acute controversies have already arisen. Among them are the questions relating to the powers of the Indian Union, and the grouping of Provinces. The Congress and the League are diametrically opposed to each another in regard to these questions. The condition that they can be decided only by the votes of the majority of each of the communities will surely result in inordinate delay. And in respect of what a major communal issue is references to the Chairman and to the Federal Court will be inevitable and will also result in delay. Not that delay is bad in itself: hurried discussions may be more dangerous. But the danger to be apprehended is that even prolonged discussions may not lead to final decisions. The kind of stalemate that characterised the talks at Simla in 1945 and 1946 may overtake the deliberations of the Assembly. This danger appears to be all the greater, as some parties in the Assembly may be led to expect that the British, who will still be in power in the country, will intervene, and resolve the deadlock by issuing awards.
It is not merely the procedure laid down by the Cabinet Delegation and the party alignments in the Assembly that may stand in the way of speedy disposal of business. The attitude of the Indian States towards the decision of questions coming up for consideration also leads to the same conclusion. It appears to be the view of the States that any major issue specially affecting them should be decided by a majority not of the Assembly as a whole but of the representatives of the States present and voting. The difficulty here as well as in the case of major communal issues is in drawing a clear line of distinction between what affects the nation as a whole and what affects the particular community or the States. But if such a procedure is insisted upon by the States, it may take several years for the Constituent Assembly to complete its work.
The truth of the matter is that rules of procedure like these transform the Assembly into a bicameral or a tricameral chamber–the Muslim section forming one House, the General Section another, and the States a third. It is only in name that the Assembly will be a single Assembly; in practice it will have to work in three sections. To insist on the securing of unanimity among them all, before major decisions are arrived at, is to encourage deadlocks. No Constituent Assembly so far known to history has this bicameral or tricameral character about it. Different parties are bound to exist in every assembly, but no great harm arises out of it so long as decisions are ultimately arrived at by the normal democratic procedure of ‘one man, one vote’. The working of the ‘Double Majority’ principle even in matters of ordinary legislation produced disastrous results in Canada in those days when the French and the English were regarded as two distinct communities and experience taught them to abandon that principle. It is well to recall in this connection the fact that the first great revolutionary act in France during the Revolution of 1789 was the decision of the States General which consisted of three separate houses or ‘orders’ to vote as one single National Constituent Assembly in which each question should be decided by a majority of such votes. It is this decision that made possible the framing of a new Constitution.
5. In almost all cases where Constituent Assemblies were convened to frame new constitutions, there was (1) the conquest of power from the authority that previously held it, and (2) setting up next of a provisional government with complete control over the administration of the State. It is such provisional governments that made arrangements for the calling of Constituent Assemblies and for their effective functioning. In respect of the Indian Constituent Assembly the process is exactly the reverse. There is first the Assembly convened by the very authority from which power has to be captured. The Interim Government is not a provisional government; it is not a government fully sovereign and responsible to an elected legislature but to the Governor-General under the Government of India Act of 1935. The actual transfer of power is to come last when the Assembly frames the Constitution and a new government is set up in accordance with that Constitution.
In all the resolutions so far passed by the Congress on the Constituent Assembly the process contemplated was the one that was followed in all other countries. The famous resolution–the ‘Quit India’ resolution–passed on 8th August, 1942 is clear on this point. It states: “The A.I.C.C. repeats with all emphasis the demand for the withdrawal of British Power from India. On the declaration of India’s independence a Provisional Government will be formed……The Provisional Government will evolve a scheme for a Constituent Assembly which will prepare a constitution for the government of India acceptable to all sections of the people.” The present Constituent Assembly is not the outcome of the process contemplated in this resolution.
It may be asked whether the absence of a Provisional Government holding real power makes any difference to the effective functioning of the Assembly. It does make a good deal of difference. It has already been pointed that the nature of power is such that those who wield it are in an indisputable position to bring under their influence several sections of the people of the country and, through them, several members of the Assembly itself. Men are not entirely rational. They are not always swayed by the highest ethical considerations. Many of them easily succumb to power. And this is the danger arising out of the continuance of British power while the Assembly is sitting. Unconsciously, and perhaps unintentionally, the British will continue to pursue their old policy of ‘Divide and Rule’ and put from behind the wires of the Assembly. A Provisional Government is absolutely necessary to prevent all this. Moreover, the revolutionary atmosphere surrounding to be deliberations of the Assembly and the excitement caused by the course of discussions and debates in it may even provoke disturbances outside. The task of maintaining peace and order will then fall on British authorities. A situation may arise–as it did in many other countries of the world–when the alternative is to suspend the meetings of the Assembly or to use a great deal of force to suppress disorders. In such an intriguing situation the presence of a Provisional Government with real authority and commanding the confidence of the people will be of the greatest service. Otherwise, the very existence of the Assembly may be in jeopardy.
One other point may be noted in this connection. No assembly can function unless there is a steering committee to guide its deliberations and take the initiative in putting forward desirable proposals. The body that is most suited for a purpose like this is the Provisional Government. This is just what happened in the case of several constituent assemblies elsewhere. The Provisional Government should occupy the same position in relation to the Constituent Assembly as the British Cabinet does in relation to Parliament. Otherwise, it will be difficult to obtain complete co-ordination of work. In several countries the Assemblies even appointed Provisional Governments before they took to constitution-making. Without such a government backing it, the Assembly may turn out to be a glorified debating society.
6. The question is often asked whether the Indian Constituent Assembly is a sovereign body. Different opinions have been expressed on this point, though in discussions like these it is best to avoid terms like ‘sovereign’ and, ‘sovereignty’, which are vague and ambiguous. What exactly the framers of this question have in their minds is whether the Assembly is free to frame any constitution it likes and put it automatically into effect. One has to say in answer to this that the freedom of the Assembly is not complete and that it is restricted in a number of ways. In the first place, the basic principle on which the Assembly has to frame the constitution have been laid down by the British Cabinet Delegation in the Statement which it issued on May 16th, 1946. The Statement says, for instance, that (1) There should be a union of India embracing both British India and the States: (2) The Union should deal with the subjects of Foreign Affairs, Defence and Communications (only): (3) It should have the powers necessary to raise the finances required for the above subjects: (4) The Union should have an Executive and a Legislature Constituted from British Indian and States representatives: (5) Any question raising a major communal issue in the Legislature (of the future) should require for its decision a majority of the representatives present and voting: (6) All subjects other than the Union subjects and all residuary powers should vest in the Provinces: (7) The States will retain all subjects and powers other than those ceded to the Union: (8) Provinces should be free to form Groups with executives and legislatures. (9) Each group could determine the provincial subjects to be taken in common. (10) The Constitution of the Union and of the Groups should contain a provision whereby any Province could, by a majority vote of its Legislative Assembly, call for a reconsideration of the terms of the Constitution after an initial period of ten years and at ten yearly intervals thereafter. These principles should form, in the opinion of the Cabinet Delegation and the British Government, the broad basis of the future Constitution of the Country.
Besides this the Cabinet Delegation’s Statement has laid down the procedure that has to be adopted by the Constituent Assembly, in carrying out its work. (1) The representatives chosen to the Assembly shall meet at New Delhi. (2) A preliminary meeting will be held at which the general older of business will be decided, a Chairman and other officers elected, and an advisory committee on the rights of citizens, minorities, and tribal and excluded areas set up. (3) Thereafter the provincial representatives will divide up into three sections. (4) These sections shall proceed to settle the Provincial Constitutions for the Provinces included in each section. (5) They shall also decide whether any Group Constitutions shall be set up for those Provinces, and, if so, with what Provincial subjects the Group should deal. (6) The representatives of the sections and the Indian States shall re-assemble for the purpose of settling the Union Constitution. (7) In the Union Constituent Assembly resolutions varying the basic principles of the Constitution noted in the paragraph above or raising any major communal issue shall require a majority of the representatives present and voting of each of the two major communities. (8) The Chairman of the Assembly shall decide which (if any) of the resolutions raise major communal issues and shall, if so requested by a majority of the representatives of either of the major communities, consult the Federal Court before giving this decision.
In addition to all this a special direction is given in regard to the future relations between Provinces and groups. The Statement lays down that as soon as the new Constitutional arrangements have come into operation, it shall be open to any Province to elect to come out of any Group in which it has been placed and that such a decision shall be taken by the new Legislature of the Province after the first general Election under the new Constitution.
In explanation of the Statement of May 16th the Cabinet Delegation issued another Statement on May 25th in which they observed thus: “The authority and the functions of the Constituent Assembly, and the procedure which it is intended to follow are clear from the Cabinet Delegation’s Statement. Once the Constituent Assembly is formed and working on this basis, there is no intention of interfering with its discretion or questioning its it labours.” The implication of this observation is that the Assembly has no right to proceed with its work on any other basis than that laid down in the Statement of May 16th. If it rejects this basis the British Authorities reserve to themselves the right of interfering with its work whatever this ‘interference’ may mean. Mahatma Gandhi also expressed the opinion that this view of the matter was the correct one, in the sense that those who became delegates to the Assembly well knowing the contents of the Statement of May 16th were expected by the authors to abide by the basis unless it was duly altered by the major parties. The proposals in this Statement should be looked at as constituting an award, although some of the members of the Delegation declared them to be recommendations. The Constitution which the Assembly has to frame should be in strict accordance with the Nine Principles referred to above, and the procedure it has to adopt should be in conformity with the procedure laid down for it by the Cabinet Delegation. As if to remove all doubts on this question the Secretary of State for India observed as follows in the Statement he made in the House of Lords on 18th July: “Having regard to the Statement of May 16th and the Constituent Assembly elected in accordance with it, they (the Indian Parties) cannot, of course, go outside the terms of what has been agreed to. That would not be fair to the other parties who go in, and it is on the basis of that agreed procedure that the British Government has said they will accept the conclusions of the Constituent Assembly”. It may frame supplementary Rules of procedure but no Rule that it frames should be opposed to that laid down by the Delegation. From this stand-point one has to conclude that the Assembly is not a sovereign body. It is not free to frame any kind of Constitution it likes or adopt any kind of procedure it wishes.
It has, however, to be pointed out that it is open to the Constituent Assembly to alter the fundamental proposals and the procedure laid down in the Statement of May 16th if the two major communities are agreed on such alteration. If such an agreement is forthcoming, it will be possible, for instance, to increase the number of subjects falling within the jurisdiction of the Union or do away with Sectional Meetings of the Assembly. But the question is whether there are any prospects of such agreement in the Assembly with its present composition and structure. The prospects are rather remote. The factors that stood in the way of agreement during the Simla talks in 1945 and 1946 are still in operation. It, therefore, follows that the Assembly’s right and power to alter the proposals and the procedure contained in the Statement of May 16th are only of a theoretical character. They will not be of much use in practice. The Assembly’s freedom is rather a restricted one.
This freedom is restricted not only in respect of the Constitution it has to frame but also in regard to putting into effect the Constitution which it frames. This Constitution does not come automatically into operation. The transfer of power by the British to the New Government that will be set up under this Constitution is subject to at least two conditions. The Cabinet Delegation’s Statement of May 25th says thus: “His Majesty’s Government will recommend to Parliament such action as may be necessary for the cession of sovereignty to the Indian people, subject only to two matters which are mentioned in the Statement (of May 16th) and which we believe are not controversial, namely, adequate provision for the protection of the minorities and willingness to conclude a treaty with His Majesty’s Government to cover matters arising out of the transfer of power”. This implies that until and unless the British are satisfied that adequate provision is made in the Constitution for the protection of minorities and unless the Constituent Assembly agrees to the terms of a treaty which is considered satisfactory from the British stand-point, the Constitution will not come into operation. This gives to the British a veto on the Constitution as a whole. Though there may not be any Britishers sitting in the Constituent Assembly, the imposition of these two conditions gives them effective power to shape the future Constitution. By the Statement of May 16th they have already taken the initiative in framing India’s Constitution, and by laying down these conditions they will influence the actual framing of it. Both these place limits on India’s weight to self-determination. At a Press Conference on July 10th Pandit Nehru is reported to have stated as follows: “If the British Government presumes to tell us that they are going to hold anything of India (and not build up) because they do not agree either regard to the minorities or in regard to the Treaty, we shall not accept that position. It will become a casus belli……In regard to the minorities, it is our problem, and we shall, no doubt, succeed in solving it. We accept no outside interference in it–certainly, not the British Government’s interference in it–and, therefore these two limiting factors to the sovereignty of the Constituent Assembly are not accepted by us.” It remains to be seen in what was these rival views can be reconciled.
The conditions imposed by the British are not the only obstacles in the way of the constitution framed by the Constituent Assembly coming into effect. Even if Muslim representatives belonging to the League agree to participate in the Constituent Assembly, their acceptance of the Constitution as it finally emerges from the Assembly is conditional. The resolution passed by the League on June 6th says: “The ultimate attitude of the Muslim league will depend on the final outcome of the labours of the Constitution-making body and on the final shape of the Constitutions which may emerge from the deliberations of that body, jointly and separately in its three sections.” There is a likelihood of a similar attitude being adopted by the Indian States. Their representatives may take part in the deliberations of the Constituent Assembly, but the accession of the States to the Union is not automatic. It is subject to negotiation separately by each State. When circumstances like these are taken into consideration, there seems to be some justification for the apprehension entertained in certain quarters that, though the Assembly may succeed in framing a constitution, its labours may meet with the same fate as those of the Frankfurt Assembly which framed a Constitution for Germany in 1848-49.
It is thus seen that the Constituent Assembly that is to function differs from the Assembly that has all along been demanded by the Congress. It is elected not by adult franchise. It is not free from the influence of the British. It consists of a number of heterogeneous elements. It is not organised to facilitate speedy action. It has some of the evils of bicameralism. It has not behind it the support of a genuine and powerful Provisional Government. It is not free to frame any kind of Constitution it likes or to adopt any procedure it considers desirable. There is also no guarantee that the Constitution it frames will automatically come into operation. These are some of the defects that the critics of the Cabinet Delegation’s plan have in mind, and perhaps these are also the defects which Mahatma Gandhi and Pandit Nehru had in mind when they referred to the Constituent Assembly during the deliberations of the All India Congress Committee on July 7th and 8th. It may be that the Assembly will be able somehow to get over these defects and that everything may end well at last. But all this shows that heroic efforts are necessary if the Assembly is to become a real success. It should also be realised by all the critics that if we have not been able to cure a better type of Assembly at present the reason for it is our own weakness. It is this truth that is enjoyed by Mahatma Gandhi in the following words of his: “If then the Constituent Assembly fizzles out, it will not be because the British are wicked every time; it will be because we are fools, or shall I say, even wicked. Whether we are fools or wicked or both, I am quite clear that we must look for danger from within, not fear the danger from without. The first corrodes the soul; the second polishes.” We have now got the kind of Assembly which we deserved, and the wisest course is to make the best use of it. It is up to the members of the Assembly to transform it into a really sovereign and independent body if the spirit that animates them is that which animated the members of the States General of France of 1789, a spirit which made them take the famous Tennis-Court Oath that they would not separate until they had drawn up a constitution for their country.
