MOST FOOLISH JUDGEMENT BY SUPREME COURT ELEVATED JUDGES In RE TRUTH WILL MAKE BHARAT MATA RICH, NOT THE CULT OF ISLAM The Special Bench set aside the notification. The Special Bench observed that the High Court cannot sustain an order of forfeiture on grounds other than those mentioned in the said order. The High Court cannot add to the grounds given by the State in the notification, but can simply review the book on merits, to determine if it is satisfied AJN 47 with the grounds given in the order of forfeiture. Following are the points which according to the Special Bench must be kept in mind before inquiring whether a charge can be sustained on the date disclosed in the order of forfeiture. “64. While inquiring whether such a charge can be sustained on the date disclosed in the order of forfeiture, namely the offending passages read in the context of the book as a whole, it is important to remember that : (1) Under Section 153A 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 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 AJN 48 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 a charge under Section 153A 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 as e.g. to promote feelings of enmity or hatred between different classes or communities. But adherence to the strict path of history is not by itself a complete defence to a charge under Section 153A. In fact, greater the truth, greater the impact of the writing on the minds of its readers, if the writing is otherwise calculated to produce mischief.” 29. In M/s. Varsha Publications Pvt. Ltd., the State of Maharashtra issued Notification dated 31/7/1982 under Section 92 of the Code of Criminal Procedure (2 of 1974) (for short, “Code of 1974”) declaring the issue of a popular Marathi Daily “Shree” forfeited on the ground that it contained matters which would be punishable under Section 153-A of the IPC. The notification stated that the said publication and its cover contain matter which purports to prove that in Pre-Islamic times the ancient AJN 49 Indian culture and Hindu religion were in vogue in Arabia and that the Islamic religion, culture and art were greatly influenced by the Indian culture and religion and which thereby promotes on the grounds of religion and race disharmony or ill-will between the Muslim and Hindu communities and commits an act which is prejudicial to the maintenance of harmony between the said two communities and which is likely to disturb the public tranquility. The publisher of the said publication challenged the notification. It was argued that the notification must state the grounds on the basis of which the State Government has formed its opinion that the issue in question contained matter which is punishable under Section 153-A of the IPC. In the absence of such grounds, the Notification will be bad in law. 30. The Special Bench of this Court referred to thejudgments of the Supreme Court in Harnam Das and in Lalai Singh Yadav and held that the notification in question did not contain any grounds; that mere mention AJN 50of the article or a part thereof in the notification would not constitute grounds contemplated by Section 95 and therefore, it would be difficult for the State to contend that the notification stated grounds and had complied with the mandatory provisions of law. The Special Bench took note of the fact that it was stated in the petition that just below the printed article, there was a list containing various books to which the author has made a reference. It was contended that the article was a historical and literary composition made in a temperate language. Truth of the averments made in the petition were not denied. After analyzing the article, the Special Bench held that it will be very difficult for the State to contend that a narration of history would promote violence, enmity and hatred. The Special Bench observed that if such a contention is accepted, a day will come when that part of history which is unpalatable to a particular religion will have to be kept in cold storage on the pretext that publication of such history would constitute an offence punishable under Section 153-A of the IPC. A nation AJN 51 would have to forget it’s own history and in due course nation will have no history at all. The writing being a historical research, observed this court, it cannot be allowed to be thwarted on a plea that publication of such material would be hit by Section 153-A of the IPC. This court in the circumstances, quashed the notification. 31. In Anant Dighe, the Government of Maharashtra issued notification under Section 95(1) of the Code declaring that every copy of the Marathi play entitled “Mee Nathuram Godse Bolto” be forfeited to the Government. The notification inter alia stated that the play in question contained derogatory references towards Mahatma Gandhi and certain communities and was likely to disturb public tranquility and that it was written with a deliberate and malicious intention to outrage feelings of the followers of Mahatma Gandhi and therefore, the publication would be punishable under Section 153-A and 295- of the IPC. The challenge to the notification was repelled by the Special Bench of this court, to which one AJN 52 of us (D.Y. Chandrachud, J.) was a party. After considering the relevant judgments, this court observed that the notification did not contain grounds of the Government’s opinion. The notification did not state what part of the play would render the printed material punishable under Section 153-A or the groups between whom feeling of enmity is likely to be created. The notification had merely employed statutory language. There was no reference in the notification of there being any deliberate or malicious intention of outraging the religious feelings of any class of citizens. This court noted that lacunae in the notification cannot be permitted to be supplemented in the affidavits filed in the course of proceedings. While stressing the importance of the guarantee of freedom of speech and expression under Article 19(1)(a) of the Constitution, this court observed as under: “But, it is important to realize that there are eternal values on which the Constitution of a Democracy is founded. Tolerance of a diversity of view points and AJN 53 the acceptance of the freedom to express of those whose thinking may not accord with the mainstream are cardinal values which lie at the very foundation of a democratic form of Government. A society wedded to the Rule of law, cannot trample upon the rights of those who assert views which may be regarded as unpopular or contrary to the views shared by a majority. The law does not have to accept the views which have been expressed by the petitioner in the play in order to respect the right of the petitioner as a playwright to express those views. Respect for and tolerance of a diversity of viewpoints is what ultimately sustains a democratic society and Government.
Posted on: Sat, 21 Sep 2013 11:13:25 +0000
Trending Topics
Recently Viewed Topics
© 2015