State of Maharashtra v. Sangharaj Damodar Rupawate (2010) - SC on 'Shivaji - Hindu King in Islamic India' Book Forfeiture

• DATE OF JUDGEMENT: 9 July, 2010.
• JUDGES: Justice D.K. Jain, Justice H.L. Dattu
• REFERENCE: [2010] 7 SCC 398
• PARTIES: State of Maharashtra & Ors. (Plaintiff) and Sangharaj Damodar Rupawate & Ors. (Respondent)

SUBJECT

The following judgement deals with Section 95(1) Cr.P.C, the Maharashtra State Government administered forfeiture of every copy of the book “Shivaji – Hindu King in Islamic India” written by the author Prof. James W. Laine. This notification specified that in the opinion of the State Government of Maharashtra, circulation of the mentioned book, containing derogatory references to Shivaji, led to causing enmity between communities and had led the way to acts of violence and disharmony and that any further circulation of the above mentioned book was to be expected to result in breach of peace and public tranquility at large.

AN OVERVIEW

1. The publication of the book led to an FIR (First Information Report) being filed for offences under Sections 153, 153-A read along with Section 34 IPC (Indian Penal Code) had been registered against the author of the book.
2. A petition was filed under Sections 96 Cr.P.C read along with Article 226 of the Constitution of India, by the respondents herein and others, it was set aside and quashed by the High Court in the said notification.
3. The State later filed an appeal there against by special leave.
4. This case was decided by a 2-Judge Bench of the Supreme Court and it dismissed the above mentioned appeal.

IMPORTANT PROVISIONS

Constitution of India

• Article 19(1)(a)- right of freedom of speech and expression

Indian Penal Code

• Section 34- is a species of constructive liability that renders every member of a group who shares such intention responsible for the criminal act committed by anyone of them when such an act is done in furtherance of the common intention.
• Section 153(A) - to punish persons who indulge in wanton vilification or attacks upon the religion, race, place of birth, residence, language etc of any particular group or class or upon the founders and prophets of a religion.

Criminal Procedure Code

• Section 95(1) - 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 authorise 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.

ISSUES

The following are the major issues framed by the Supreme Court-

• To use the power to issue a declaration of forfeiture under Section 95 Cr.P.C. it is therefore mandatory that a declaration by the State Government in the form of notification, to the effect that every copy of the issue of the newspaper, book or document be forfeited to the Government, must state the grounds on which the State Government has formed a particular opinion. A mere citation of the words of the section is sufficient?
• The right to freedom of speech and expression as envisaged in Article 19(1) (a) of the Constitution is directly impacted by the power to forfeit newspaper, book or document. Is such use of power a drastic one?
• The notification does not identify the communities between which the book had caused or was likely to cause enmity? Along with the claim of breach of tranquility was too vague a ground?

ANALYSIS OF THE JUDGEMENT

The conditions of speech plays an important role in determining its legitimacy under Article 19(1) (a) of the Constitution of India.

1. The statement that states the grounds of its opinion by the State Government is mandatory and is a total absence therefore it would defect the declaration of forfeiture. On that account, the grounds of the Government’s opinion should (must) be stated in the notification provided under Section 95 of the Code and while testing the validity of the notification the Court has to confine the inquiry to the grounds so disclosed.
2. The basis of opinion must mean culmination of facts on which the opinion is based. Such grounds must necessarily be the effect of matters contained in the offending publication, either as a whole or in parts of it, as illustrated by passages which the Government may choose. The mere reiteration of an opinion or reproduction of the section will not answer the requirement of a valid notification. However, simultaneously, it is not necessary that the notification must bear a verbatim record of the forfeited material or give a detailed gist.

3. Validity of the order of forfeiture would depend on the merits of the grounds. The High Court must set aside the order of forfeiture if there are no grounds of opinion because if no grounds of opinion exist, it cannot be concluded that the grounds given by the Government justify the order. Concluding, it is not the duty of the High Court to discover for itself whether the book contained any such matter.

4. The State cannot extract deviated sentences of portions of the book and come to a unearthing that the said book as a whole ought to be forfeited.

5. The desire of the author has to be gathered from the language, contents and import of the offending material. If such allegations made in the offending article are based on folklore, tradition or history, something in extenuation could perhaps be said for the author.

6. If such writing is taken into account to promote feelings of enmity or hatred, it is no defense to a charge under Section 153-A IPC that the writing contains a truthful account of past events or is otherwise supported by good authority. Adherence to the strict path of history is not by itself a whole defense to a charge under Section 153-A IPC.

7. Section 95(1) of the P.C postulates that the ingredients of the offences stated in the notification should “appear” to the Government to be present. It does not require that it should be “proved” to the satisfaction of the Government that all requirements of punishing sections, including mens rea, were established as a whole.

8. The ultimate onus to dislodge and rebut the prima facie opinion of the Government that the offending publication comes within the ambit of the relevant offence, including its requirement of its objective is on the applicant and such intention has to be gathered from the language, contents and import therefrom.

CONCLUSION:

The approach adopted by the Supreme Court to put simply in words was held that it would be to say that “the effect of the words used in the offending material must be judged from the standards of reasonable, strong-minded, firm and courageous men, and not those of weak and vacillating minds, nor of those who scent danger in every hostile point of view”. Consequently, the class of readers for whom the book is primarily meant would also be relevant for judging the probable consequences of the writing. Thus once the said matter reaches the court of law and having full faith in judicial system, it can be said that the Court would not let an innocent person suffer. Although no one protects the accused from the unnecessary outrage every time, abuse of process and unnecessary arrests, economic cost, and loss of repute and time… Everything cannot be shielded from a person.