29th November, 1946.
Sunday, March 13, 2011
Friday, March 11, 2011
SEMINAR ON SEDITION
SEMINAR on “LAW OF TREASON AND SEDITION
– with specific reference to the demand for repeal of S. 124-A IPC.”
Date and Time: 12 March 2011 (Saturday) from 10-30 A.M. to 5-30 P.M.
Venue: Sri Ramanujachari Hall, 1st Floor, Maheshwari Complex,
(C/o Sri Mahamood Ali, Advocate),
Masab Tank Cross Roads,
INAUGURAL SESSION (10-30 AM to 12 Noon):
Theme: “Dr. Binayak Sen: Innocent victim of unjust sedition law”
Introduction: I. Mallikarjuna Sharma, Advocate.
Chairman: Sri A.B.K. PRASAD, Senior Journalist.
Inaugural Address: Dr. P.M. BHARGAVA, Scientist
Speakers: Sri K. Pratap Reddy, Senior Advocate
Sri C. Malla Reddy, Senior Advocate
Sri Mahamood Ali, Advocate
Sri K. Narayana, CPI
Sri Varavara Rao, Writer
Sri Nikhileshwar, Writer
Sri M. Hanmesh, PYL
Sri Mihir Desai, Advocate, Bombay
Sri B.T. Venkatesh, Advocate, Bangalore
Sri M.V. Sastri & others.
Tea: 12-00 to 12-15 P.M.
1st Session (12-15 to 1-45 P.M.): Topic: “History of law of treason and sedition.”
Mihir Desai, Advocate, Bombay will present paper/speak, initiating discussion.
Lunch: 1-45 to 2-30 P.M.
2nd Session (2-30 to 4-00 P.M.):
Topic: “On sedition clause Section 124-A, IPC and demand for its repeal.”
I. Mallikarjuna Sharma, Advocate, will present paper/speak, initiating discussion.
Tea: 4-00 to 4-15 P.M.
Final session: 4-15 P.M. to 5-30 P.M. - GENERAL DISCUSSION on “measures and agitation for release of Dr Binayak Sen and repeal of Section 124-A IPC.”
I. MALLIKARJUNA SHARMA, Coordinator,
Jasveen Jairath, Member
FREE BINAYAK SEN CAMPAIGN,
6-3-1243/156, M.S. Makta,
Saturday, March 5, 2011
Calcutta High Court Judgment setting aside the ban on Tasleema Nasreen's 'Dwikhandito' - A blow for the cause of freedom of speech and expression.
Sujato Bhadra vs State Of West Bengal on 22/9/2005
Dilip Kumar Seth, J.
1. I have the privilege of going through the judgment prepared by His Lordship the Hon'ble Alok Kumar Basu, J. I fully concur with the view and the reasoning given therein. However, I would like to add a few words of mine in support of the judgment prepared by His Lordship.
2. Before we embark upon deciding the question whether the book "Dwikhandita" written by Taslima Nasreen of Bangladesh could be proscribed in India, we may note some of the relevant facts, which require attention for the purpose of answering the question. These are: (1) that the book "Dwikhandita" is the third volume of the autobiographical trilogy of the author; (2) that she, herself a woman, had written the alleged offending part in the context of the status of women in the society in Bangladesh emanating from adoption of Islam as a State religion; (3) that she was expressing her own view and political thoughts/philosophy in relation to the Constitution of Bangladesh of which secularism was one of its salient features since deviated from, subsequently, by the State by adoption of Islam as a State religion doing away with the secularism to suit the particular purpose of the particular ruler; (4) that the author has been in exile from her own motherland for some other earlier writings that she understood to be the result of religious fundamentalism against which she was unable to obtain any protection from the State machinery in her own motherland; (5) that she was attempting to expose the politico-religious situation affecting the society as a whole pushing the position of women into an absolute insolent and abominable existence dominated by the male counterparts in the name of religion aided and abated by the State machinery guided by the State religion; (6) that she was attempting to strike hard to deliver a shock in order to awake the sleeping/dormant conscience of the people of Bangladesh to restore secular democracy initially subscribed by the Constitution of Bangladesh and eradicate the maladies of the society and for paving the ways for emancipation of the women and the society; (7) that she had pointed out to the darkness befalling the State of Bangladesh and the society on account of religious belief by pointing out the debilities and ill effects inherent in the religious belief opposed to the true religion preached by Islam, a religion of humanity and mankind.
2.1. The intention of the author, who herself profess the same religion, has to be gathered from the context of the book itself which is argued to be an eye-opener pointing out her fingers to the inconsistency in the Holy Scriptures, relying on history and other authentic biographies of the Holy Prophet and the Holy Koran and other Holy Scriptures. It is also to be noted that the passage was written in the context of the position of women in Bangladesh being appraised in the light of adoption of the State religion at the cost of secularism and democracy with different standard for women and men.
2.2. That the author is a feminist attempting to emancipate the feminine of her own country and to secure for them a respectable position in the society in Bangladesh and eager to the restoration of democracy and secularism opposed to the religious fundamentalism in Bangladesh so as to enable her to come back to her own motherland, the urge whereof is apparent in volumes from her writings. Her entire effort in the book is directed towards the situation in Bangladesh alone
2.3. Keeping this background in mind, we may now proceed to examine the book in its context as a whole and scrutinize the offending passages for the purpose of ascertaining whether the proscribing of the book by the Government of West Bengal could be justified when published by a publisher in West Bengal/ India in Bengali language.
2.4. Before we proceed to do so, we may discuss the law on the subject and the principles emerging therefrom since settled by the Apex Court in similar such cases and then to apply the same in the facts and circumstances of this case in order to ascertain as to whether the offending passages could be brought to book by reason of the provisions contained in section 95 of the Code of Criminal Procedure (Cr. PC) and Section 295A of the Indian Penal Code.(IPO). Preliminary objection: Locus standi of the petitioner:
3. However, we may first deal with the preliminary objection with regard to the locus standi of the petitioner to move this petition. In the petition, it is alleged that the petitioner is a citizen of India. He owns a copy of the forfeited book. He has a proprietary right in the copy of the said book within the meaning of Article 300A of the Constitution of India. Further, under Article 19(1)(a) of the Constitution of India, he has a fundamental right to freedom of speech and expression as enshrined therein. He claims that he has freedom to seek, receive and impart information from the said book as part of his such fundamental and legal right. The order of forfeiture has impaired his fundamental and legal right. Therefore, he claims himself to be a person who falls within the ambit of the expression "any person having any interest in any...book" as provided in Section 96 of the Cr. PC.
3.1. We are in agreement with this proposition. In our view, the petitioner, as claimed by him, is such a person having interest in the book within the meaning of section 96 Cr. PC for the reasons following. For this proposition, we may rely on the decision in Union of India v. Association for Democratic Reforms and Anr., , wherein it was held that:
"(2) Every one shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice."
3.2. Section 96 Cr. PC provides for an application to the High Court to set aside the order of forfeiture by a person having any interest in any book in respect of which a declaration of forfeiture has been made under section 95 for setting aside such declaration on the ground that the book did not contain any such matter referred to in section 95(1). Section 96 uses the phrase "any person having any interest in any...book" since proscribed. The phrase 'any interest in any ... book' cannot be circumscribed by any condition. Such intention includes the interest of a person who is owner of a copy of such book and wants to retain with him, read it and discuss with others and share or impart information out of it. Similarly, the phrase 'any person' includes anyone having such interest. By reason of such declaration in view of section 95, the petitioner runs the risk of his book being seized by any police officer and also the risk of search of any premises where he might keep the book. Therefore, we are of the view that the petitioner is a person coming within the purview of section 96 Cr. PC having locus standi to move this petition for setting aside the order of forfeiture. However, in his usual fairness Mr. Balai Chandra Roy, learned Advocate General, though did not conceded the point but did not elaborate his submission on this point. Therefore, we overrule the preliminary objection and hold that the petitioner has locus standi to maintain this petition before this Court.
Section 95: Scope and Impact:
4. In order to substantiate the situation, we may beneficially quote section 95 Cr. PC as follows:
'95. Power to declare certain publications forfeited, and to issue search-warraors for the same.-- (1) Where--
(a) any newspaper, or book, or
(b) any document, wherever printed, appears to the State Government to contain any matter the publication of which is punishable under Section 124A or Section 153A or Section 153B or Section 292 or Section 293 or Section 295A of the Indian Penal Code (45 of 1860), the State Government may, by notification, stating the grounds of its opinion, declare every copy of the issue of the newspaper containing such matter, and every copy of such book or other document to be forfeited to Government, and thereupon any police officer may seize the same, wherever found in India, and any Magistrate may by warrant authorize any police officer not below the rank of Sub-Inspector to enter upon and search for the same in any premises where any copy of such issue or any such book or other document may be or may be reasonably suspected to be.
(2) In this section and in Section 96, --
(a) "newspaper" and "book" have the same meaning as in the Press and Registration of Books Act (25 of 1867);
(b) "document" includes any painting, drawing or photograph, or other visible representation.
(3) No order passed or action taken under this section shall be called in question in any Court otherwise than in accordance with the provisions of Section 96."
4.1. Section 95 Cr. PC empowers the State Government to declare certain publications forfeited. Such power is exercisable where it appears to the State Government that any book contains any matter punishable under Section 295A IPC. The State Government may, by notification stating the grounds of its opinion, declare every copy of such book to be forfeited to the Government. Upon such declaration any police officer is authorized to seize the same wherever found in India. This declaration also authorizes any Magistrate to authorize any police officer, not below the rank of Sub-Inspector, by warrant to enter upon and search for any such book reasonably suspected to be in any premises. Thus, in order to proscribe a book, the State Government has to form an opinion. Such opinion is to be stated in the form of grounds in the notification of the declaration that might be issued by the State Government. The opinion that has to be formed is in relation to a book to the extent that the book contains matter punishable under Section 295A IPC. It is not an absolute power. It is a power, the exercise whereof, is dependent on the containing of matters punishable under Section 295A IPC. Unless the matter attracts the mischief of Section 295A IPC, the book cannot be proscribed.
Section 295A IPC: Scope, Ambit and Effect:
5. Section 295A IPC reads thus:
"295A. Whoever, with deliberate and malicious intention of outraging the religious feelings of any class of citizens of India, by words, either spoken or written, or by signs or by visible representations or otherwise insults or attempts to insult the religion or the religious beliefs of that class, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both."
5.1. In order to attract the mischief of the provision of Section 295A in the present case, the following ingredients are to be satisfied, viz. a person (1) by written words, (2) with deliberate and malicious intention, (3) of outraging the religious feelings, (4) of any class of citizens of India, (5) insults or attempts to insult the religion or the religious beliefs of that class. In other words, (1) the intention has to be deliberate and malicious both and (2) for outraging the religious feelings (3) of a class of citizens of India (4) in order to insult or attempt to insult the religion or religious belief of that class i.e. in India (5) by written words.
5.2. It may also be noted that Section 295A confines the effect of the offending only on the citizens of India; whereas whoever may be the author. In this case, we are concerned with the impact of the book on the citizens of India. The author is not a citizen of India. She, therefore, cannot claim any fundamental right of freedom of speech or expression guaranteed under Article 19(1)(a) of the Constitution of India; but the writ petitioner can. When tested in a case where the author is not a citizen of India, the standard of the principle cannot be deviated from those applicable to a citizen, in view of Article 14 attracting the principle of arbitrariness. However, in this case, the writ petitioner, a citizen of India, is seeking to establish his freedom of speech and expression.
Section 96 Cr. PC: Scope and Ambit:
6. Before we discuss the matter further, we may also examine the scope of High Court's interference under Section 96 Cr. PC. Sub-section (4) of Section 96 empowers the High Court to set aside the declaration of forfeiture if it is not satisfied that the book proscribed does not contain any such matter referred to in Section 95(1) Cr. PC. This so appears from Sub-section (4) of Section 96, which reads thus:
"(4). The High Court shall, if it is not satisfied that the issue of the newspaper, or the book or other document, in respect of which the application has been made, contained any such matter as is referred to in Sub-section (1) of Section 95, set aside the declaration of forfeiture."
6.1. The High Court can go into the merits of the decision of the Government to forfeit the book. The said power is in the nature of an appeal. The High Court, however, cannot issue a different order of forfeiture by itself. In order to buttress this proposition, we may refer to the decisions inGopal Vinayak Godse v. UOI, 1971 Cr. LJ 324 (paras-51, 52) and Harnam Das v. State of UP, .
7. Section 295A IPC was tested on the anvil of constitutionality and validity in Ramji Lal Modi v. State of UP, , wherein the Apex Court while holding the constitutionality of the said section laid down that insults to religion offered unwittingly or carelessly or without any deliberate or malicious intention to outrage the religious feelings of that class do not come within the section, (para-9)
7.1. Therefore, insult or attempt to insult the religion or religious belief when made with an intention, which must be deliberate or malicious, of outraging the religious feelings of a class of citizens of India, then only the provisions of Section 295A would be attracted. The outrage to religious feelings or insult to religion or religious belief if made unwittingly or carelessly or without any deliberate and malicious intention, then the same would not come within the purview of Section 295A IPC. The expression 'deliberate and malicious" is indicative of the intention of the legislature. The conjunction 'and' conjoins both. It must be both deliberate and malicious i.e. deliberately malicious. If it is made knowingly, but with an intention not deliberate nor malicious, but with an intention oriented by clinching or revitalizing or striking a blow for the well being of the society or for emancipation of the women, which is necessary for the mankind, in that event, such outraging of religious feelings or insult to religion or religious belief, though may be intentional but cannot be termed deliberate and malicious even if it is not made unwittingly or carelessly. If it is inflicted in good faith by an author in his/her endeavour or object to facilitate some measure on social reform by administering such a shock to the followers of the religion, as would ensure notice being taken by any criticism so made, would not attract the mischief of Section 295A by reason of the phrase "with deliberate and malicious intention" qualifying the intention. In order to establish the ingredient of Section 295A to be applicable in a case it is to be established that the author had the requisite mens rea deliberate and malicious to outrage the religious feelings of a class of citizens of India and to insult or to attempt to insult the religion and religious beliefs of that class of citizens of India. The offence must be intended deliberately and maliciously for the citizens of that class in India. Therefore, we are to examine whether the offending passage was (1) written (2) with the deliberate and malicious intention (3) of outraging the religious feelings to insult the religion or religious beliefs (4) of a particular class of citizens (5) of India. The intention of the author has to be found out from the book itself having regard to the context in which it was written.
7.2. The author has written the passages in the book. The passages tend to outrage the religious feelings of the followers of a particular religion. These also tend to insult the religion or religious beliefs. If this is intended deliberately and maliciously to offend the Indian citizens of that class, then only the mischief of Section 295A IPC will be attracted. The intention must both be deliberate and malicious and must be meant for the Indian citizens of that class.
