Power to declare a Document as Forfeit to the Government

Facts: Prof. James W. Laine published a book titled Shivaji—Hindu King in Islamic India. Thereafter, the publisher-Respondent 5 received a letter from four historians whereby the publisher and the author had been asked to, retract the objectionable statement complained of and tender an apology. The publisher expressed regrets for the said statement and informed the objectors that instructions had been issued to all his offices in India to immediately withdraw all copies of the book from circulation. After withdrawal of the book from circulation, a mob at Pune blackened the face of a Sanskrit scholar Shri Shashikant Bahulkar whose name appeared in the acknowledgment of the book, having helped the author, Prof. James W. Laine, by providing him with some information during his visit to Pune. The author Prof. James W. Lame sent a fax, apologising for the mistake, if any, committed in writing the passage and stated that he only was responsible for the said statement written in the book, and the publisher was not at all responsible for the same. Thereafter, a mob of 100 to 125 persons allegedly belonging to the Sambhaji Brigade ransacked Bhandarkar Oriental Research Institute (BORI), Pune and destroyed a large number of books and rare manuscripts. Thereafter, Respondent 4, the author, in an interview, explained the reason for writing the book and expressed deep anguish at the destruction of rare manuscripts and books in BORI, Pune.

Four days after the alleged incident, the State of Maharashtra, the appellant herein, registered a first information report (FIR) at Deccan Police Station, Pune, against Respondents 4 to 6 i.e. Prof. James W. Laine, the author; Mr Manzar Sayeed Khan, the publisher and Mr Vinod Hansraj Goyal, the printer of the book under Sections 153, 153-A and 34 of the Penal Code, 1860 (IPC).

Thereafter, in exercise of powers conferred by sub-section (1) of Section 95 of the Code, the Government of Maharashtra issued a Notification declaring that every copy of the aforementioned book shall be forfeited to the Government. The said notification was challenged in the Bombay High Court by Respondents 1 to 3 herein. However, during the pendency of the petition, this notification was withdrawn and another Notification was issued by which in exercise of the powers conferred by sub-section (1) of Section 95 of the Code of Criminal Procedure, 1973 (2 of 1974) read with Section 21 of the General Clauses Act, 1897 (10 of 1897) and of all other powers enabling it in that behalf, the Government of Maharashtra declared that every copy of the said book shall be forfeited to the Government. The said notification was challenged by an application under Section 96 of the Code of Criminal Procedure, 1973 read with Article 226 of the Constitution of India mainly on the grounds that: (i)there was no material to show that the publication of the book had resulted in disturbance of public tranquility or maintenance of harmony between various groups as set out therein, and (2) the publication does not disclose any offence under Section 153-A IPC. Finding substance in both the grounds, by the impugned judgment, the High Court of Judicature at Bombay, quashed and set aside the Notification.

Discussion:

Section 95 of the Code is an enabling provision, which, in the circumstances enumerated in the section, empowers the State Government to declare that copy of a newspaper, book or document be forfeited to the Government. It is evident that the provision deals with any newspaper, book or document which is printed. The power to issue a declaration of forfeiture under the provision postulates compliance with twin essential conditions viz. (i) the Government must form the opinion to the effect that such newspaper, book or document contains any matter, the publication of which is punishable under Section 124-A or Section 153-A or Section 153-B or Section 292 or Section 293 or Section 295-A IPC, and (ii) the Government must state the grounds of its opinion. Therefore, it is 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 not sufficient.

Section 96 of the Code entitles any person having any interest in any newspaper, book or other document, in respect of which a declaration of forfeiture is made under Section 95 of the Code, to move the High Court for setting aside the declaration on the ground that it does not contain any such matter as is referred to in sub-section (1) of Section 95.

Undoubtedly, the power to forfeit a newspaper, book or document is a drastic power inasmuch as it not only has a direct impact upon the due exercise of a cherished right of freedom of speech and expression as envisaged in Article 19(l)(a) of the Constitution, it also clothes a police officer to seize the infringing copies of the book, document or newspaper and to search places where they are reasonably suspected to be found, again impinging upon the right of privacy. Therefore, the provision has to be construed strictly and exercise of power under it has to be in the manner and according to the procedure laid down therein.

The scope and width of a somewhat similar provision contained in Section 99-A of the Code of Criminal Procedure, 1898 (the 1898 Code) was examined by a Constitution Bench of this Court in Harnam Das v. State of U.P. Speaking for the majority, A.K. Sarkar, J. held that in that case though the order of forfeiture passed by the Government had set out its opinion that the books contained matters the publication of which was punishable under section 153-A and 295-A IPC but it did not state, as it should have the grounds of that opinion. So it is not known which communities were alienated from each other or whose religious beliefs had been wounded nor why the Government thought such alienation or offence to religion had been caused.”