7.3. In the present case, admittedly, the author was dealing with the position of women in Bangladesh and the impact of the State religion to subvert secularism and democracy in the socio-religio-politico context of the State of Bangladesh and its Constitution. If it appears that it was a shock meant for the citizens of Bangladesh to bring to their notice the effect of the State religion vis-a-vis the position of women in the society and its ill effects and impact which needs to be eradicated and such shock is aimed at reviving secularism, restoring democracy and emancipating women for the well being of the society in Bangladesh, then whether it can be said that it was intended to insult the religion or religious belief for outraging the religious feelings of the citizens of India.
7.4. Admittedly, India is secular. In India, there is no State religion. In India, there is democracy. In India, women are free and stand in equal footing and no discrimination is permissible in any respect with regard to the status of women in the society, social or political or in respect of employment or otherwise. The position of women in India even of that particular class stands on equal footing with the counterparts belonging to other class. In any event the author was concerned with the politico-religious impact on the society emerging in Bangladesh only and not in India. Therefore, she cannot be said to have intended to insult the religion or religious beliefs of any class of citizens of India to outrage their religious feelings. By no stretch of imagination such an intention even without being deliberate or malicious could be discovered from the alleged offending passages of the book.
7.5. This principle finds support from the report of the Select Committee published on 17th September, 1927 in the Gazette of India from where we may extract the voice of the Select Committee, viz.:
"Further, we were impressed by an argument to the effect that an insult to a religion or to the religious beliefs of the followers of a religion might be inflicted in good faith by a writer with the object of facilitating some measure of social reform by administering such a shock to the followers of the religion as would ensure notice being taken of any criticism so made. We have therefore amplified the words 'with deliberate intention' by inserting reference to malice, and we think that the section which we now evolve will be both comprehensive and at the same time of not too wide an application."
Deliberate and Malicious:
8. Now we may examine the scope of the expression 'deliberate and malicious' qualifying the intention in Section 295A. The word 'deliberate' is defined in Black's Law Dictionary, 6th Edition, pages 426-427 as:
'Well-advised; carefully considered; not sudden or rash; circumspect; slow in determining; willful rather than merely intentional. Formed, arrived at, or determined upon as a result of careful thought and weighing of considerations, as a deliberate judgment or plan. "By the use of this word, in describing a crime, the idea is conveyed that the perpetrator weights the motives for the act and its consequences, the nature of the crime, or other things connected with his intentions, with a view to a decision thereon; that he carefully considers all these, and that the act is not suddenly committed". The word "malicious" has been defined in Black's Law Dictionary, 6th Edition, page 958 as "characterized by, or involving, malice, having, or done with, wicked, evil or mischievous intentions or motives".'
8.1. In order to find out the meaning of the word 'malicious', we may fall back on the passage by Bayley, J., in Bromage v. Prosser, 1825(4) B & C 247 at page 255 viz., "Malice in common acceptance means ill will against a person, but in its legal sense it means a wrongful act, done intentionally, without just cause or excuse." The man acts maliciously when he willfully and without lawful excuse does that which he knows will injure another person or his property. The term 'malicious' means wicked, perverse and incorrigible disposition. It means and implies an intention to do an act, which is wrongful, to the detrimental of another where any person willfully does any act injurious to another without lawful excuse he does it 'maliciously'. Whether a person has acted maliciously is a question of fact to be proved.
8.2. In order to establish malice as contemplated by Section 295A, it is not necessary to prove that the accused bore ill will or enmity against specific persons. If the injurious act was done voluntarily without a lawful excuse, malice may be presumed. Malice is often not capable of direct and tangible proof and in almost all cases has to be inferred from the surrounding circumstances having regard to the setting, background and connected facts in relation to the offending article. The Select Committee in their report published in Gazette of India dated 17th September, 1927 stated that the essence of the offence is "that the insult to religion or the outrage to religious feelings must be the sole, or, primary, or at least deliberate and conscious intention. We have accordingly decided to adopt the phraseology of Section 298 which requires deliberate intention in order to constitute the offence with which it deals."
8.3. In State of A. P. and Ors. v. Goverdhanlal Pitti, , it was held that the legal meaning of malice is
"ill-will or spite towards a party and any indirect or improper motive in taking an action". This is sometimes described as "malice in fact". "Legal malice" or "malice in law" means "something done without lawful excuse". In other words, "it is an act done wrongfully and willfully without reasonable or probable cause, and not necessarily an act done from ill feeling and spite. It is a deliberate act in disregard of the rights of others". (See Words and Phrases Legally Defined, 3rd Edn., London Butterworths, 1989)
8.4. In S. R. Venkataraman v. Union of India and Anr., , the Apex Court held that malice in law is, however, quite different from malice in fact. Thus malice in its legal sense means malice such as may be assumed from the doing of a wrongful act intentionally but without just cause or excuse, or for want of reasonable or probable cause. Viscount Haldane described it as follows in Shearer v. Shields, (1914) AC 808 at p. 813:
"A person who inflicts an injury upon another person in contravention of the law is not allowed to say that he did so with an innocent mind; he is taken to know the law, and he must act within the law. He may, therefore, be guilty of malice in law, although, so far the state of his mind is concerned, he acts ignorantly, and in that sense innocently."
Outraging the religious feelings:
9. In Section 298 IPC, the word 'wounding' has been used. Whereas in Section 295A IPC, the word 'outraging' has been used. Outraging is a much stronger word than wounding. In Murray's Dictionary 'outrage' is explained as "to wrong grossly, treat with gross violence or indignity". The Select Committee in their report stated:
"We think that to penalise even an intentional outrage or attempted outrage upon the religious feelings of any class would be casting the net too wide for the cases with particular reference to which the Bill has been introduced. At the same time, we realise that the reference to the outraging of religious feelings was inserted to provide for the case of an insult to the founder of a religion or a person held sacred by the followers of a particular religion where such an outrage does not amount to an insult of the religion. It has in one instance been held that an insult to the founder of a religion is not necessarily an insult to the religion although it may outrage the religious feelings of the followers of that religion. We have therefore provided that the new section shall only apply in case where a religion is insulted with the deliberate intention of outraging the religious feelings of its followers. In other words, the words used should be such as are bound to be regarded by any reasonable man as grossly offensive and provocative and maliciously and deliberately intended to outrage the feelings of any class of citizen of India, though, however, the truth of the allegations cannot be a good defence to charge under Section 295A.'"
9.1. The Select Committee in their report stated that:
"to make it clear that an attack on a founder is not omitted from the scope, of the section, we have specifically made punishable an insult to the 'religious beliefs' of the followers of any religion" (Gazette of India, dated September 1.7, 1927).
In Ambalal Paragji, (1929) Grim. Appeal Nos. 17 and 18 of 1929 decided by Patkar and Baker, JJ., on April 12, 1929 (unreported Bombay case) Baker, J. held that:
"The violently abusive and obscene diatribe against the offender or prophet of a religion or against a system of religion may amount to an attempt to stir up hatred or enmity against the persons who follow that religion. To attribute to the Mahomedan religion the teachings of the doctrine of Dawood, a heretic, is insulting to that religion, and if done, deliberately and maliciously, would fall under Section 295A. There is a further reference to God, who, according to the Mahomedan, is a celibate, having given permission to Mahomedan males to have as many as four wives to boot and have as many non-Mahomedan women as they like and other liberties with regard to women. I agree with the Sessions Judge as regarding this as insulting to the Mahomedan religion and if the insult is malicious and deliberate with the intention of outraging the feeling of Mahomedans the publication would be an offence under Section 295A."
In Krishna Sharma, 1955(8) Sau. L.R. 42 (FB), it was held that anything, which preaches insult to religion or religious beliefs of another class, definitely tends to disturb public order.
9.2. The question remains and has to be looked into in the present perspective in an era of women emancipation and the society, both national and international, advocating gender justice pointing out to the ills in the society perpetrated in the name of custom or religion or faith now being sought to be eradicated. A conscientious and conscious effort is being undertaken internationally to reach justice to the gender by removing inequality. God has created all human beings as equal and a custom or a social system making women less equal whether supported by religion or not is now has to be given a different look. Could an attempt to remove such malaise and ills by delivering/ administering a shock and that too by a follower of the same religion be counted to be perceived by a deliberately malicious intention? It is high time that, we look at this and do not close our eyes simply because it has a sanction by religion and when sought to be pointed out the followers of such religion cannot so claim when in the context and the surrounding circumstances, it is extremely difficult to find out any malice.
9.3. The question has to be looked into having regard to the present day context, particularly, in India; where the State does not follow any religion and the Constitution ensures secularism and gives equal right to men and women and discrimination is ruled out irrespective of sex, caste, creed or religion; where the Government of India is taking bold steps to reserve seats in Panchayats, and the Parliament is considering to reserve seats in the legislatures for the women, with a view to uplift the status of the women in the society; and where different High Courts and the Supreme Court are heavily coming down upon the gender inequalities in every sphere of life whether sanctioned by custom or religion or faith or any kind of system; and where many other social welfare organizations are advocating the cause of uplifting and emancipation of the women to raise themselves at the same platform with their counterparts with equal rights since guaranteed under the Constitution of India. In the above perspective can a citizen of India, whatever class he may belong to, feel when such attributes are made with reference to the religion or religious beliefs by a follower of the same class in the social perspective of a foreign country within the socio-religio-politico context of that country being moved by a sincere effort to strike at the root of the inequalities perpetrated through State religion of that foreign country, as outraging of religious feelings to insult or attempt to insult the religion or religious beliefs of that class in India a different country with deliberate malicious intention. In any event, can it be said that the author has authored the passage with a deliberate malicious intention of outraging the religious feelings to insult or attempting to insult the religion and religious belief of the follower of that religion in India or of that religion in general. When the world is marching forward towards achieving equality to men and men, women and women and men and women grown ups and children, poor and rich, white and coloured through the United Nations Organizations and other world or international organizations and the world has gone global, a new approach is definitely necessary for the cause of humanity. The superstition, beliefs, faiths, customs, usages, social taboos spreading its tentacles to keep particular sections of the human race subjugated as sub-human being are subjects from which every human being is attempted to be freed. This is an area which the fundamentalists intend to keep gray and would always attempt to generate the voice of fundamentalism making the area grayer perpetrating the maladies affecting the society, and thwarting the social sensitization and the social awareness and social evolution and development, and attempt to create a barrier against the progress, and want the society to step backward, and keep the situation as it stood in the medieval period. What might have been good and right, what might have been the need of the hour in those medieval periods cannot be questioned now. Nor anyone can question the wisdom of the Holy Prophet and the wisdom of the Holy Scriptures. But history has shown us that the evolution of the mankind is continuous through the ages, and many customs, systems and beliefs have since changed through evolution. Many ills and maladies ingrained in the society have been eradicated or removed mostly through the people following the same religion by their own emancipating thoughts and ideologies and sometimes striking very hard at the faiths and beliefs of the followers of that particular custom/system sanctioned by religion.
9.4. India as a progressive country thriving for achieving the goal of equality in particular the gender equality and the rules and laws being framed for preaching such gender equality and gender sensitization which we the people in India are following, are enough to prevent the State Government to presume that we the people of India, to whatever class we may belong or whatever religion we may follow, particularly, the people of West Bengal, who are known for their emancipated attitude, political sensitization and open mindedness, and who are known for their apathy to and have broken the barriers of caste, creed and religious distinction, and who are known to be the most politically sensitized people throughout India and also known for being free from communalism which the history has seen for a long time viz. that no communal riot had ever erupted between any communities in West Bengal, would be so unreasonable, immature and susceptible. Could the State of West Bengal may have any ground to assume that these people would be so immature and susceptible to think that the author had deliberately intended with malice to hurt their religion or religious feelings or beliefs. On the other hand, such a system is not being perpetrated in India and India having emancipated from such a situation giving the same rights and light of education to the women of all class would have any faint ray of idea that these citizens of that class to be so less intelligent, less mature that it would not be intelligible to them as to what the author had intended to. Such a presumption not only might tend to cast an aspersion but also might tend to inflict an insult to that class of citizen. It would rather tend to be disheartening to note that the Government of West Bengal does not have faith and confidence about the maturity of its own citizens of that class and tend, on the other hand, to recognize the soaring voice of fundamentalism and ignore the rational voice of the mass who did not take exception though the book was read by them over a considerable period before being prescribed.
Justification or Lawful Excuse:
10. Our attention has been drawn to various passages from the glorious Koran, Bhukhari Sharif, A Challenge To Islam For Reformation by Gunter Luling, And Muhammad Is His Messenger (Annemarie Schimmel), Arabia Before Islam (The Formation Of Islam -Jonathan P. Beikey), Islam & Religion (Dictionary of Marxist Through Tom Bottamore), Women Before Islam (Foundation of Islam Benjamin Walker), Mohammad Maxima Rodinson (Birth of A Prophet) and Faith Freedom Org. (Mariyah the sex salve of the Holy Prophet) in order to show that the passage did not contain any statement without lawful excuse. Inasmuch as Mr. Bagchi wanted to point out by drawing out attention to various passages from those books, the extracts whereof have since been xeroxed and annexed in his affidavit-in-reply, that the statements made in the said passages cannot be brushed aside as simple fall-out and that it has some historical basis.
10.1. It may be noted that we are not of the view that if a truth is spoken, it would not attract the mischief of Section 295A when it is oriented by deliberately malicious intention to outrage the religious feelings or to otherwise insult or attempt to insult the religion or religious belief of a particular class. On the other hand, we say that if the statements are founded on historical truth or though there may be difference of opinion, but not to the extent of absurdity and are accepted as historical truth in the academic sphere, then the question has a bearing on the intention of the author to ascribe the same as deliberate and malicious. The support of historical truth may lead the Court to presume that there is no malice. But, at the same time, the Court has to examine, even if it might presume absence of malice, the surrounding circumstances and the facts in order to arrive at a conclusion with regard to the existence of deliberate malicious intention on the part of the author. This examination leads us to the question, which is to be gathered from the text and the scheme/central theme of the whole book and the surrounding circumstances.
10.2. Apart from this the author had also written certain other articles, extracts of which have been incorporated through xerox in the affidavit-in-reply containing portions from "Nirbachita Kalom" (Selected Columns), "Nasta Mayer Nasta Gatha" (Spoiled Girl's Spoiled Verse), "Aamar Meyebala" (My Girlhood) and 'Utal Hawa" (Restless Breeze). Mr. Bagchi had drawn our attention to various passages from the said extracts. Therefrom it appears that the author was terribly concerned with the plight of the women in the society in Bangladesh and was striving hard to deliver a shock to the conscience of the citizens of Bangladesh with a view to emancipate the women and remove the maladies of the socio-religious impact. This is really a criticism in nature and cannot be described anything other than a fair criticism. Her criticism as we have understood is to the effect that religion deals with spiritualism and in order to achieve spiritualism, it might prescribe certain forms and customs, penances and meditation, but it does not denounce the humanity to slavery and retrograde the existence of women to a haplessly and hopelessly insolent and abominable position against the spirit/essence of the religion which the Holy Prophet had preached with the vision of the Prophet and that of a statesman.