Striking down the order of forfeiture, the learned Judge observed as under:

“Two things appear clearly from the terms of this section. The first thing is that an order under it can be made only when the Government forms a certain opinion. That opinion is that the document concerning which the order is proposed to be made, contains ‘any matter the publication of which is punishable under Section 124-A or Section 153-A or Section 295-A of the Penal Code’. Section 124-A deals with seditious matters, Section 153-A with matters promoting enmity between different classes of Indian citizens and Section 295-A with matters insulting the religion or religious beliefs of any class of such citizens. The other thing that appears from the section is that the Government has to state the grounds of its opinion. The order made in this case, no doubt, stated that in the Government’s opinion the books contained matters the publication of which was punishable under Sections 153-A and 295-A of the Penal Code. It did not, however, state, as it should have, the grounds of that opinion. So it is not known which communities were alienated from each other or whose religious beliefs had been wounded according to the Government, nor why the Government thought that such alienation or offence to religion had been caused.”

Significance of setting out the grounds of the opinion of the Government was again emphasised in Narayan Dass Indurakhya v. State of M.P. It was observed that grounds must be distinguished from the opinion, as grounds of the opinion must mean the conclusion of facts on which the opinion is based. The Court said:
“6. There is a considerable body of statutory provisions which enable the State to curtail the liberty of the subject in the interest of the security of the State or forfeit books and documents when in the opinion of the Government, they promote class hatred, religious intolerance, disaffection against the State, etc. In all such cases, instances of some whereof are given below the State Government has to give the grounds of its opinion. Clearly the grounds must be distinguished from the opinion. Grounds of the opinion must mean the conclusion of facts on which the opinion is based. There can be no conclusion of fact which has no reference to or is not ex facie based on any fact.” It was also observed that mere repetition of an opinion or reproduction of the section without giving any indication of the facts will not answer the requirement of a valid notification.

Section 99-A of the 1898 Code again came up for consideration before a Bench of three Judges of this Court in State of U.P. v. Lalai Singh Yadav. Emphasising the importance of furnishing of grounds by the Government for its opinion, speaking for the Bench, V.R. Krishna Iyer, J. observed as under:

“8. A drastic restriction on the right of a citizen when imposed by statute, calls for a strict construction, especially when quasi-penal consequences also ensue. The imperial authors of the Criminal Procedure Code have drawn up Section 99-A with concern for the subject and cautionary mandates to Government. The power can be exercised only in the manner and according to the procedure laid down by the law. Explicitly the section compels the Government to look at the matter which calls for action to consider it as to the clear and present danger it constitutes in the shape of promoting feelings of enmity and hatred between different segments of citizens or as to its strong tendency or intendment to outrage the religious feelings of such segments (there are other proclivities also stated in the section with which we are not e concerned for the present purpose) and, quite importantly, to state the grounds of its opinion. We are concerned with the last ingredient. When the section says that you must state the grounds it is no answer to say that they need not be stated because they are implied. You do not state a thing when you are expressively silent about it. To state ‘is to declare or to set forth, especially in a precise, formal or authoritative manner; to say (something), especially in an emphatic way; to assert’ (Random House Dictionary). The conclusion is inescapable that a formal authoritative setting forth of the grounds is statutorily mandatory.”

While reiterating that a formal authoritative setting forth of the grounds is statutorily mandatory and the Court cannot make a roving enquiry beyond the grounds set forth in the order and if the grounds are left out altogether then there is nothing available to the Court to examine and the notification must fail, the Court in Lalai Singh Yadav case also observed that the grounds or reasons linking the primary facts with the forfeiter’s opinion need not be stated at “learned length”. In some cases, a laconic statement may be enough; in others a longer ratiocination may be proper. The order may be brief but it cannot be blank as to the grounds which form the basis of the opinion on which the Government relies. It was also observed that since an order of forfeiture constitutes a drastic restriction on the rights of a citizen, the relevant provisions of the Code have to be strictly construed.

Recently in Baragur Ramachandrappa v. State of Karnataka this Court again considered the scope of Section 95 of the Code. Approving the interpretation of Sections 95 and 96 of the Code given by a Special Bench of the Patna High Court in Nand Kishore Singh v. State of Bihar, wherein it was observed that it would be fallacious to mathematically equate the proceedings under Sections 95 and 96 of the Code with a trial under Section 295-A IPC with the accused in the dock, the Court went on to elucidate that Section 95 did not require that it should be “proved” to the satisfaction of the State Government that all requirements of the punishing sections including mens rea were fully established and all that Section 95(1) required was that the ingredients of the offence should “appear” to the Government to be present. While observing that Section 95 of the Code exemplifies the principle that freedom of speech and expression is not unfettered, this Court commended that freedom must be available to all and no person has a right to a impinge on the feelings of others on the premise that his right to freedom of speech remains unrestricted and unfettered. It cannot be ignored that India is a country with vast disparities in language, culture and religion and unwarranted and malicious criticism or interference in the faith of others cannot be accepted.”

It would thus appear that no inflexible guidelines can be laid down to test the validity of a notification issued under Section 95 of the Code. Nonetheless the following legal aspects can be kept in mind while examining the validity of such a notification:

(i) The statement of the grounds of its opinion by the State Government is mandatory and a total absence thereof would vitiate the declaration of forfeiture. Therefore, the grounds of the Government’s opinion must be stated in the notification issued 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;

(ii) Grounds of opinion must mean conclusion of facts on which the opinion is based. Grounds must necessarily be the import or the effect or the tendency of matters contained in the offending publication, either as a whole or in portions of it, as illustrated by passages which the Government may choose. A mere repetition of an opinion or reproduction of the section will not answer the requirement of a valid notification. However, at the same time, it is not necessary that the notification must bear a verbatim record of the forfeited material or give a detailed gist thereof;

(iii) The validity of the order of forfeiture would depend on the merits of the grounds. The High Court would set aside the order of forfeiture if there are no grounds of opinion because if there are no grounds of opinion it cannot be satisfied that the grounds given by the Government justify the order. However, it is not the duty of the High Court to find for itself whether the book contained any such matter whatsoever;

(iv) The State cannot extract stray sentences of portions of the book and come to a finding that the said book as a whole ought to be forfeited;

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

(vi) If the writing is calculated to promote feelings of enmity or hatred, it is no defence 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 complete defence to a charge under Section 153-A IPC;

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

(viii) The 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 intent is on the applicant and such intention has to be gathered from the language, contents and import thereof;

(ix) The effect of the words used in the offending material must be judged from the standards of reasonable, strong-minded, firm and courageous men, and not those of weak and vacillating minds, nor of those who scent danger in every hostile point of view. The class of readers for whom the book is primarily meant would also be relevant for judging the probable consequences of the writing.

Held:
The Court observed that having assessed the validity of the Notification on the touchstone of the aforestated principles, it was of the opinion that in the present case, the conditions statutorily mandated for exercise of power under Section 95 of the Code are lacking and therefore, the action of the Government cannot be sustained. being one of the essential conditions for exercise of power under section 95 that the publication contains matter which is an offence under the various provisions of IPC, the opinion of the State Govt. is based on the factum of registration of an FIR against the authors and others for offences punishable under sections 153 and 153-A r/w section 34 IPC.

The Court observed that they were unable to persuade themselves to agree with the learned counsel for the appellants that only the subjective satisfaction of the State Government was called for and the matter covered by the notification is sufficient and cannot be assailed. It is manifest that the notification does not identify the communities between which the book had caused or is likely to cause enmity. Therefore, it cannot be found out from the notification as to which communities got outraged by the publication of the book or it had caused hatred and animosity between particular communities or groups.

The statement in the notification to the effect that the book is “likely to result in breach of peace and public tranquillity and in particular between those who revere Shri Chhatrapati Shivaji Maharaj and those who may not” is too vague a ground to satisfy the afore-enumerated tests. Moreover, the High Court has also noted that the learned Associate Advocate General was unable to produce or disclose any material or information to find out as to which were the groups based on religion, race, language or religion or caste or communities who do not revere Shri Chhatrapati Shivaji Maharaj. If that be so, no fault can be found with the finding of the High Court to the effect that there is nothing on record on the basis whereof the Government could form the opinion that the book was likely to promote disharmony or feeling of enmity between various groups or likely to cause disturbance to public tranquility and maintenance of harmony between various groups.

In view of the foregoing, the Court agreed with the High Court that the Notification of forfeiture does not fulfil the mandatory requirements of sub-section (1) of Section 95 of the Code and is, therefore, invalid.

See the following Judgment: State of Maharashtra v. Sangharaj Damodar Rupawate (Supreme Court of India, 2010)


Author: Vikrant Narayan Vasudeva
Photo by Renegade98/ CC BY-NC-ND 2.0

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