10.3. History shows that the Holy Prophet had established not only a religion but also a nation. It was His Holiness who established a nation without borders, without barriers i.e., Pan Islamism, and established a very strong State, a theocratic State. The tenets of the Glorious Koran, Holy Hadiths and other Holy Scriptures are to be read in the context of the women before the advent of Islam in Arabia and its transformation under the tenets of Islam and in the light of the present day context, particularly, in India when the women are not only walking in shoulder with the men folk in administrative, commercial, scientific, adventures or other fields but also in the battlefields as members of the combat forces. In every sphere of life the women are proving themselves equal and have been participating courageously in all spheres of life and it is not expected that a class of citizens in India would subscribe to the views that the women should go back to the situation as it existed in the Arabia in the medieval period after the advent of Islam. None of the citizens could be expected to be so unreasonable to read in these passages any deliberately malicious intention of outraging the religious feelings to insult the religion or religious beliefs of that class.
10.4. The author is in exile. She might have a feeling to decry fundamentalism and the ills of the religion, responsible for her exile. There might be something which might, at that age, have a different utility, which may not be felt to be just for all time to come and in consideration of the present day context when the standards have much differed and the world had undergone a great evolution, are factors which are to be considered for discovering the intention and malice and the lawful excuse.
The Principles and The Law Explained: The Decisions:
11. In order to sustain the ground disclosed in the order of forfeiture, namely the offending passages read in the context of the book as a whole, the following ingredients are required to be established viz.: (1) 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; (2) intention to promote enmity or hatred, apart from what appears from the writing itself, is not a necessary ingredient of the offence, it is enough to show that the language of the writing is of a nature calculated to promote feelings of enmity or hatred for, a person must be presumed to intend the natural consequences of his act; (3) the matter charged of, as being within the mischief, must be read as a whole, one cannot rely on stray, isolated passages nor indeed can one take a sentence here and a sentence there and connect them by a meticulous process of inferential reasoning; (4) 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; (5) if the writing is calculated to promote feelings of enmity or hatred, it is no defence to the charge that the writing contains a truthful account of past events or is otherwise supported by good authority, if a writer is disloyal to history, it might be easier to prove that history was distorted .in order to achieve a particular end i.e. to promote feelings of enmity or hatred between different classes or communities, adherence to the strict path of history is not by itself a complete defence, greater the truth, greater the impact of the writing on the minds of its readers, if the writing is otherwise calculated to produce mischief; (6) a passage here or a passage there, sentence here or a sentence there, a word similarly, may if strained and torn out of context supply inflammatory matter to a willing mind, is a process not permissible. We must read the book as a whole, we must try to find out central theme of the book and must not ignore the context of a passage and we must try and see what, reasonably was the author intending to convey and what would be the reaction of the common reader. If the offending passages are considered in this light, the book shall have to be cleared of the charge levelled against it. For the above principle, we may draw our inspiration from the principles laid down in Gopal Vinayak Godse v. Union of India and Ors., , (Hon'ble Y.V. Chandrachud, J.).
11.1. Mr. Roy, on the other hand, relied on the decision in State of Uttar Pradesh v. Lalai Singh Yadav, . In the said decision, it was held that a drastic restriction in the right of citizens when imposed by statute calls for a strict interpretation, especially when quasi-penal consequences also ensue. There is no doubt about the proposition laid down therein, but in the facts and circumstances of the case, the said decision does not seem to contribute any help to Mr. Roy. On the other hand, the statute, the offending passage has to be read strictly in the sense within which, as discussed above, the question is to be looked at. Mr. Roy then relied on the decision in N. Veera Brahmam v. State of Andhra Pradesh, , wherein it was held that the point remains whether forfeiture should be confined to the parts of the book in question. All that is necessary is that the book should contain matter, which is deliberately and maliciously intended to outrage the religion or religious beliefs etc. It does not require that each and every part of the book should in itself be of the nature indicated in that section. It is difficult to accede to the theory that only such parts of the book as would offer insults that should be extracted from the writing and forfeited. The principle is well-established. The passage, if found offensive, not the part, but the whole book is to be proscribed. In order to do that the book has to be read as a whole and cannot be read in piecemeal. The offending passage cannot be read out of the context or the central theme of the book.
11.2. Mr. Roy had also relied on various other judgments viz., Khalil Ahmed v. State, ; Kali Charan Sharma v. Emperor ; State of Mysore v. Henry Rodrigues and Anr., 1962(2) Cr. LJ 564; In re. P. Ramaswamy, 1962 (2) Cr. LJ 146; State of A P. and Ors. v. Goverdhanlal Pitti, ; S. R. Venkataraman v. Union of India and Anr., ; Shiv Ram Dass Udasin v. Punjab State, ; Baragur Ramchandrappa and Ors. v.
State of Karnataka and Anr., 1998 Cr. LJ 3639; S. Veerabadran Chettiar v. E. V. Ramaswami Naicker and Ors., and Azizul Haq Kausar Naquvi and Anr. v. State, 1980 Cr. LJ 448.
11.3. In the decision in Khalil Ahmed (supra) the malice was found in fact. In this case, we are therefore, supposed to examine the book to find out malice in fact on a reading of the whole book in the socio-religio-politico situation in Bangladesh. In Kali Charan Sharma (supra), it was held that the matter must be judged primarily by the language of the book itself though it is permissible to receive and consider external evidence either to prove or to rebut the meaning ascribed to it in the order of forfeiture. If the language is of a nature calculated to produce or to promote feelings of enmity or hatred the writer must be presumed to intend that which his act was likely to produce. This was the principle laid down by Best, J. in Burdett's case (4 B & A 120) in dealing with a case of seditious libel and the same principle clearly applies to the case of a publication punishable under Section 153A IPC. The same principle still hold good for consideration of a case under Section 295A IPC. However, on fact, malice is required to be established.
11.4. In Henry Rodrigues (supra), it was held that--
"Courts would do well to take serious note of the observations made by the Supreme Court in Veerabhadran Chattier v. E. V. Ramswami Naickar, . Though Their Lordships were dealing with a case under Section 295 of the IPC, the following observations made by them at p.1035, are equally applicable to a case under Section 295A of the IPC.
The section has been intended to respect the religious susceptibilities of persons of different religious persuasions or creeds. Courts have got to be very circumspect in such matters, and to pay due regard to the feelings and religious emotions of different classes of persons with different beliefs, irrespective of the consideration whether or not they share those beliefs, or whether they are rational or otherwise, in the opinion of the Court."
11.5. In In re: P. Ramaswamy (supra), it was held that --
"Malice, no doubt, is one of the important ingredients of the offence under Section 295A, and it is certainly for the prosecution to establish that element by proper evidence. But it has to be realized that malice is a state of mind and often is not capable of direct and tangible proof. In almost all cases where it is required to be proved, it has to be inferred from the surrounding circumstances having due regard to the setting background and connected facts in relation to editing and publishing articles of the nature here in question."
11.6. We need not elaborate on the decisions in Goverdhanlal Pitti (supra). and S.R. Venkataraman (supra) since dealt with in paragraphs 8.3 and 8.4 hereinbefore. The principles laid down therein are to be applied in the present case as would be necessary for our present purpose.
11.7. In Shiv Ram Dass Udasin (supra), it was held that --
"In order to bring the case within Section 295A of the Code, it is not so much the matter of discourse as the manner of it. In other words, the words used should be such as are bound to be regarded by any reasonable man as grossly offensive and provocative and maliciously and deliberately intended to outrage the feelings of any class of citizens of India...."
11.8. In Azizul Haq Kausar Naquvi (supra), it was held that it is not at all necessary for the State Government to incorporate in the notification detailed reasons on the basis of which it had formed its opinion.
The Test: The Book:
12. In the light of the principles as discussed above, we may now examine the present case. The offending passages are required to be read in the context of the book as a whole. The language used in the book must be tested in the context in which it has been used, particularly, the circumstances under which it has been so used, as was held in Gopal Vinayak Godse v. Union of India, 1971 Cr. LJ 324 (paras-279, 280 and 283). The book must be written with deliberate and malicious intention to outrage the religious feelings of a class of citizens of India. The perspective and the circumstances in which the book is written is the most relevant factor that requires to be examined.
12.1. The word 'deliberate' preceding the expression 'malicious' in Section 295A restricts the scope and ambit of the definition malicious to malice in fact and not malice in law. Support for such argument may be derived from the ratio of the decision of the Apex Court in the case of Ramji Lal Modi v. State of UP, , wherein unwitting or careless insults to religion has been kept away from the scope of this section. Further when the writing is supported by historical data, it cannot be said to have been written without lawful excuse or justification. Reference can also be made to the report of the Select Committee wherein it has been observed that insults in good faith by a writer for facilitating some measures of social reform ought not to fall within the ambit of this section.
12.2. The book must be considered as a whole, its theme, language, innuendoes, similes and morals [Gopal Vinayak Godse, 1971 Cr.LJ 324 (para-65) (supra). Same is the view taken even in the judgments cited on behalf of the State. In the case of Khalil Ahamad v. State, , the entire book has been taken into consideration and it had been held that the central theme of the entire book was the bad character of Muwaiyya. Similarly, in State, of Mysore v. Henry Rodrigues and Anr., 1962 (2) Cr. LJ 564 (para-4), it has been recorded that the learned Advocate General on behalf of the State did not dispute the contention that the entire article should be read together to gather the intention of the writer. Further in paragraph 5 at page 568 (sub-para 4) of the said judgment, the Mysore High Court proceeded to consider the entire article in order to infer requisite intention of the author. If the aforesaid ratios are applied to the instant case, then the grounds for opinion are to be tested in the backdrop of the entire book, its theme, languages, imageries and morals as a whole.
12.3. The class of readers who read the book and their contemporaneous sentiments must be borne in mind, (See para-13 of the A/K pages 25, 26, 34, 38, 40 and 43 also see Gopal Vinayak Godse (paras-64 and 65) (supra). In this regard, Mr. Bagchi pointed out that similar expressions have been used by the author in earlier books, which have been read by the same class of audience without any impact whatsoever.
12.4. Language of the offending passage is not the sole criterion for determining the existence of intention of the author, Debt Soren and Ors. v. State, AIR 1954 Pat. 254 (para-15). It shall be gathered from the whole of the circumstances in which such speech was made including the audience to whom they were addressed.
12.5. The language used by the author in this book is a colloquial language, which is very common in autobiographical works. The narration of the incidents of violence and bloodshed while protesting against the unconstitutional acts of imposing Islam as the State religion creates the attending circumstances for use of caustic and high-flown language in the passages. It has been held in Joseph Bain D'Souza and Anr. v. State of Maharashtra and Ors., 1995 Cr. LJ 1316, that mere use of high-flown and caustic language due to emotional outburst would not per se fall within the mischief of old sections 153A and 153B of the IPC (para-27), the provisions whereof are similar to those of Section 295A of the IPC.
12.6. The Courts have laid down the test for determining as to what language would be construed to be offensive. It would be profitable to refer to the law declared by the Apex Court in imposing restriction on artistic work particularly in view of the fundamental right of freedom of speech and expression. In this regard, reference may be made to paragraphs 13 and 15 of the case of Ramesh S Chotalal Dalai v. Union of India and Ors., 1988 SCC (Cri) 266 and also in S. Rangarajan v. P Jagjivan Ram and Ors., .
12.7. In S. Rangarajan (supra), the Apex Court had considered various aspects in relation to various decisions by the Apex Court and the Federal Court and had laid down the principle in the following manner:
"35...In democracy it is not necessary that everyone should sing the same song. Freedom of expression is the rule and it is generally taken for granted. Everyone has a fundamental right to form his own opinion on any issue of general concern. He can form and inform by any legitimate means.
36. The democracy is a Government by the people via open discussion. The democratic form of Government itself demands its citizens an active and intelligent participation in the affairs of the community. The public discussion with people's participation is a basic feature and a rational process of democracy which distinguishes it from all other forms of Government. The democracy can neither work nor prosper unless people go out to share their views. ...
*** *** ***
41. 'When men differ in opinion, both sides ought equally to have the advantage of being heard by the public' (Benjamin Franklin). If one is allowed to say that policy of the Government is good, another is with equal freedom entitled to say that it is bad. If one is allowed to support the Governmental scheme, the other could as well say, that he will not support it. The different views are allowed to be expressed by proponents and opponents not because they are correct, or valid but because there is freedom in this country for expressing even differing views on any issue.
*** *** ***
45. The problem of defining the area of freedom of expression when it appears to conflict with the various social interests enumerated under Article 19(2) may briefly be toughed upon here. There does indeed have to be a compromise between the interest of freedom of expression and special interests. But we cannot simply balance the two interests as if they are of equal weight. Our commitment of freedom of expression demands that it cannot be suppressed unless the situations created by allowing the freedom are pressing and the community interest is endangered. The anticipated danger should not be remote, conjectural or far-fetched. It should have proximate and direct nexus with the expression. The expression of thought should be intrinsically dangerous to the public interest. In other words, the expression should be inseparably locked up with the action contemplated like the equivalent of a 'spark in a power keg.' "
12.8. To support the above observation, the Supreme Court relied on various decisions quoting passages therefrom. Some of these decisions would throw light in the present case viz.:
"37. In Maneha Gandhi v. Union of India, , Bhagwati, J., observed: (SCC pp. 305-06, para-29: SCR p. 696)
'Democracy is based essentially on free debate and open discussion, for that is the only corrective of Government action in a democratic set up. If democracy means Government of the people by the people, it is obvious that every citizen must be entitled to participate in the democratic process and in order to enable him to intelligently exercise his right of making a choice, free and general discussion of public matters is absolutely essential.'
38, The learned Judge in Naraindas Indurkhya v. State of Madhya Pradesh, , while dealing with the power of the
State to select text books for obligatory use by students said: (SCC p. 816, para 23: SCR p. 650)
'It is our firm belief, nay, a conviction which constitutes one of the basic values of a free society to which we are wedded under our Constitution, that there must be freedom not only for the thought that we cherish, but also for the thought that we hate. As pointed out by Mr. Justice Holmes in Abramson v. United States, 250 US 616 "the ultimate good desired is better reached by free trade in ideas -- the best test of truth is the power of the thought to get itself accepted in the competition of the market". There must be freedom of thought and the mind must be ready to receive new ideas, to critically analyse and examine them and to accept those which are found to stand the test of scrutiny and to reject the rest'.
39. In Sakal Papers (P) Ltd. v. Union of India, , Mudholkar, J. said:
'... The Courts must be ever vigilant in guarding perhaps the most precious of all the freedoms guaranteed by our Constitution. The reason for this is obvious. The freedom of speech and expression of opinion is of paramount importance under a democratic Constitution which envisages changes in the composition of legislatures and Governments and must be preserved.'
*** *** ***
42. Alexander Meiklejohn perhaps the foremost American philosopher of freedom of expression, in his wise little study neatly explains:
'When men govern themselves, it is they -- and no one else--who must pass judgment upon unwisdom and unfairness and danger. And that means that unwise ideas must have a hearing as well as wise ones, unfair as well as fair, dangerous as well as safe, un-American as well ...American.... If then, on any occasion in the United States it is allowable, in that situation, to say that the Constitution is a good document it is equally allowable, in that situation, to say that the Constitution is a bad document. If a public building may be used in which to say, in time of war, that the war is justified, then the same building may be used in which to say that it is not justified. If it be publicly argued that conscription for armed service is moral and necessary, it may likewise be publicly argued that, it is immoral and unnecessary. If it may be said that American political institutions are superior to those of England or Russia or Germany, it may with equal freedom, be said that those of England or Russia or Germany are superior to ours. These conflicting views may be expressed, must be expressed, not because they are valid, but because they are relevant.... To be afraid of ideas, any idea, is to be unfit for self-government." [Political Freedom (1960) at 27]'.
He argued, if we may say so correctly, that the guarantees of freedom of speech and of the press are measures adopted by the people as the ultimate rulers in order to retain control over the Government, the people's legislative and executive agents.
43. Brandies, J., in Whitney v. California propounded probably the most attractive free speech theory:
...that the greatest menace to freedom is an inert people; that public discussion is a political duty;.... It is hazardous to discourage thought, hope and imagination; that the path of safety lies in the opportunity to discuss freely supposed grievances and proposed remedies; and that the fitting remedy for evil counsels is good ones.
44. What Archibald Cox said in his article though on First Amendment is equally relevant here:
'Some propositions seem true or false beyond rational debate. Some false and harmful, political and religious doctrine gain wide public acceptance. Adolf Hitler's brutal theory of a "master race" is sufficient example. We tolerate such foolish and sometimes dangerous appeals not because they may prove true but because freedom of speech is indivisible. The liberty cannot be denied to some ideas and saved for others. The reason is plain enough: no man, no committee, and surely no Government, has the infinite wisdom and disinterestedness accurately and unselfishly to separate what is true from what is debatable, and both from what is false. To license one to impose his truth upon dissenters is to give the same licence to all others who have, but fear to lose, power. The judgment that the risks of suppression are greater than the harm done by bad ideas rests upon faith in the ultimate good sense and decency of free people. [Society Vol. 24, p. 8, No. 1 November /December, 1986]. *** *** ***
48. In Niharendu Dutt Majumdar v. Emperor, AIR 1942 FC 22: 43 Cr. LJ 504: 46 CWN 9, the Federal Court examined the effects of a vulgar and abusive outburst against the Government made by the accused for which he was convicted under Rule 34 of the Defence of India Rules. Gwyer, C.J., while acquitting the person commented more boldly: (AIR p. 27)
'There is an English saying that hard words break no bones; and the wisdom of the common law has long refused to regard as actionable any words which, though strictly and liberally defamatory, would be regarded by all reasonable men as no more than mere vulgar abuse.'
*** *** ***
The speech now before us is full of them.... But we cannot regard the speech, taken as a whole as inciting those who heard it, even though they cried "shame shame" at intervals, to attempt by violence or by public disorder to subvert the Government for the time being established by law in Bengal or elsewhere in India. That the appellant expressed his opinion about that system of Government is true, but he was entitled to do so; and his reference to it were, we might almost say, both commonplace and in common form, and unlikely to cause any Government in India a moment's uneasiness. His more violent outbursts were directed against the then Ministry in Bengal and against the Governor in Bengal in his political capacity but we do not feel able to say that his speech whatever may be thought of the form in which it was expressed, exceeded the legal limits of comment or criticism."
12.9. The test laid down by the Apex Court in this regard must be the basis to judge all artistic works including the offending passages contained in the instant case. Inasmuch as the test cannot differ, as discussed in paragraph 5.2, hereinbefore, simply because the author herself is not an Indian citizen to claim fundamental right under Article 19(1)(a). The standard of the test, in view of Article 14, must be one and the same and cannot be different.
12.10. In the judgment cited on behalf of the State in Kali Charan Sharma v. Emperor , it has been held that apart from the language, the Court can receive and consider the external evidence to prove or rebut the meaning ascribed to it. Further in the same page in the right-hand column last sub-para, it has been held: "... to judge the intention of the writer from his own declaration in the book, from the nature of the language he has used and from the circumstances in which the book was published." Moreover in the concurring opinion of Banerjee, J. in the said judgment, the whole tenor of the book has been taken into consideration. In view of the law declared in the aforesaid judgments, it cannot be said that language and nothing else can be considered for the purpose of inferring the mens rea of the author. In the instant case, the book is an autobiographical one, where under extreme stressful conditions the author has criticized religion as a whole and, therefore, the requisite mens rea is singularly absent if the whole tenor of the book and the circumstances, in which it was written, is taken into consideration.
12.11. At the same time, the Court cannot seek justification to support the order of forfeiture of the book from any other source other than what is stated in the grounds of opinion [Harnam Das, (supra)]. The enquiry of the Court is to be restricted to the grounds of opinion and on nothing else. When tested in the light of the law declared by the Apex Court in Ramji Lai Modi (supra), the grounds of opinion in the present case do not justify the invoking of Section 295A of the IPC.
12.12. Hence there would be no escape from the conclusion that there was no deliberate and malicious intention of the author in writing the book containing the alleged offending passages for the purpose of outraging the religion and religious feelings of the class of citizens of India, and the grounds for opinion are baseless and irrelevant. The book has already been supplied to this Court. I have occasion to read the whole book. Bare reading of the entire book would show that the crux of the book is an autobiographical work relating to the events occurring in the life of the author and the status of the women in Bangladesh in the socio-religio-politico situation by reason of adoption of State religion in Bangladesh and in no way divulges the requisite mens rea to outrage religious feelings to insult the religion or religious belief of that class of citizens in India. The theme of the book and its context is essentially secular and not in the nature of an insult to religion or religious feelings of that class of the citizens in India. The contents of the offending passages are the opinion of the author based on historical data and the same cannot constitute an 'insult7 or 'attempt to insult' upon the religion or religious belief of Muslims in India. The grounds of opinion are, therefore, contrary to law and cannot form the basis of forfeiture of the book.
Historical basis of the contents:
13. The contents of the writings are no unfounded opinion of the author but are based on sound historical basis as has been stated in para-14 of the affidavit-in-reply at page 14 and Annexure 'B' thereto. It has been held in Varsha Publications Put. Ltd. and Anr. v. State of Maharashtra and Ors., 1983 Cr. LJ 1446 (para-12), that historical perspective of an article cannot be stated to be absolutely alien when it falls for consideration as to whether the said article falls within the ambit of the offending section. Further in the case of Gopal Vinayak Godse (paras-262, 265, 266 and 267) (supra), various historical articles were taken into consideration in testing as to whether the offending passages fell within the ambit of Section 153A of the IPC.
13.1. Historical perspective and a discussion based thereon without the requisite metis rea does not and cannot fall within the ambit of Section 295A of the IPC. Distortion of history may lead to an inference of necessary mens rea but such inference cannot be drawn in the instant case due to existence of ample historical support.
The Book and The Message:
14. The message i.e. the central theme of the book, as we find after having read it as a whole, is not religion, not to say of a particular religion or religious belief of a particular class of citizens of India nor of Bangladesh. The theme centers the maladies in the life in Bangladesh. It expresses her conviction, her philosophy that the social evils, ills, malaise are supported and sanctioned by religion and this must be brought to the notice of the people through an administration of shock. In the process, she referred to the religion in general. The word "Paroloukik Mulo" means Spiritual Carrot, a tempting offer/lure for life after death, a temptation/lure assuring a better life in the other world, a method applied by the religion to lure people to do certain things in the name of religion. In the same article, she refers to religion in general, without meaning any particular religion, as the root cause of all social evils, malaise and maladies; religion has spread darkness; it has never done good to the society; the religion exploited ignorant people, creating an imaginary fear for life after death; and she has accused all the religions for that and then points at some as instances in the context and then again without confining to one religion only.
14.1. In the same book, there is one chapter titled "Lajja Hinata" (Shamelessness). In the said chapter of the book at page 276, she has written that the fundamentalists in their journals had been describing her as traitor and scar-religious. She has regretted that Farhad Mazhar and Ahmed Chhafa had been accusing "Lajja" (Shame), another book authored by her, as the obstacle between the assimilation of two Bengals for creating a situation for riot. She had written that Farhad Mazhar had also written that by a stroke of pen. Bangladesh was converted into communal State and are worried about the Hindu Bharat. If properly, examined, it would appear that Bangladesh was responsible for the demolition of Babri Masjid. Quoting Shib Narayan Roy, an author, she wrote that behind the musk, all of us (them) are communal and devoted to our own religion, though the educated Bengalees claimed themselves to be modern, yet in their life and history, symbol of this admission is not available. Bengalees have not yet acquired the realization of humanity even today overcoming his Hindu or Muslim identity. She quoted Sofi Ahmed, another author, who admitted that vice of communalism exists in all of us (them). If a sore is covered, it does not mean that there is no sore. One must have the courage to admit it. Only when the disease is ascertained, the same can be treated. They were born in communalism and had proceeded for the last 46 years during the same and it is ingrained in the conscious and unconscious existence of all. It has not only been the vehicle of exploitation of the powerful exploiter, but behind the musk all of us (them) nourish and cherish it within. Sofi Ahmed also said that if undaunted life drags it and opens it and removes the latch, he would welcome and only by exposing the hidden shame, life may become transparent and clean. "Lajja" (the book) will not invite danger but '"Lajja" will reunite us (them) meaning the two Bengals. When the Government is indisposed towards her, it is very difficult for someone to right in favour of Lajja, even then some had written in favour of Lajja. At page 277, she writes quoting Bashir Al Helal, a renowned writer, that Hindu will write about Muslim and Muslim will write about Hindu. This is natural. Does the Government think that this will harm the State? No, it does not harm; it helps. If Muslims are tortured in Bharat, then we (they) can show that look here, our (their) writers have written this Novel about Hindus. This is a pride; this is humanity. One cannot hide truth. At the time of reading history of literature, such books would be searched. Then this novel written by Taslima Nasreen would save our (their) face, piercing all darkness. This novel would usher itself with all its brightness and then we (they) will say that Taslima had written an extraordinary novel, that hits and hits hard and whatever she has written is the truth. Someone may like it or may not, but this is truth and pure truth.
14.2. In another chapter "Manabrupi Saitan" (Satan in Human Guise) at pages 308-09, she had dealt with inheritance and the inequality for the women in law among the Muslims. She also pointed out the inequality in the law with regard to inheritance by women under the Law of Succession governing the Hindus where the woman is dependent either on the father or the husband or the son and had to live her life all through as an orchid embracing a tree, the man. The society would not allow woman to become free and self-dependent. Society wants her to be helpless, hopeless and hapless. The Hindus go by their scriptures. The Muslims also do not go beyond their scriptures. But law does not distinguish between Hindu and Muslim. There is a conflict between religion and civilization. If the law is not civilized, human will never be civilized. Law can neither be Hindu nor be Muslim. If it is maintained, the same is uncivilized. If the human is to be civilized, a civilized law is necessary. A strict law is required to be enacted for this uncivilized inequality of non-modern, down-graded people in respect of inheritance, marriage, divorce, custody of child and there would be no discrimination between male and female, all human should be equal whether he is Hindu or Muslim or Bouddha or Christian in faith. She had been writing in relation to the law of inheritance of Hindu, Bouddha, Christian and Muslims. Some of the women had asked her why she was dealing with the law of inheritance. Instead of writing about these things, she should write how to beat male. According to her, a girl is also a full-fledged human being. She is not a lesser child than a male child. She is not less intelligent less important. She has also written about polygamy and the law providing the requirement of permission of the Court instead of the wife, as not an enactment desired. Instead, a civilized society is necessary, a human-law is necessary, not of religion, not of lies or untruth, not an insulting law. She had also pointed out that in order to prove chastity, the male folk had invented iron chastity belt. Male had also burnt the bride alive at the pier of her husband to prove her chastity. The male are still breaking the chastity of the women by enacting different customs/ systems. She said that it is necessary that the women should emancipate themselves.
14.3. Apart from these passages, there are various other passages, which expose the worries, anxieties and innermost helplessness inside the mind and heart of the author about the social inequalities because of some religious sanction, which cannot be justified in the context of human morality and natural justness and against the concept of natural equality. This exasperation and depressing state of mind had driven her to use her pen for revitalizing the courage of the citizens of Bangladesh to break shackles and emancipate themselves and think about the humanity in the contemporary humanitarian morality and beliefs contrary to the religious tenets, which can no more be justified in the present day context. The oppressive abominable state of the women to which they have been put according to the religious tenets, which cannot form the law of the land and no civilized Government is expected to support the same, and the switching over to a theocratic State from a secular one only for a particular purpose of remaining in power by abating the misconceived religious sentiment, keeping the women behind parda and driving them to lead a sub-human life and to be treated as a slave of medieval period, are neither desirable nor permissible in this modern days.
14.4. The above passages reveal her secular conviction. It expresses her constructive thoughts and philosophy of life. It indicates her intense concern for the humanity. She has never intended to insult any religion or religious belief. She criticized the ills and maladies of the religious sections for sub-human status of the women. The criticism, as it reflects from the book read as a whole, is constructive not destructive. She is championing a mission, a mission of emancipation of humanity and human rights of the women in Bangladesh from where she had been driven out because of the religious fundamentalism aided by the theocratic State machinery sanctioned by adoption of a State religion.
14.5. This attitude is apparent from the book if read as a whole. The offending passages do not lead to an impression to the extent as has been sought to be argued by Mr. Roy. On the other hand, it helps the people to realize the ills perpetrated in the society in Bangladesh the name of religion and has been written not for the purpose of criticizing the religion or for the purpose of hurting or outraging anybody's feeling or for insulting the religion or religious feeling but for a particular purpose to administer a shock for revolutionizing the frozen dormant ideas and attitude of the people of Bangladesh to come out of these ills to help emancipation of the women in the society and to give the women their due.
14.6. The reading of the whole book reflects that the author has been carrying a message for the people in Bangladesh with regard to the maladies in the society sought to be supported/sanctioned by religion since made a State religion converting a secular democratic State into a theocratic one. This she was abhorring. The entire book is vibrant with her message that women are equal to men and that there is no discrimination between men and men, women and women, men and women. All are members of the humanity irrespective of religious belief or faith. She criticized not one religion, not one society. She criticized all the religions, Hindu, Bouddha, Christian and Islam and had pointed out to the maladies in the society sanctioned by scriptures of the people's faith in the religion they follow even at the cost of humanity and humane philosophy. It is vibrant in every passage of the book that she was concerned for the people of Bangladesh, particularly, the women and the impact of the governance by a theocratic State. She had attempted to voice the suppressed voice of the people of Bangladesh. She attempts to be the lone voice like the child to call the king naked. A reading of the book leaves a thought hovering in the mind with the vibrant ideas of emancipation of women from the maladies of the society. The intention was to point out to the ills of the society and the mis-justification of these maladies through sanction of religion.
14.7. The reading of the whole book does not create any impression that anything written in the book in any passage was aimed at hurting the feelings of any religious faith or belief. The intention is clear from the whole book that she had never criticized any religion for the shake of criticism or from any hatred for that religion. She appears to be impartial with regard to all the religions, which sanctions oppression of women in the society, which sanctions inequality of the women in the society, which sanctions subjugation of the women in the society, which sanctions against freedom of the women, against emancipation of the women, against independence of the women. In the process, she had criticized her own religion as well. But the intention was never deliberate and malicious and was never aimed at outraging the religious feelings or to insult the religion or religious beliefs, which she herself follows and has never denounced.
14.8. Following a religion by herself, if she points out the ills of that religion following a particular purpose, for a particular aim, for a particular movement, all focused only towards emancipation of women and to focus on the malaise and ills of the society and the religio-politico scenario of her own State, then it cannot be gathered from the surrounding circumstances and the book itself that her intention was to outrage the religious feeling to insult the religion or religious belief of the faithfuls of which she herself is one and then by no stretch of imagination it cannot be said that she had ever intended to outrage the religious feeling to insult the religion or religious belief of the faithfuls in India. From every passage of the book, it is vibrant that she was gravely and grossly concerned only for the people of Bangladesh and had diverted all her thoughts, beliefs and criticism towards the Government of Bangladesh.
15. The entire book, which is an autobiographical work of 395 pages, has been forfeited. The ground for forfeiture relates to certain passages contained in two pages only namely pages 49 and 50. When the book is read as a whole, the opinion expressed by the author in the said two pages do not reflect the central theme and moral of the book which are essential considerations for forfeiting the entire book [Gopal Vinayak Godse (paras-65 and 283) (supra)].
15.1. In the light of the discussion made hereinbefore having regard to the established principles of law governing the field, the book read as a whole, (1) does not reflect that the book was concerned with the Indian scenario and by no stretch of imagination could any passage be construed to have ever been intended to mean and apply to the citizens of that class in India; (2) does not reflect any intention of outraging the religious feelings to insult the religion or religious belief of that class of citizens in India; (3) the intention that could be gathered from the context and the theme of the book, by no stretch of imagination can be called deliberate and malicious for achieving any object of religious hatred; (4) it appears to be vibrant with the thoughts and philosophy of life conceived by the author having regard to the context and situation and the plight of women in the society in Bangladesh; (5) it appears to be directed against the malaise and ills of the society sought to be supported and sanctioned in the name of religion in general; (6) particularly, in the context of adoption of State religion in Bangladesh by the then ruler purporting to support such sanction through State machinery at the cost of democracy and secularism, the salient features of the Constitution of Bangladesh; (7) in the context of the socio-religio-politico situation in Bangladesh, the author had intended to administer a shock in order to revolutionize the feelings and sensitize the attitude of the people of Bangladesh towards women clamouring for equality; (8) read in the perspective of the whole book, one would be left with the impression of the author's philosophy of equality between men and women, between women and women, between men and men and above all the humanity with a perfectly secular outlook which the State has to follow and the law is to be enacted applicable to the humanity irrespective of the caste, creed and religion affording equality to all, a principle enshrined and vibrant as the soul of the Constitution of India.
15.2. Thus, the grounds sought to be put forth to support the forfeiture cannot be sustained as is rightly held and set aside by My Lord Mr. Justice Basu and I concur with the decision and the direction given by His Lordship in the judgment.
Alok Kumar Basu, J.
16. The Government of West Bengal by a notification dated 30th April, 2004 forfeited a book in Bengali entitled 'Dwikhanditd1 written by Taslima Nasreen and published by Sibani Mukherjee, Peoples Book Society, 12C, Bankim Chatterjee Street, Calcutta - 700073 forming its opinion to this effect that the said book at pages 49-50 beginning with paragraphs 1 and 2 as per schedule of the notification contain matter with deliberate and malicious intention of outraging the religious feeling of Muslims in India and insult or attempt to insult religion and religious beliefs of Muslims and all those who accept Mohammed as their Prophet and such deliberate and malicious intention of outraging the religious feeling of Muslims in India and insult and attempt to insult religion and religious beliefs of the Muslims is punishable under Section 295A of the IPC and on such ground, the Government exercising its power under Section 95 of the Cr. PC passed the order of forfeiture with all its legal consequences as contained in Section 95 of the Cr. PC.
17. The notification dated 30th April, 2004 with reference to the offending paragraphs appearing at pages 49-50 of the book in question also clarified the said ground behind the order of forfeiture as is evident from the notification itself which is annexed to the application filed by Sujato Bhadra.
18. The petitioner before us filed the petition under Section 96 of the Cr. PC registered as C.R.R. No. 1621 of 2004 to challenge the said notification regarding forfeiture of the book in question as under the provision of law, Section 96 was the enabling section for any aggrieved party, having any interest in the book in question to challenge a notice of forfeiture made under Section 95 of the Cr. PC.
19. Under the provision of Section 96 Cr. PC, a Bench consisting of three learned Judges of this Court is required to hear and dispose of a petition filed under Section 96 of the Cr.PC challenging a notice of forfeiture and accordingly, such a Bench had the occasion to hear the submission of both the petitioner and the State Government over a number of days.
20. Although at the time of hearing, following the general practice and procedure, Mr. Joymalya Bagchi representing the petitioner addressed the Bench at first and placed his points in support of the present application filed under Section 96 of the Cr. PC and Mr. Balai Roy, the learned Advocate General appearing for the State Government supported the notice of forfeiture later, for the sake of convenience and brevity, we would like to highlight submissions made on behalf of the State Government by Mr. Roy at first, since under the provisions of Section 96 of the Cr. PC in the face of challenge thrown against the notice of forfeiture, the duty of the State Government would be to defend the same.
21. Mr. Roy in his introductory address submits that Section 95 of the Cr. PC is a special weapon in the armoury of the State to maintain social order, communal harmony, public tranquillity and also to prevent public distrust and social tension and Constitutional validity of both Section 95 of the Cr. PC and Section 295A of the IPC has been upheld by the Apex Court earlier in severat decisions.
22. Mr. Roy contends that the State Government is required to apply the provision of Section 95 of the Cr.PC strictly in accordance with the mandate of the legislature as reflected through the section itself relating to a book or other documents as clarified in the section. Mr. Roy contends that on examination of pages 49-50 of the book with special reference to the paragraphs detail of which has been given in the schedule of the notification, the State Government was satisfied that there was deliberate and malicious intention on the part of the writer of the book of outraging the religious feelings of Muslims in India and insult or attempt to insult religion and religious beliefs of Muslims and all those who accept Mohammed as their Prophet. Mr. Roy contends that the paragraphs on which the State Government acted upon for issuance of the notification of forfeiture also squarely satisfied the ingredients of Section 295A of the IPC as the deliberate and malicious intention of the writer was writ large on the face of those offending paragraphs appearing at pages 49-50 of the book.
23. Mr. Roy contends that according to uniform judicial verdict, the State Government before issuance of forfeiture, must form its opinion behind such forfeiture with reference to the materials available from the book in question and which, according to the State Government, established the basis of the opinion and shall have the ingredients of Section 295A of the IPC and on examination of the notification itself, it would appear that the State Government specifically mentioned the offending passage in the schedule of the notification and the State Government recorded as many as four grounds to form its opinion in support of the forfeiture.
24. Mr. Roy submits that the language employed by the writer in writing the offending paragraphs of the book is the deciding factor and the essential ingredients to attract the penal provision of Section 295A of the IPC shall be deduced from the language of the book and the manner of its expression.
25. The intention of the writer is to be derived from the language employed and from the manner of expression contained in the book and to support this view Mr. Roy has drawn our attention to the ratio of decisions in the case of Khalil Ahmed v. State, , in the case of Kali Charan Sharma v. Emperor, , in the case of State of Mysore v. Henry Rodrigues and Anr., reported in 1962(2) Cr. LJ page 564 and in the case of In re: P. Ramaswamy, reported in 1962(2) Cr. LJ page 146.
26. Mr. Roy after quoting the offending paragraphs as mentioned in the schedule of the notification submits that the author has used such abusive language about the Prophet that one is bound to conclude that the author deliberately intended to outrage the religious feelings of a class of citizens of India. Mr. Roy submits that malice appearing in the language of the author has to be understood not in a popular sense, but, the test to determine malice should be whether the act is done wrongfully and wilfully without reasonable or probable cause and not necessarily done from ill feeling and spite, it is a deliberate act to disregard the rights of others.
27. To substantiate the above points Mr. Roy has referred to the decision in Use case of S. R. Venkataraman v. Union of India and Ors., .
28. Mr. Roy contends that it cannot be any defence on the part of the writer that through abusive language the writer projected the truth or the writer used the same for some social reform or that the writer gathered the impetus from the historical data, in other words, Mr. Roy submits that justification cannot be pleaded if ingredients of Section 295A of the IPC are made out from the language used by the author. Mr. Roy in this context relied on the decisions in the case of Shiv Ram Dass Udasin v. Punjab State, and in the
case of Azizul Haq Kausar Naquvi and Anr. v. State, reported in 1980 Cr. LJ page 448.
29. Mr. Roy finally submits although the State Government earlier issued a notification of forfeiture regarding the self-same book, there cannot be any legal bar for cancellation of the earlier notification for some technical reasons and to come out with a new notification containing the fresh grounds of forfeiture.
30. Thus, according to Mr. Roy since from the offending passage as mentioned in the schedule of the notification, it has been amply demonstrated that the author deliberately and with malicious intention outraged the religious feelings of the Muslims in India and religion and religious beliefs of Muslims and all those who accepted Mohammad as their Prophet, the State Government rightly exercised its power under Section 95 of the Cr. PC by issuing the notice of forfeiture of the book entitled 'Dwikhandita' which contains such offending matter as appearing in pages 49 and 50 of the said book and there is no ground to set aside the order of forfeiture as published through the notification dated 30th April, 2004.
31. Mr. Bagchi appearing for the petitioner submits, first of all, supporting the locus standi of the petitioner and his entitlement to file the present application under Section 96 of the Cr. PC to challenge both the legality and propriety of the order of forfeiture.
32. Mr. Bagchi next submits that it will appear from the annexure to the petition that earlier the State Government issued another notification dated 27th November, 2003 and challenging that notification the petitioner filed C.R.R. 182 of 2004, but, subsequently the State Government got that notification cancelled and came out with the present notification dated 30th April, 2004 and Mr. Bagchi contends that the second notification is improper and it also speaks of the arbitrary and highhanded act of the State Government in suppressing the fundamental right of its citizen.
33. Mr. Bagchi next submits that the present order of forfeiture published through the notification dated 30th April, 2004 is prima facie, bad in law and inoperative since there is no ground behind the order of forfeiture.
34. To elaborate his challenge against the order of forfeiture on merit, Mr. Bagchi contends that language can never be the decider in support of a notification of forfeiture, because, in order to attract the provision of Section 295A of the IPC and also to come within the mischief of Section 95 of Cr. PC, it must be proved that the author had both deliberate as well as malicious intention to outrage the religious feeling and belief of a class of citizen and the author deliberately with malicious intention insulted Mohammed, the Prophet of Islam.
35. Mr. Bagchi submits that in order to prove the ingredients of deliberate and malicious intention, language alone would not suffice and to read such malice in the action of the author, the entire context is required to be examined and if on reading of the entire text of the author, it can be shown that the author had real intention with malice and deliberate exposure to outrage the religious feeling then only the State would be justified in issuance of the notice of forfeiture.
36. Mr. Bagchi submits that after going through the different decisions on the subject it would be very much clear that since Section 95 of the Cr. PC read with Section 295A of the IPC is a reflection on the freedom of speech and expression, judicial opinion has been uniform that even if the author uses harsh language and thereby if there is any likelihood of outraging of religious feeling of a class of citizen, it requires serious consideration whether the author made a true expression and the comments of the author are based on historical data and empirical research and if it can be shown that the author satisfied all the tests, the creation of the author cannot be brought within the mischief of Section 95 of the Cr. PC.
37. Mr. Bagchi during his submissions referred to the relevant extracts of the holy Koran and other historical works of reputed authors and also works of reputed sociologists in support of the offending passages which were referred to in the schedule of the notification and submits that the author expressed her thought through the language contained in the alleged offending paragraphs being supported by historical data and empirical research. Mr. Bagchi, therefore, concludes that this Bench exercising its power under Section 96(4) of the Cr. PC would quash the impugned notification in order to champion the fundamental right of speech and expression as enshrined in our Constitution.
38. To cover his fourth point, Mr. Bagchi submits that the notice of forfeiture also appears to be illegal and improper since the definition of book appearing in Press and Registration of Books Act, 1867 does not permit the State Government for forfeiture of the entire book in view of a small portion of the alleged offending passages and at best, the State Government could make, a forfeiture relating to the alleged offending passages only leaving aside the rest of the work of the author.
39. Mr. Bagchi in support of his above points has referred to the ratio of decision reported in the case of Gopal Vinayak Godse v. Union of India, reported in 1971 Cr. LJ page 324, in the case ofRamji Lal Modi v. State of U.P., , in the case of Ramesh S/o. Chotalal Dalai v. Union of India and Ors., reported in 1988 SCC (Cri.) page 266 and that apart Mr. Bagchi also referred to the relevant portion of the Law of Lexicon and the Black's Law Dictionary.
40. Having regard to the submissions made by Mr. Roy in support of the impugned notification of forfeiture and the submissions of Mr. Bagchi in support of the petition filed under Section 96 of the Cr. PC for quashing the impugned notification, we find that petitioner has locus standi and is also entitled to file the present petition under Section 96 of the Cr. PC and in fact, Mr. Roy has not challenged the locus standi of the petitioner during his submission.
41. As regards the submission of Mr. Bagchi that the second notification dated 30th April, 2004 is improper and illegal in view of an earlier notification of the self-same nature, we are of the view that there is no legal bar so far provisions of Section 95 of the Cr. PC are concerned for the State Government to publish a second notification if in its opinion the first notification suffers from any technical defect and in view of this legal position, we are inclined to reject the contention of Mr. Bagchi raised in this behalf.
42. So far the present notification of forfeiture dated 30th April, 2004 is concerned, we find that the State Government duly notified the grounds of its opinion behind the forfeiture and it also distinctly clarified those grounds with reference to the alleged offending passages which form a schedule of the notification and thus, so far form and its contents are concerned, we are of the view that the notification is prima facie valid and enforceable in law.
43. Having regard to the definition of book appearing in Press and Registration of Books Act, 1867 and on close examination of the scope of Section 95 of the Cr. PC, we do not find any ground to support the contention of Mr. Bagchi that forfeiture could have been made only relating to the alleged offending passages appearing in a book, because, on examination of the definition of book, we do not find any such provision as contended by Mr. Bagchi. rather, in our considered view, even if a small portion of a book contains offending passages, the entire book is liable to be forfeited and that was the spirit of the law contained in Section 95 of the Cr. PC.
44. Now, comes the crucial question for determination whether there is justification behind the grounds formed by the Government in the matter of forfeiture of the Bengali book entitled 'Dwikhandita' for the alleged offending passages containing in the paragraphs appearing at pages 49-50 of the book and specifically mentioned in the schedule to the notification.
45. We have considered the submissions of both Mr. Roy and Mr. Bagchi carefully in the background of different decisions cited by both of them. To appreciate the submissions of both the sides, it would not be out of context to give a brief legislative history behind incorporation of Section 295A of the IPC, which occupies the center position in our present discussion as to the validity of the order of forfeiture.
46. Before incorporation of Section 295A, Section 153A of the IPC was in the field as a weapon in the State armoury to prevent the alleged offending publication of any form so as to preserve public peace and social order and to prevent hatred and mistrust among different classes of citizen.
47. The Government by Section 2 of Act XXV of 1927 for the first time introduced Section 295A in the IPC and the Select Committee in their report behind enactment of that Section stated that:
"the essence of the offence is that the insult to religion or the outrage to religious feelings must be the sole or primary or at least the deliberate and conscious intention. Further we were impressed by an argument to the effect that an insult to a religion or to the religious beliefs of the followers of a religion might be inflicted in good faith by a writer with the object of facilitating some measures of social reform by administering such a shock to the followers of the religion as would ensure notice being taken of any criticism so made. We have, therefore, amplified the words 'deliberate intention' by inserting reference to malice and we think that the section which we have now evolved will be both comprehensive and at the same time not too wide an application".
(Emphasis supplied by us)
48. It is general rule of interpretation that legislative intention is an effective instrument to understand the scope and ambit of a particular section and while applying the section both in its letter and spirit, judicial attempt must be to honour the legislative intention.
49. Keeping in view, the above rule of interpretation, if we look at the report of the Select Committee, we find that to attract the ingredients of Section 295A of the IPC, primarily we are to examine whether to insult a particular religion or to outrage religious feelings of a particular citizen is the sole or primary or at least the deliberate and conscious intention of the author and it was also available from the report of the Select Committee that harsh and even somewhat abusive language used by an author is permissible if it is done in good faith with the sole and primary object of facilitating some measures of social reform by administering literary shock to the followers of that particular religion as would ensure notice being taken of, any such criticism so made through the literary work and finally, the Select Committee was of the view that the section itself would not have too wide an application unless infected with deliberate intention apparent from the relevant writing of the author.
50. On examination of the judgment of the Hon'ble Supreme Court in the case of Ramji Lal Modi v. State of U.P., we find that the Hon'ble Chief Justice S.R. Das while delivering the judgment on behalf of the Bench reflected the feeling of the Select Committee when His Lordship was pleased to observe at para 9 of the said judgment as follows:
"in the next place Section 295A does not penalise any and every act of insult to or attempt to insult the religion or the religious beliefs of a class of citizen which are perpetrated with the deliberate and malicious intention of outraging the religious feelings of that class. Insult to religion offered unwittingly or carelessly or without any deliberate or malicious intention to outrage the religious feeling of that class, do not come within the section. It only punished the aggravated form of insult to religion when it is perpetrated with the deliberate and malicious intention of outraging the religious feelings of that class".
51. Thus, in our considered view, if we bear in mind the report of the Select Committee behind the enactment of Section 295A of the IPC along with the observation of the Hon'ble Supreme Court given in the application of Section 295A as appearing in the case of Ramji Lai Modi (supra), one thing is very clear that mere language whatever abusive that might be, cannot be the sole decider in judging a question whether the State Government was justified in issuance of a notice of forfeiture relating to a piece of literary work which contains alleged offending passage amidst the entire volume of said literary work and the real criterion to attract the mischief of Section 95 of the Cr. PC so also the ingredients of Section 295A of the IPC would be to judge whether the author through the alleged offending passage expressed a deliberate and malicious intention to insult the religious feelings or to outrage the religious beliefs of a class of citizen or to insult any religious leader whom a particular class of citizen keeps in high esteem.
52. We are also of the view that from the report of the Select Committee, it is also clear that Section 295A of the IPC must not have too wide of an application unless there is element of 'deliberate intention' of the author coupled with malice and at the same time, the author must get a premium even if the author is found prima facie responsible for the charge of insult to a religion or to the religious beliefs of the followers of a religion, if it is found on examination of the entire literary work that the author in good faith inflicted the insult with the sole object of facilitating some measures of social reform by administering a shock through such insult so as to ensure notice being taken of any criticism so made.
53. From paragraph 64 of the judgment of the Special Bench of Bombay High Court in the case of Gopal Vinayak Godse v. Union of India and Ors., (supra) it is found that the
Special Bench although determining sustainability of a charge under Section 153A of the IPC made certain observations which would not be out of context in this case also and those observations were as follows:
"1. It is enough to show that the language of the writing is of a nature calculated to promote feelings of enmity or hatred for a person must be presumed to intend the natural consequences of his act.
2. The matter charged as being within the mischief of Section 153A 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.
3. 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."
54. We would also like to refer the yardstick indicated by the celebrated Judge Vivian Bose in the case of Bhagwati Charan Shukla v. Provincial Government, reported in AIR 1947 Nagpur page 1, where in an identical situation His Lordship at page 18 of the said judgment observed that:
"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. This, in our opinion, is the correct approach in judging the effect of exhibition of a film or of reading a book. It is the standard of ordinary reasonable man or as they say in English law "the man on the top of a clapham omnibus"."
55. From the abovementioned discussion, our endeavour has been to establish the point that on reading Section 95 of the Cr. PC along with Section 295A of the IPC as a whole, one must get the concept that to support an action of forfeiture regarding any literary work on the ground that offending passage reflects deliberate and malicious intention of the author to outrage religious feeling of a class of citizen, language alone cannot be a deciding factor and to support the action of forfeiture, the entire literary work must be read to deduce the deliberate and malicious intention of the author.
56. Our endeavour would get further factual support if we analyse briefly the fact of three cases relied on by Mr. Roy for the State, namely, Khalil Ahmed v. State, , the case of Kali Charon Sharma v. Emperor, , and the case of the State of Mysore v. Henry Rodrigues and Anr., reported in 1962(2) Cr. LJ page 564.
57. In the case of Khalil Ahmed, the writer of the book reacted through his book against some pamphlets issued from the opposite camp dealing with the character of 'Muawiya', religious leader and historical figure held in great regard by class of Sunney Muslims and judging the language used by the writer and in the context such language was used, the learned Judges observed that the language was sufficient to hold conclusively that deliberate intention of the writer was to outrage religious feelings of admirers of 'Muawiya'.
58. In the case of Kalicharan Sharma v. Emperor, author Kalicharan wrote the book in Hindi entitled 'Bichitra Jiwan' which purported to treat the life of the Prophet Muhammad and judging the language of the book and considering the purpose of the author behind writing the book and the context in which the book was written, it was held that the writer did not author the book with a spirit of missionary, but, the author indulged himself in simple polemics dealing with the character of Prophet Muhammad who was held in high esteem by his followers and in that background, it was held that the language itself was sufficient to hold the author guilty of the charge under Section 153A of the IPC.
59. In the case of the State of Mysore v. Henry Rodrigues and Anr. (supra), it was found that the accused published a series of articles criticizing the beliefs and practices of the Roman Church in vile and abusive language which were likely to insult and offend the followers of the Church and on that reasoning, judging the language along with the deliberate intention of the author, the author was held guilty of the charge under Section 295A of the IPC.
60. From all the abovecited decisions, one thing is common and significant that author of all those books, pamphlets and articles primarily dealt with religious matters and primarily made religious leader subject of attack without having any literary background and considering the language primarily it was not much difficult to hold that the primary object of the author had been to outrage the religious feelings or religious beliefs of a class of citizen or to insult or attempt to insult the religious leader of a particular class of religion.
61. Now, coming to the present order of forfeiture relating to the Bengali book entitled 'Dwikhandita', we find that the book was an autobiography of the writer and it was the third part of the entire autobiography which is commonly known as trilogy in the literary parlour.
62. The author is a doctor by profession and being enthusiastic about the need of social reform of the motherland which is now called Bangladesh, the author utilised literary power to serve the purpose of social reform.
63. The autobiography was written in the background of socio-economic scenario of Bangladesh and we get from the book in question that by writing separate, but, not altogether unrelated chapters and by reflecting various social and personal episodes, the writer, in fact, presented a horrible social scenario of Bangladesh after its liberation from the rule of invaders. The writer like other reasonable and sensible citizen of the country dreamt of a sweet dream about the future of the country which was new born and like any other sensible and reasonable citizen sincerely expected that the dream of the founding father of a new born nation would be fulfilled. The writer being a woman was very much conscious of the deplorable condition of the women folk of the country and through the different chapters of the autobiography, the writer narrated the appalling condition of the womenfolk of the country, their illiteracy, their superstition and their total subordination under the male folk.
64. The writer was particularly shocked when with the change of administrative control, the country switched on to a new theocratic State with a particular religion as the State religion and the author was very much shocked and expressed her anger and sorrow when it was noticed that in the new set up the women folk would be at the receiving end and in that background to attack the new administrator of the State which professed a particular religion in establishing its control over the general people subjugating the women in particular, the author found that a particular religion was a regimenting force behind the new oppression ushered by the new administrator and at that juncture at chapter 5 of the book 'Dwikhandita' under the caption of 'paroloukik mulo' author gave ventilation to the thought and describing religion at the root of all trouble in that particular country, it was observed that religion can never bring light to the society, rather, in the name of religion oppression becomes permanent.
65. The author gave a historical background of a particular religion and in that process, pointing out the profounder of the religion as the main cause of all trouble in the realm of religion, particularly, for the oppression of the women folk ultimately the author pointing out finger at the profounder of the religion, ridiculed the entire population of the State.
66. It is established position of law that there cannot be any justification for an author to claim exoneration from the charge of forfeiture if it is proved that the author deliberately with malicious intention by writing outraged the religious feelings of a class of citizen or insult or attempt to insult the religious beliefs or the leader of a religious class whom the people at large keep in high esteem.
67. But, the question would be whether after reading paragraphs 1 and 2 at pages 49 and 50 of the book and mentioned in the schedule to the notification, we can share the view of the State Government that there were sufficient grounds to form the opinion that the offending passage comes within the mischief of Section 95 of the Cr. PC read with Section 295A of the IPC.
68. After going through the decision of Gopal Vinayak Godse (supra) together with Ramji Lal Modi (supra) and after bearing in mind the report of the Select Committee behind incorporation of Section 295A of the IPC, we are of the view that after reading the entire book 'Dwikhandita' which contains not less than 395 pages, we really find it difficult to share the view of the State Government that the offending passages even if contain most harsh language against the Prophet Mohammed can be stated to have expressed the deliberate and malicious intention of the author to outrage the religious feelings or religious beliefs of the Muslim citizen of this country. Here, in this context, we once again reiterate the observation of the Special Bench recorded in the case of Gopal Vinayak Godse (supra) at para 64 that consequence of the writing must be considered taking into consideration the class of readers for whom the book is primarily meant as also the state of feeling between the different class and communities at the relevant time and at the same breath, we want to reiterate the observation of Hon'ble Justice Vivian Bose given in Bhagawati Charan Shukla (supra), where it was held that the effect of the words must be judged from the standards of a reasonable, strong minded, firm and courageous men and not those of weak and vacillating mind nor all those who scent danger in every hostile point of view.
69. Further in our considered view the entire book 'Dwikhandita' was written with the sole purpose of narrating the social and political scenario of a country and with a view to giving words of caution as a social reformer regarding the danger of State religion and the prospect of a theocratic State and in that background, the passages mentioned in the schedule of notification, in our considered view, do not and cannot be termed as deliberate and malicious intention of the author to outrage the religious feelings or religious beliefs of a class of citizen.
70. Thus, having regard to the entire contents of the book and having regard .to the scope and ambit of Section 95 of the Cr. PC vis-a-vis Section 295A of the IPC and having regard to the different ratio of decisions cited at the Bar, we are of the considered view that the order of forfeiture contained in the notification dated 30th April, 2004 was improper and not sustainable in law and the same is liable to be quashed.
71. Accordingly, exercising power under Section 96(4) of the Cr. PC we quash the notification dated 30th April, 2004 and we further direct the State Government to return each copy of the book if forfeited under the impugned notification to the person from whom such forfeiture was made.
72. We also dispose of the other two applications being CRAN 486 of 2005 and CRA 5001 of 2005 being not maintainable in law in view of specific provisions of Section 95 and Section 96 of the Code of Criminal Procedure. As a result, CRR 1621 of 2004 succeeds in full.
73. Having regard to the fact and circumstances, parties to the proceeding are directed-to-bear their own costs.
74. Urgent xerox certified copy of this judgment, if applied for, may be supplied expeditiously after complying with all necessary formalities.
Soumitra Pal, J.
75. I had the privilege of perusing the judgements prepared by Their Lordships the Hon'ble Dilip Kumar Seth, J. and the Hon'ble Alok Kumar Basu, J. and I agree with the reasons contained therein. However, I add a few words. The petitioner in the instant application has challenged the impugned notification being annexure P-2 to the application. The said notification is as under:
Whereas in the opinion of the Governor a book in Bengali entitled 'Dwikhandita' written by Taslima Nasreen published by Sibam Mukherjee, Peoples Book Society, 12C Bankim Chatterjee Street, Kolkata-700 073 and prints at ...Process P-128, C.I.T. Road, Kolkata-700 014 (hereinafter referred to as the said book) contains matters portion of which is described in the Schedule below: SCHEDULE
Paragraph beginning with Paragraph ending with (1) 'Kichetei Ami Mene Purush Tar Dhan Sampad Byay 49-50 Nite Parina.... Kore
(2) Ki Balbo Aai Halo Amader Achey Rajnitir Khela
And whereas the Governor is further of opinion that the matters written in the said book contained the passages quoted in the Schedule have been published with deliberate and malicious intention of outraging the religious feelings of Muslims in India and insult or attempt to insult religion and religious beliefs of Muslims and of those who accept Muhammad as their prophet;
And whereas the Governor is also of opinion that in the matters written in the said book contained in the quoted passages in the Schedule Muhammad is stated to have adopted subterfuges for committing murder and other heinous offences and for utilizing religion to murder people belonging to other religious and drench himself in their blood proclaiming that he did so at the instance of ALLAH;
And whereas it is stated in the above passages that, according to Muhammad the precepts of ALLAH ordained exploitation, torture and dominance by men over women;
And thereby deliberately and with malicious intention of outraging the religious feelings of Muslims of India insults or attempts to insult the religion of or the religious beliefs of the Muslims and the publication of such matter is punishable under Section 295A of the Indian Penal Code (Act 45 of 1860);
Now therefore, in exercise of the power conferred by Section 95 of the Code of Criminal Procedure, 1973 (2 of 1974), and in suppression of the Notification No. 231-RS dated, the 27th November-, 2003, the Governor is pleased hereby to declare, with immediate effect, every copy of the said book and all other documents containing copies, reprints or transaction thereof and extracts therefrom, be forfeited to the Government."
76. The relevant portion of the prayer sought for in the application is as under:
"In the premises, it is humbly prayed that Your Lordships may be graciously pleased to admit the instant application, issue usual notices, call for the records, and after perusing the records and after hearing the parties set aside the impugned notification bearing No. 292-RS dated 30.4.2004 issued by the opposite party and/or pass such other incidental and/or consequential order or orders as Your Lordships may deem fit and proper."
77. The core question which had come up for determination was whether there was justification, on the grounds formed by the State, for forfeiture of the Bengali book 'Dwikhandita' for the alleged offending passages contained in the paragraphs in pages 49-50 of the book as mentioned in the Schedule to the impugned notification.
78. In order to appreciate the issue and decide on the validity of the order of forfeiture, it is necessary to go into the legislative history behind the incorporation of Section 295A of the Indian Penal Code, (for short 'the IPC)
79. The Government by Section 2 of the Act XXV of 1927 had introduced Section 295A in the IPC. The said section is as under:
"Whoever, with deliberate and malicious intention of outraging the religious feelings of any class of citizens of India, by words, either spoken or written, or by signs or by visible representations or otherwise insults or attempts to insult the religion or the religious beliefs of that class, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both."
80. The intention of the framers of the said section is evident in the report of the Select Committee:
"...that the essence of the offence is that the insult to religion or the outrage to religious feelings must be the sole, or, primary, or at least the deliberate and conscious intention....
Further, we were impressed by an argument to the effect that an insult to a religion or to the religious beliefs of the followers of a religion might be inflicted in good faith by a writer with the object of facilitating some measure of social reform by administering such a shock to the followers of the religion as would ensure notice being taken of any criticism so made. We have therefore amplified the words 'with deliberate intention' by inserting reference to malice, and we think that the section which we have now evolved will be both comprehensive and at the same time of not too wide an application."
81. Since Section 295A is the expression of the legislative will, while interpreting it the report of the Select Committee may be of some assistance in construing the intention of the legislature behind the introduction of the said section. The function of a Court is to interpret the section and the Court in its wisdom may bound to rely upon the report of the Committee.
82. Let us examine Section 295A of the IPC in the light of the above. From a reading of the section it is clear that anybody who, with a deliberate or wilful intention of outraging a class of citizens of India, insults or attempts to insult the religion or religious beliefs shall be punishable. So the intention must be deliberate, conscious, wilful and malicious to outrage the religious feelings of any class of citizens of India. The report of the Committee, however, concedes that even harsh words to inflict insult to a religion or its religious beliefs are permissible for facilitating some measure of social reform by administering such a shock as would ensure notice being taken of any criticism made.
83. The words of the Select Committee find its echo in the case of Ramji Lal Modi v. State of U.P.,where the Apex Court was pleased to hold as under:
"In the next place Section 295A does not penalize any and every act of insult to or attempt to insult the religion or the religious beliefs of a class of citizens but it penalizes only those act of insults to or those varieties of attempts to insult the religion or the religious beliefs of a class of citizens, which are perpetrated with the deliberate and malicious intention of outraging the religious feelings of that class. Insults to religion offered unwittingly or carelessly or without any deliberate or malicious intention to outrage the religious feelings of that class do not come within the section...."
(Paragraph 9 )
84. This paragraph sets the tone for interpreting the section. A reading of the paragraph shows that the language, however, offensive cannot be the deciding factor unless the motive is conscious and malicious for outraging the religious feelings of a class. Therefore, unless it is deliberate and malicious, it would not come within the purview of Section 295A of the IPC.
85. In Ramlal Purl v. State of Madhya Pradesh, , in a petition challenging a notification forfeiting a book 'Agni Pariksha' in exercise of the powers conferred by Section 99A of the Code of Criminal Procedure, 1898 since some couplets finding place in some pages of the said book were grossly offensive and provocative and contained matters which were deliberately and maliciously intended to outrage the religious feelings of Sanathani Hindus by insulting the religion and religious beliefs, it was held as under:
"I am unable to gather any such grossly offensive and provocative matter, nor am I able to visualise any deliberate and malicious intention on the part of the author to outrage the religious feelings of the Sanathani Hindus. The ingredients of an offence under Section 295A, IPC (which has been reproduced above) are the same, namely, there should be deliberate and malicious intention of outraging the religious feelings of any class of citizens. The mere fact the learned author used such words as 'Kulta' or 'Duracharani' with reference to Sita not as a comment but as the accusations of the conspirators and the rumour-mongers that cannot by itself establish his intention as contemplated by the Section 295A, IPC. It may be that there may be other synonyms for such words or that they may be expressible in milder terms. But I am unable to hold that any such grossly offensive and provocative matter is contained in those couplets.
(Paragraph - 23) (Emphasis supplied)
Thus, in Ramlal Puri (supra) the language resorted to by the author came under scrutiny.
86. In this context the observation of the Special Bench of the Bombay High Court in G. V. Godse v. Union of India, reported in 1971 Cr. LJ 324 dealing with the order of forfeiture passed by the Delhi Administration under Section 99A of the Code of Criminal Procedure, 1898 and sustainability of a charge under Section 153A of the IPC needs mention. It was observed:
"It is enough to show that the language of the writing is of a nature calculated to promote feelings of enmity or hatred for, a person must be presumed to intend the natural consequences of his act. (3) The matter charged as being within the mischief of Section 153A 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. (4) 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...."
(paragraph 64) (Emphasis supplied)
87. Regarding the issue, the book in question in that case would foment communal passion, the Court had observed thus:
"A passage here or a passage there, sentence here or a sentence there, a word similarly, may if strained and torn out of context supply inflammatory matter to a willing mind. But such a process is impermissible. We must read the book as a whole, we must not ignore the context of a passage and we must try and see what, reasonably, would be the reaction of the common reader. If the offending passages are considered in this light, the book shall have to be cleared of the charge levelled against it."
(Paragraph 279) (Emphasis supplied)
88. Thereafter, the Special Bench went on to hold:
"This finishes the assessment of the offending passages. True it is, that in passages which occur at pages 76, 117,129, 144 and 221, the author has given a strong expression to his views. But these perhaps are the only passages in a book of 320 pages, which reflect on the attitude of the Muslims. Besides, one must read them in their proper context and of that we have said enough."
89. Therefore, a reader should not be oblivious of the larger context in which the book was written and it should be read as a whole.
90. In Kali Charan Sharma v. King Emperor, reported in AIR 1927 Allahabad 649 the Court examined the title of the book, the preface, a particular passage and chapters, particularly, 9 and 11 which were indecent. The Court found thus:
"The writer undertakes to prove in his book that the Prophet was guilty of acts which no decent man could describe and to show that he was in fact a person of such abandoned and infamous character...."
(Page 651)(Emphasis supplied )
Thereafter, the Court held:
"This matter must be judged primarily by the language of the book itself though it is permissible to receive and consider external evidence either to prove or rebut the meaning ascribed to it in the order of forfeiture.
If the language is of a nature calculated to produce or to promote feelings of enmity or hatred the writer must be presumed to intent that which is act was likely to produce....
(Page 652 ) (Emphasis supplied )
Thereafter, the Court observed as under:
I have sought, therefore, to judge the intention of writer from its own declarations in the book, from the nature of the language he has used and from the circumstances in which the book was published and I cannot entertain any doubt, in spite of the author's protestations to the contrary, that the book was conceived and written with the deliberate intention not only on exciting odium against the founder of Mahomedan religion, but of promoting in Hindus feelings of hatred or enmity against their Muslim fellow subjects. I pay no attention to the plea that the statements contained in the book are supported by authority';...."
(Pages 652-653 ) (Emphasis supplied )
91. There the Court had the occasion to judge the intention of the writer from the declaration in the book, the language used and the circumstances in which it was published.
92. In Khalil Ahmed v. State, while dealing with the forfeiture of six books the Court observed that the central theme of the six books in question was the alleged bad character of Muawiya. Thereafter, referring to a few passages from each of the six books it was held:
"It will be noticed that the general argument of the author in these six books is that Muawiya was man of despicable character."
(Paragraph 20) (Emphasis supplied)
93. Referring to a statement in the counter-affidavit, the Court held that there was:
"an admission that certain persons who claim to be Sunni Muslims object to the maligning of Muawiya and his parents. We may, therefore, take it that, certain persons object to the maligning of Muawiya and his parents. It makes little difference whether these persons are described as Sunni Muslims as claimed by Abdul Malik, or as Nasibis as suggested by the applicant. Apparently these persons prefer to describe themselves as Sunnis."
"The main ingredient of Section 295A IPC is insult to religion or religious beliefs of a class of citizens of India. If a person has great regard for Muawiya as a religious leader, he is likely to be offended if Muawiya is described as a man of mean character. Those persons, who describe themselves as Sunnis and have great regard for Muawiya, can well be described as a class of citizen of India. So the books written by the applicant constitute insult to the religious beliefs of class of citizens of India."
In that case the general argument of the author in all the volumes and the admission came up for consideration.
94. In the State of Mysore v. Henry Rodrigues and Anr., reported in 1962(2) Cr. LJ 564, the Court considered that --
"...The subject of attack in the articles concerned which were certain practices and beliefs of the followers of the Roman Catholic Religion; the main targets of attack are, the worship of Virgin Mary, the distribution of wafers and obedience to the Pope, the Roman Church and the priests of that Church."
(Paragraph 2) (Emphasis supplied)
The Court went on to hold that --
"...There cannot be any doubt that the language used by the first respondent in most of these articles is abusive, often times insulting and it must have caused very great pain to the followers of Roman Catholic Church".
(Paragraph 3) (Emphasis Supplied)
95. The Court, I find, while allowing the appeal had considered the subject of the attack in the articles.
96. Thus, from the report of the Select Committee, the language of Section 295A of the IPC and the judgements mentioned, following points can be deduced:
a) The context and the circumstances in which the book has been written has to be taken into consideration.
b) The book should be read as a whole and stray passages and/or sentences here and there are irrelevant.
c) There should be deliberate, conscious, wilful and malicious intention of outraging the religious feelings of any class of citizens of India by words, either spoken or written or otherwise, or there should be insult or attempt to insult religion or religious belief in a book, for it to invite forfeiture.
d) Insult to a religion or to the religious beliefs of the followers of a religion may be inflicted in good faith by the writer with the object of facilitating some measure of social reform by administering a shock to the followers of the religion.
e) insult or attempt to insult religion or religious beliefs has to be the theme of the book for it to invite forfeiture.
Now let us turn to the book in question titled 'Dwikhandita'. It is an autobiographical work, the 3rd volume of a trilogy.
97. The author is a doctor by profession. The autobiography was written in the background of political-socio-economic scenario in Bangladesh. She gives vent to her anguish by referring to her experiences, at the deplorable state of women in her country. Being a woman she is conscious of the condition of the most of the womenfolk in her country who are illiterate and steeped in superstition and subjugated under men.
98. The writer glowingly mentions the liberation her country from foreign yoke. But she laments the subsequent transformation of the country into a theocratic State. To her the onslaught of the State religion is crushing. In chapter five of the book 'Dwikhandita' under the caption 'Paroloukik mulo' she gives vent to her thoughts and feelings, and describes religion as the root of all troubles. From the first four sentences of the allegedly offending paragraph in page 49 of the book it is crystal clear that the author is contemptuous of all religions, as to her they are the root cause of social malaise in general, and oppression on women, in particular. She feels no religion has ever brought any good to any society. It has spread darkness. It is only ignorance and fear of death that has given rise to religions. She refers to Islam only as an instance in the context of her own native country that is Bangladesh. Subsequently the author has given a historical background of a particular religion and has described that religion as the root of all troubles, especially oppression on women, which she deeply feels, being a woman herself. She is pleading for the emancipation of women and feels all religions, Islam in the context of a theocratic State, which is the country other origin, detrimental to such emancipation.
99. The inclusion of the first four sentences as noted hereinbefore in the alleged offending passage calls into question whether the State had applied its mind before issuing the notification impugned since it does not speak of any religion in particular.
100. It is evident from a reading of Section 295A and the various judgements noted above, to have the work of an author censored it has to be proved that the author deliberately and with malicious intention by his/her writings had outraged the religious feelings of any class of citizens of India, or had attempted to insult the religion or religious beliefs of that class.
101. Now, the question is whether after reading the paragraphs mentioned in the schedule to the notification it can be said that there were sufficient grounds to form the opinion that the offending passages comes within the ambit of Section 95 of the Cr. PC read with Section 295A of the IPC.
102. It requires no further mention that the parameters for bringing a book within the scope of Section 95 of the Cr. PC read with Section 295A of the IPC are now well-established. Reading the book we are unable to share the view, that, though it contains harsh language against the Prophet, that there was deliberate and malicious intention of the author to outrage the religious feelings or beliefs of the Muslim citizens of India. To put it in another way - the author did not pen down the book which is written in the circumstances and the background of the country other origin -with deliberate and malicious intention of outraging the religious feelings of any class of citizens of India and thus, the book cannot be brought under the ambit of Section 295A. Therefore, in the instant case Section 295A is wholly inapplicable.
103. In addition it reiterated that the theme of the book is not any religion nor the role of its Prophet; rather the writer laments and condemns the hapless condition of women in a male dominated patriarchal society in the country of her origin which is theocratic. A few comments made in the book are intended to be in good faith to arouse the consciousness of a community, in her native country, which is in a state of stupor, a kind of shock therapy with the hope of some measure of social reform for the uplift of the condition of women.
104. Besides the point of law, there is another angle to the issue to be considered. There were no reports of any communal trouble, tension or disharmony of any nature among various communities in India after the publication of the book in November, 2003. Subsequently, it had gone in for a reprint in the same month. This goes to show that the citizens of this country and especially the followers of Islam whose sentiments, it is alleged the book had hurt, are responsible and mature enough to examine the book in the right perspective, ignore any comments, whatsoever, in a book by a single individual on their Prophet whom they hold in highest reverence. Rather, the banning of the book calls into question the sanity, catholicity and maturity of the socially aware followers of Islam in India, and is an insult to their understanding and spirit of tolerance.
105. Thus, as the book written in the context of author's country of origin does not deliberately and maliciously intend to outrage the religious feelings of. any community of India, and since the theme of the book is the hapless condition of women in that country, in our view, it does not come within the ambit of Section 295A of the IPC and, therefore, the order of forfeiture under Section 95 of the Code of Criminal Procedure. 1973 is unwarranted, cannot be sustained, and is, therefore, set aside.
C. R. R No. 1621 of 2004 with C. R. R. No. 182 of 2004 September 22, 2005
106. After the judgment is delivered, the learned Counsel for the respective parties pray for urgent xerox certified copy of this judgment. Let xerox certified copy of this order be furnished to the respective applicants, if applied for, within a week from the date of such application.
107. Mr. Safiullah, the learned Counsel on behalf of the State, prayed for stay of operation of the judgment and order for a period of six weeks. Mr. Bagchi, appearing for the applicant, however, opposes the said prayer.
105. The judgment we have delivered consists of the views of all the three members of the Bench and each of us were very clear in our mind and we do not perceive slightest of doubt about the way we have dealt with the case and the law is settled and clear on the subject applying the test, we do not have any doubt about the outcome that we have arrived at. Therefore, we do not think that this is case fit for granting any stay, as prayed for. The stay is refused.
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